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diff --git a/40388-8.txt b/40388-8.txt deleted file mode 100644 index a88a7f4..0000000 --- a/40388-8.txt +++ /dev/null @@ -1,17843 +0,0 @@ -The Project Gutenberg EBook of The Life of John Marshall (Volume 1 of 4), by -Albert J. Beveridge - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Life of John Marshall (Volume 1 of 4) - -Author: Albert J. Beveridge - -Release Date: August 3, 2012 [EBook #40388] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LIFE OF JOHN MARSHALL *** - - - - -Produced by David Edwards and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - THE LIFE OF JOHN MARSHALL - - Standard Library Edition - - - IN FOUR VOLUMES - - VOLUME I - - - - - [Illustration: JOHN MARSHALL AT 43 - From a miniature painted in Paris] - - - - - THE LIFE - OF - JOHN MARSHALL - - BY - ALBERT J. BEVERIDGE - - VOLUME I - - FRONTIERSMAN, SOLDIER - LAWMAKER - - 1755-1788 - - [Illustration] - - BOSTON AND NEW YORK - HOUGHTON MIFFLIN COMPANY - The Riverside Press Cambridge - - - - - COPYRIGHT, 1916, BY ALBERT J. BEVERIDGE - COPYRIGHT, 1919, BY HOUGHTON MIFFLIN COMPANY - - ALL RIGHTS RESERVED - - - - -PREFACE - - -The work of John Marshall has been of supreme importance in the -development of the American Nation, and its influence grows as time -passes. Less is known of Marshall, however, than of any of the great -Americans. Indeed, so little has been written of his personal life, and -such exalted, if vague, encomium has been paid him, that, even to the -legal profession, he has become a kind of mythical being, endowed with -virtues and wisdom not of this earth. - -He appears to us as a gigantic figure looming, indistinctly, out of the -mists of the past, impressive yet lacking vitality, and seemingly -without any of those qualities that make historic personages -intelligible to a living world of living men. Yet no man in our history -was more intensely human than John Marshall and few had careers so full -of movement and color. His personal life, his characteristics and the -incidents that drew them out, have here been set forth so that we may -behold the man as he appeared to those among whom he lived and worked. - -It is, of course, Marshall's public work with which we are chiefly -concerned. His services as Chief Justice have been so lauded that what -he did before he ascended the Supreme Bench has been almost entirely -forgotten. His greatest opinions, however, cannot be fully understood -without considering his previous life and experience. An account of -Marshall the frontiersman, soldier, legislator, lawyer, politician, -diplomat, and statesman, and of the conditions he faced in each of these -capacities, is essential to a comprehension of Marshall the constructive -jurist and of the problems he solved. - -In order to make clear the significance of Marshall's public activities, -those episodes in American history into which his life was woven have -been briefly stated. Although to the historian these are twice-told -tales, many of them are not fresh in the minds of the reading public. To -say that Marshall took this or that position with reference to the -events and questions of his time, without some explanation of them, -means little to any one except to the historical scholar. - -In the development of his career there must be some clear understanding -of the impression made upon him by the actions and opinions of other -men, and these, accordingly, have been considered. The influence of his -father and of Washington upon John Marshall was profound and -determinative, while his life finally became so interlaced with that of -Jefferson that a faithful account of the one requires a careful -examination of the other. - -Vitally important in their effect upon the conduct and attitude of -Marshall and of the leading characters of his time were the state of the -country, the condition of the people, and the tendency of popular -thought. Some reconstruction of the period has, therefore, been -attempted. Without a background, the picture and the figures in it lose -much of their significance. - -The present volumes narrate the life of John Marshall before his epochal -labors as Chief Justice began. While this was the period during which -events prepared him for his work on the bench, it was also a distinctive -phase of his career and, in itself, as important as it was picturesque. -It is my purpose to write the final part as soon as the nature of the -task permits. - -For reading one draft of the manuscript of these volumes I am indebted -to Professor Edward Channing, of Harvard University; Dr. J. Franklin -Jameson, of the Carnegie Foundation for Historical Research; Professor -William E. Dodd, of Chicago University; Professor James A. Woodburn, of -Indiana University; Professor Charles A. Beard, of Columbia University; -Professor Charles H. Ambler, of Randolph-Macon College; Professor -Clarence W. Alvord, of the University of Illinois; Professor D. R. -Anderson, of Richmond College; Dr. H. J. Eckenrode, of Richmond College; -Dr. Archibald C. Coolidge, Director of the Harvard University Library; -Mr. Worthington C. Ford, of the Massachusetts Historical Society; and -Mr. Lindsay Swift, Editor of the Boston Public Library. Dr. William G. -Stanard, of the Virginia Historical Society, has read the chapters which -touch upon the colonial period. I have availed myself of the many -helpful suggestions made by these gentlemen and I gratefully acknowledge -my obligations to them. - -Mr. Swift and Dr. Eckenrode, in addition to reading early drafts of the -manuscript, have read the last draft with particular care and I have -utilized their criticisms. The proof has been read by Mr. Swift and the -comment of this finished critic has been especially valuable. - -I am indebted in the highest possible degree to Mr. Worthington C. Ford, -of the Massachusetts Historical Society, who has generously aided me -with his profound and extensive knowledge of manuscript sources and of -the history of the times of which this work treats. His sympathetic -interest and whole-hearted helpfulness have not only assisted me, but -encouraged and sustained me in the prosecution of my labors. - -In making these acknowledgments, I do not in the least shift to other -shoulders the responsibility for anything in these volumes. That burden -is mine alone. - -I extend my thanks to Mr. A. P. C. Griffin, Assistant Librarian, and Mr. -Gaillard Hunt, Chief of the Manuscripts Division, of the Library of -Congress, who have been unsparing in their efforts to assist me with all -the resources of that great library. The officers and their assistants -of the Virginia State Library, the Boston Public Library, the Library of -Harvard University, the Manuscripts Division of the New York Public -Library, the Massachusetts Historical Society, the Pennsylvania -Historical Society, and the Virginia Historical Society have been most -gracious in affording me all the sources at their command. - -I desire to express my appreciation for original material furnished me -by several of the descendants and collateral relatives of John Marshall. -Miss Emily Harvie, of Richmond, Virginia, placed at my disposal many -letters of Marshall to his wife. For the use of the book in which -Marshall kept his accounts and wrote notes of law lectures, I am -indebted to Mrs. John K. Mason, of Richmond. A large number of original -and unpublished letters of Marshall were furnished me by Mr. James M. -Marshall, of Front Royal, Virginia, Mr. Robert Y. Conrad, of Winchester, -Virginia; Mrs. Alexander H. Sands, of Richmond, Virginia; Miss Sallie -Marshall, of Leeds, Virginia; Mrs. Claudia Jones, and Mrs. Fannie G. -Campbell of Washington, D.C.; Judge J. K. M. Norton, of Alexandria, -Virginia; Mr. A. Moore, Jr., of Berryville, Virginia; Dr. Samuel Eliot -Morison, of Boston, Massachusetts, and Professor Charles William Dabney, -of Cincinnati, Ohio. Complete copies of the highly valuable -correspondence of Mrs. Edward Carrington were supplied by Mr. John B. -Minor, of Richmond, Virginia, and by Mr. Carter H. FitzHugh, of Lake -Forest, Illinois. Without the material thus generously opened to me, -this narrative of Marshall's life would have been more incomplete than -it is and many statements in it would, necessarily, have been based on -unsupported tradition. - -Among the many who have aided me, Judge James Keith, of Richmond, -Virginia, until recently President of the Court of Appeals of Virginia; -Judge J. K. M. Norton and the late Miss Nannie Burwell Norton of -Alexandria, Virginia; Mr. William Marshall Bullitt, of Louisville, -Kentucky; Mr. Thomas Marshall Smith, of Baltimore, Maryland; Mr. and -Mrs. Alexander H. Sands; Mr. W. P. Taylor and Dr. H. Norton Mason, of -Richmond, Virginia; Mr. Lucien Keith, Mr. William Horgan, and Mr. -William C. Marshall, of Warrenton, Virginia; Judge Henry H. Downing and -Mr. Aubrey G. Weaver, of Front Royal, Virginia, have rendered notable -assistance in the gathering of data. - -I am under particular obligations to Miss Emily Harvie for the use of -the striking miniature of Marshall, the reproduction of which appears as -the frontispiece to the first volume; to Mr. Roland Gray, of Boston, for -the right to reproduce the portrait by Jarvis as the frontispiece of the -second volume; to Mr. Douglas H. Thomas of Baltimore, Maryland, for -photographs of the portraits of William Randolph, Mary Isham, and Mary -Randolph Keith; and to Mr. Charles Edward Marshall, of Glen Mary, -Kentucky, for permission to photograph the portrait of Colonel Thomas -Marshall. - -The large number of citations has made abbreviations necessary. At the -end of each volume will be found a careful explanation of references, -giving the full title of the work cited, together with the name of the -author or editor, and a designation of the edition used. - -The index has been made by Mr. David Maydole Matteson, of Cambridge, -Massachusetts, and his careful work has added to whatever of value these -volumes possess. - - ALBERT J. BEVERIDGE - - - - -CONTENTS - - - I. ANCESTRY AND ENVIRONMENT 1 - - The defeat of Braddock--Influence on American opinion-- - Washington's heroism--Effect on Marshall's parents-- - Marshall's birth--American solidarity the first lesson - taught him--Marshall's ancestry--Curious similarity to - that of Jefferson, to whom he was related--The paternal - line: the "Marshall legend"--Maternal line: the Randolphs, - the Ishams, and the Keiths--Character of Marshall's - parents--Colonial Virginia society--Shiftless agriculture - and abundant land--Influence of slavery--Jefferson's - analysis--Drinking heavy and universal--Education of the - gentry and of the common people--The social divisions-- - Causes of the aristocratic tone of Virginia society-- - The backwoodsmen--Their character--Superiority of an - occasional frontier family--The Marshalls of this class-- - The illustrious men produced by Virginia just before the - Revolution. - - II. A FRONTIER EDUCATION 33 - - Marshall's wilderness birthplace--His father removes to - the Blue Ridge--The little house in "The Hollow"--Neighbors - few and distant--Daily life of the frontier family-- - Marshall's delight in nature--Effect on his physical and - mental development--His admiration for his father--The - father's influence over and training of his son--Books: - Pope's Poems--Marshall commits to memory at the age of - twelve many passages--The "Essay on Man"--Marshall's father - an assistant of Washington in surveying the Fairfax grant-- - Story of Lord Fairfax--His influence on Washington and on - Marshall's father--Effect on Marshall--His father elected - Burgess from Fauquier County--Vestryman, Sheriff, and - leading man of his county--He buys the land in "The - Hollow"--John Thompson, deacon, teaches Marshall for a - year--His father buys more land and removes to Oak Hill-- - Subscribes to the first American edition of Blackstone-- - Military training interferes with Marshall's reading of - Blackstone--He is sent to Campbell's Academy for a few - months--Marshall's father as Burgess supports Patrick - Henry, who defeats the tidewater aristocracy in the Robinson - loan-office contest--Henry offers his resolutions on the - Stamp Act: "If this be treason, make the most of it"-- - Marshall's father votes with Henry--1775 and Henry's - "Resolutions for Arming and Defense"--His famous speech: - "Give me liberty or give me death"--Marshall's father again - supports Henry--Marshall learns from his father of these - great events--Father and son ready to take the field against - the British. - - III. A SOLDIER OF THE REVOLUTION 69 - - The "Minute Men" of Virginia--Lieutenant John Marshall - drills his company and makes a war speech--His appearance - in his nineteenth year--Uniforms of the frontier--The - sanguinary fight at Great Bridge--Norfolk--The Marshalls - in the Continental service, the father as major, the son as - lieutenant--Condition of the army--Confusion of authority-- - Unreliability of militia "who are here to-day and gone - to-morrow"--Fatal effect of State control--Inefficiency - and powerlessness of Congress--Destitution of the troops: - "our sick naked and well naked"--Officers resign, privates - desert--The harsh discipline required: men whipped, hanged, - and shot--Impression on Marshall--He is promoted to - be captain-lieutenant--The march through disaffected - Philadelphia--Marshall one of picked men forming the - light infantry--Iron Hill--The battle of the Brandywine-- - Marshall's father and his Virginians prevent entire - disaster--Marshall's part in the battle--The retreat-- - The weather saves the Americans--Marshall one of rear guard - under Wayne--The army recovers and tries to stop the British - advance--Confused by false reports of the country people who - are against the patriots "almost to a man"--Philadelphia - falls--The battle of Germantown--Marshall at the bloodiest - point of the fight--The retreat of the beaten Americans-- - Unreasonable demands of "public opinion"--Further decline - of American fortunes--Duché's letter to Washington: - "How fruitless the expense of blood"--Washington faces the - British--The impending battle--Marshall's vivid description-- - The British withdraw. - - IV. VALLEY FORGE AND AFTER 108 - - The bitter winter of 1777--The British in Philadelphia: - abundance of provisions, warm and comfortable quarters, - social gayeties, revels of officers and men--The Americans - at Valley Forge, "the most celebrated encampment in the - world's history": starvation and nakedness--Surgeon Waldo's - diary of "camp-life": "I'll live like a Chameleon upon - Air"--Waldo's description of soldiers' appearance--Terrible - mortality from sickness--The filthy "hospitals"--Moravians - at Bethlehem--The Good Samaritans to the patriots--Marshall's - cheerfulness: "the best tempered man I ever knew"--His pranks - and jokes--Visitors to the camp remark his superior - intelligence--Settles disputes of his comrades--Hard - discipline at Valley Forge: a woman given a hundred lashes-- - Washington alone holds army together--Jealousy of and - shameful attacks upon him--The "Conway Cabal"--His dignity in - the face of slander--His indignant letter to Congress--Faith - of the soldiers in Washington--The absurd popular demand that - he attack Philadelphia--The amazing inferiority of Congress-- - Ablest men refuse to attend--Washington's pathetic letter on - the subject: "Send your ablest men to Congress; Where is - Jefferson"--Talk of the soldiers at Valley Forge--Jefferson - in the Virginia Legislature--Comparison of Marshall and - Jefferson at this period--Marshall appointed Deputy Judge - Advocate of the army--Burnaby's appeal to Washington to stop - the war: efforts at reconciliation--Washington's account of - the sufferings of the army--The spring of 1778--Sports in - camp--Marshall the best athlete in his regiment: "Silver - Heels" Marshall--The Alliance with the King of France-- - Rejoicing of the Americans at Valley Forge--Washington has - misgivings--The services of Baron von Steuben--Lord Howe's - departure--The "Mischianza"--The British evacuate - Philadelphia--The Americans quick in pursuit--The battle of - Monmouth--Marshall in the thick of the fight--His fairness to - Lee--Promoted to be captain--One of select light infantry - under Wayne, assigned to take Stony Point--The assault of - that stronghold--Marshall in the reserve command--One of the - picked men under "Light Horse Harry" Lee--The brilliant dash - upon Powles Hook--Term of enlistment of Marshall's regiment - expires and he is left without a command--Returns to Virginia - while waiting for new troops to be raised--Arnold invades - Virginia--Jefferson is Governor; he fails to prepare--Marshall - one of party to attack the British--Effect of Jefferson's - conduct on Marshall and the people--Comment of Virginia - women--Inquiry in Legislature as to Jefferson's conduct-- - Effect of Marshall's army experience on his thinking--The - roots of his great Nationalist opinions run back to Valley - Forge. - - V. MARRIAGE AND LAW BEGINNINGS 148 - - Marshall's romance--Visits his father who is commanding - at Yorktown--Mythical story of his father's capture at - Charleston--The Ambler family--Rebecca Burwell, Jefferson's - early love--Attractiveness of the Amblers--The "ball" at - Yorktown--High expectations of the young women concerning - Marshall--Their disappointment at his uncouth appearance and - rustic manners--He meets Mary Ambler--Mutual love at first - sight--Her sister's description of the ball and of Marshall-- - The courtship--Marshall goes to William and Mary College for - a few weeks--Description of the college--Marshall elected to - the Phi Beta Kappa Society--Attends the law lectures of - Mr. Wythe--The Ambler daughters pass though Williamsburg-- - The "ball" at "The Palace"--Eliza Ambler's account: - "Marshall was devoted to my sister"--Marshall leaves college - and follows Mary Ambler to Richmond--Secures license to - practice law--Resigns his command--Walks to Philadelphia to - be inoculated against smallpox--Tavern-keeper refuses to - take him in because of his appearance--Returns to Virginia - and resumes his courtship of Mary Ambler--Marshall's account - of his love-making--His sister-in-law's description of - Marshall's suit--Marshall's father goes to Kentucky and - returns--Marshall elected to the Legislature from Fauquier - County--He marries Mary Ambler: "but one solitary guinea - left"--Financial condition of Marshall's father at this - time--Lack of ready money everywhere--Marshall's account-- - He sets up housekeeping in Richmond--Description of Richmond - at that time--Brilliant bar of the town--"Marshall's slender - legal equipment"--The notes he made of Mr. Wythe's lectures-- - His Account Book--Examples of his earnings and expenditures - from 1783 until 1787--Life of the period--His jolly letter to - Monroe--His books--Elected City Recorder--Marshall's first - notable case: Hite vs. Fairfax--His first recorded argument-- - His wife becomes an invalid--His tender care of her--Mrs. - Carrington's account: Marshall "always and under every - circumstance, an enthusiast in love." - - VI. IN THE LEGISLATURE AND COUNCIL OF STATE 200 - - In the House of Delegates--The building where the Legislature - met--Costumes and manners of the members---Marshall's - popularity and his father's influence secure his election-- - He is appointed on important committees--His first vote-- - examples of legislative business--Poor quality of the - Legislature: Madison's disgust, Washington's opinion-- - Marshall's description and remarkable error--He is elected - member of Council of State--Pendleton criticizes the - elevation of Marshall--Work as member of Council--Resigns - from Council because of criticism of judges--Seeks and - secures reëlection to Legislature from Fauquier County-- - Inaccuracy of accepted account of these incidents--Marshall's - letter to Monroe stating the facts--Becomes champion of needy - Revolutionary soldiers--Leads fight for relief of Thomas - Paine--Examples of temper of the Legislature--Marshall favors - new Constitution for Virginia--The "Potowmack Company"--Bills - concerning courts--Reform of the High Court of Chancery-- - The religious controversy--State of religion in Virginia-- - Marshall's languid interest in the subject--Great question - of the British debts--Long-continued fight over payment or - confiscation--Marshall steadily votes and works for payment - of the debts--Effect of this contest on his economic and - political views--His letter to Monroe--Instability of - Legislature: a majority of thirty-three changed in two weeks - to an adverse majority of forty-nine--No National Government-- - Resolution against allowing Congress to lay any tax whatever: - "May prove destructive of rights and liberties of the - people"--The debts of the Confederation--Madison's extradition - bill--Contempt of the pioneers for treaties--Settlers' unjust - and brutal treatment of the Indians--Struggle over Madison's - bill--Patrick Henry saves it--Marshall supports it--Henry's - bill for amalgamation of Indians and whites--Marshall regrets - its defeat--Anti-National sentiment of the people--Steady - change in Marshall's ideas--Mercantile and financial interests - secure the Constitution--Shall Virginia call a Convention to - ratify it?--Marshall harmonizes differences and Convention is - called--He is in the first clash over Nationalism. - - VII. LIFE OF THE PEOPLE: COMMUNITY ISOLATION 250 - - The state of the country--A résumé of conditions--Revolutionary - leaders begin to doubt the people--Causes of this doubt-- - Isolation of communities--Highways and roads--Difficulty and - danger of travel--The road from Philadelphia to Boston: between - Boston and New York--Roads in interior of New England, New York, - Philadelphia, and New Jersey--Jefferson's account of roads from - Richmond to New York--Traveler lost in the "very thick woods" on - way from Alexandria to Mount Vernon to visit Washington--Travel - and transportation in Virginia--Ruinous effect on commerce-- - Chastellux lost on journey to Monticello to visit Jefferson-- - Talleyrand's description of country--Slowness of mails--Three - weeks or a month and sometimes two months required between - Virginia and New York--Mail several months in reaching interior - towns--News that Massachusetts had ratified the Constitution - eight days in reaching New York--Ocean mail service--letters - opened by postmasters or carriers--Scarcity of newspapers-- - Their untrustworthiness--Their violent abuse of public men-- - Franklin's denunciation of the press: he advises "the liberty - of the cudgel" to restrain "the liberty of the press"-- - Jefferson's disgust--The country newspaper: Freneau's "The - Country Printer"--The scantiness of education--Teachers and - schools--The backwoodsmen--The source of abnormal American - individualism--The successive waves of settlers--Their - ignorance, improvidence, and lack of social ideals--Habits and - characteristics of Virginians--Jefferson's harsh description - of them--Food of the people--Their houses--Continuous drinking - of brandy, rum, and whiskey--This common to whole country-- - Lack of community consciousness--Abhorrence of any National - Government. - - VIII. POPULAR ANTAGONISM TO GOVERNMENT 288 - - Thomas Paine's "Common Sense"--Its tremendous influence: - "Government, even in its best state, is but a necessary - evil"--Popular antagonism to the very idea of government-- - Impossibility of correcting falsehoods told to the people-- - Popular credulity--The local demagogue--North Carolina - preacher's idea of the Constitution--Grotesque campaign story - about Washington and Adams--Persistence of political canard - against Levin Powell--Amazing statements about the Society of - the Cincinnati: Ædanus Burke's pamphlet; Mirabeau's pamphlet; - Jefferson's denunciation--Marshall and his father members of - the Cincinnati--Effect upon him of the extravagant abuse of - this patriotic order--Popular desire for general division of - property and repudiation of debts--Madison's bitter comment-- - Jay on popular greed and "impatience of government"--Paper - money--Popular idea of money--Shays's Rebellion--Marshall's - analysis of its objects--Knox's report of it--Madison comes - to the conclusion that "the bulk of mankind" are incapable - of dealing with weighty subjects--Washington in despair--He - declares mankind unfit for their own government--Marshall - also fears that "man is incapable of governing himself"-- - Jefferson in Paris--Effect on his mind of conditions in - France--His description of the French people--Jefferson - applauds Shays's Rebellion: "The tree of liberty must be - refreshed by the blood of patriots and tyrants"--Influence - of French philosophy on Jefferson--The impotence of Congress - under the Confederation--Dishonorable conduct of the States-- - Leading men ascribe evil conditions to the people themselves-- - Views of Washington, Jay, and Madison--State Sovereignty the - shield of turmoil and baseness--Efforts of commercial and - financial interests produce the Constitution--Madison wants - a National Government with power of veto on all State laws - "whatsoever"--Jefferson thinks the Articles of Confederation - "a wonderfully perfect instrument"--He opposes a "strong - government"--Is apprehensive of the Constitution--Thinks - destruction of credit a good thing--Wishes America "to stand - with respect to Europe precisely on the footing of China"-- - The line of cleavage regarding the Constitution--Marshall for - the Constitution. - - IX. THE STRUGGLE FOR RATIFICATION 319 - - The historic Convention of 1788 assembles--Richmond at that - time--General ignorance of the Constitution--Even most members - of the Convention poorly informed--Vague popular idea of - Constitution as something foreign, powerful, and forbidding-- - People in Virginia strongly opposed to it--The Virginia debate - to be the greatest ever held over the Constitution--The - revolutionary character of the Constitution: would not have - been framed if the people had known of the purposes of the - Federal Convention at Philadelphia: "A child of fortune"-- - Ratification hurried--Pennsylvania Convention: hastily called, - physical violence, small number of people vote at election of - members to Pennsylvania Convention--People's ignorance of the - Constitution--Charges of the opposition--"The humble address - of the low born"--Debate in Pennsylvania Convention--Able - "Address of Minority"--Nationalism of the Constitution the - principal objection--Letters of "Centinel": the Constitution - "a spurious brat"--Attack on Robert Morris--Constitutionalist - replies: "Sowers of sedition"--Madison alarmed--The struggle - in Massachusetts--Conciliatory tactics of Constitutionalists-- - Upper classes for Constitution--Common people generally - opposed--Many towns refuse to send delegates to the - Convention--Contemporary descriptions of the elections-- - High ability and character of Constitutionalist members-- - Self-confessed ignorance and incapacity of opposition: Madison - writes that there is "Scarcely a man of respectability among - them"--Their pathetic fight against the Constitution--Examples - of their arguments--The bargain with Hancock secures enough - votes to ratify--The slender majority: one hundred and - sixty-eight vote against ratification--Methods of - Constitutionalists after ratification--Widgery's amusing - account: hogsheads of rum--Gerry's lament--Bribery charged-- - New Hampshire almost rejects Constitution--Convention adjourned - to prevent defeat--"Little information among the people," but - most "men of property and abilities" for Constitution-- - Constitution receives no deliberate consideration until debated - in the Virginia Convention--Notable ability of the leaders of - both sides in the Virginia contest. - - X. IN THE GREAT CONVENTION 357 - - Virginia the deciding State--Anxiety of Constitutionalists - in other States--Hamilton writes Madison: "No hope unless - Virginia ratifies"--Economic and political importance of - Virginia--Extreme effort of both sides to elect members to the - Convention--Preëlection methods of the Constitutionalists-- - They capture Randolph--Marshall elected from opposition - constituency--Preëlection methods of Anti-Constitutionalists-- - The Convention meets--Neither side sure of a majority-- - Perfect discipline and astute Convention tactics of the - Constitutionalists--They secure the two powerful offices - of the Convention--The opposition have no plan of action-- - Description of George Mason--His grave error in parliamentary - tactics--Constitutionalists take advantage of it: the - Constitution to be debated clause by clause--Analysis of the - opposing forces: an economic class struggle, Nationalism - against provincialism--Henry tries to remedy Mason's mistake-- - Pendleton speaks and the debate begins--Nicholas speaks--His - character and personal appearance--Patrick Henry secures the - floor--Description of Henry--He attacks the Constitution: - why "_we the people_ instead of _we_ the States"? Randolph - replies--His manner and appearance--His support of the - Constitution surprises the opposition--His speech--His - about-face saves the Constitution--The Clinton letter: if - Randolph discloses it the Anti-Constitutionalists will win-- - He keeps it from knowledge of the Convention--Decisive - importance of Randolph's action--His change ascribed to - improper motives--Mason answers Randolph and again makes - tactical error--Madison fails to speak--Description of Edmund - Pendleton--He addresses the Convention: "the war is between - government and licentiousness"--"Light Horse Harry" Lee--The - ermine and the sword--Henry secures the floor--His great - speech: the Constitution "a revolution as radical as that - which separated us from Great Britain"--The proposed National - Government something foreign and monstrous--"This government - is not a Virginian but an American government"--Marshall - studies the arguments and methods of the debaters--Randolph - answers Henry: "I am a child of the Revolution"--His error - concerning Josiah Philips--His speech ineffective--Description - of James Madison--He makes the first of his powerful - expositions of the Constitution, but has little or no effect - on the votes of the members--Speech of youthful Francis - Corbin--Randolph's futile effort--Madison makes the second - of his masterful speeches--Henry replies--His wonderful art-- - He attacks Randolph for his apostasy--He closes the first - week's debate with the Convention under his spell. - - XI. THE SUPREME DEBATE 401 - - Political managers from other States appear--Gouverneur - Morris and Robert Morris for the Constitutionalists and - Eleazer Oswald for the opposition--Morris's letter: - "depredations on my purse"--Grayson's letter: "our affairs - suspended by a thread"--Opening second week of the debate-- - The New Academy crowded--Henry resumes his speech--Appeals - to the Kentucky members, denounces secrecy of Federal - Convention, attacks Nationalism--Lee criticizes lobbying - "out of doors" and rebukes Henry--Randolph attacks Henry: - "If our friendship must fall, _let it fall like Lucifer, - never to rise again_"--Randolph challenges Henry: a duel - narrowly averted--Personal appearance of James Monroe-- - He speaks for the Revolutionary soldiers against the - Constitution and makes no impression--Marshall put forward - by the Constitutionalists--Description of him: badly dressed, - poetic-looking, "habits convivial almost to excess"-- - Best-liked man in the Convention; considered an orator-- - Marshall's speech: Constitutionalists the "firm friends of - liberty"; "we, sir, idolize democracy"; only a National - Government can promote the general welfare--Marshall's - argument his first recorded expression on the Constitution-- - Most of speech on necessity of providing against war and - inspired by his military experience--Description of Benjamin - Harrison--Mason attacks power of National taxation and sneers - at the "well-born"--He denounces Randolph--Lee answers with - a show of anger--William Grayson secures the floor--His - character, attainments, and appearance--His learned and - witty speech: "We are too young to know what we are good - for"--Pendleton answers: "government necessary to protect - liberty"--Madison makes his fourth great argument--Henry - replies: "the tyranny of Philadelphia [National Government] - may be like the tyranny of George III, a horrid, wretched, - dreadful picture"; Henry's vision of the West--Tremendous - effect on the Convention--Letter of Gouverneur Morris to - Hamilton describing the Convention--Madison's report to - Hamilton and to Washington: "the business is in the most - ticklish state that can be imagined"--Marshall speaks again-- - Military speech: "_United we are strong, divided we fall_"-- - Grayson answers Marshall--Mason and Henry refer to "vast - speculations": "we may be taxed for centuries to give - advantage to rapacious speculators"--Grayson's letter to - Dane--The advantage with the Anti-Constitutionalists at the - end of the second week. - - XII. THE STRATEGY OF VICTORY 444 - - The climax of the fight--The Judiciary the weakest point for - the Constitutionalists--Reasons for this--Especially careful - plans of the Constitutionalists for this part of the debate-- - Pendleton expounds the Judiciary clause--Mason attacks it-- - His charge as to secret purpose of many Constitutionalists-- - His extreme courtesy causes him again to make a tactical - error--He refers to the Fairfax grant--A clever appeal to - members from the Northern Neck--Madison's distinguished - address--Henry answers Madison--His thrilling speech: "Old - as I am, it is probable I may yet have the appellation of - _rebel_. As to this government [the Constitution] I despise - and abhor it"--Marshall takes the floor--Selected by the - Constitutionalists to make the principal argument for the - Judiciary clause--His speech prepared--The National Judiciary - "will benefit collective Society"; National Courts will be - as fair as State Courts; independence of judges necessary; - if Congress should pass an unconstitutional law the National - Courts "_would declare it void_"; they alone the only - "protection from an infringement of the Constitution"; - State courts "crowded with suits which the life of man will - not see determined"; National Courts needed to relieve this - congestion; under the Constitution, States cannot be sued - in National Courts; the Constitution does not exclude trial - by jury: "Does the word _court_ only mean the judges?"; - comparison with the Judiciary establishment of Virginia; - reply to Mason's argument on the Fairfax title; "what - security have you for justice? The independence of your - Judiciary!"--Marshall's speech unconnected and discursive, - but the Constitutionalists rest their case upon it--Madison's - report to Hamilton: "If we can weather the storm against the - Judiciary I shall hold the danger to be pretty well over"-- - Anti-Constitutionalists try to prolong debate until meeting - of Legislature which is strongly against the Constitution-- - Secession threatened--Madison's letter to Hamilton--Contest - so close that "ordinary casualties may vary the result"-- - Henry answers Marshall--His compliment to the young lawyer-- - His reference to the Indians arouses Colonel Stephen who - harshly assails Henry--Nicholas insults Henry, who demands - an explanation--Debate draws to a close--Mason intimates - forcible resistance to the Constitution--Lee rebukes him-- - The Constitutionalists forestall Henry and offer amendments-- - Henry's last speech: "Nine-tenths of the people" against - the Constitution; Henry's vision of the future; a sudden - and terrific storm aids his dramatic climax; members and - spectators in awe--The Legislature convenes--Quick, resolute - action of the Constitutionalists--Henry admits defeat--The - Virginia amendments--Absurdity of some of them--Necessary - to secure ratification--Marshall on the committee to report - amendments--Constitutionalists win by a majority of only - ten--Of these, two vote against their instructions and eight - vote against the well-known desires of their constituents-- - The Clinton letter at last disclosed--Mason's wrath--Henry - prevents Anti-Constitutionalists from talking measures to - resist the new National Government--Washington's account: - "Impossible for anybody not on the spot to conceive what the - delicacy and danger of our situation have been." - - APPENDIX 481 - I. WILL OF THOMAS MARSHALL, "CARPENTER" 483 - II. WILL OF JOHN MARSHALL "OF THE FOREST" 485 - III. DEED OF WILLIAM MARSHALL TO JOHN MARSHALL "OF THE FOREST" 487 - IV. MEMORIAL OF THOMAS MARSHALL FOR MILITARYE MOLUMENTS 489 - - WORKS CITED IN THIS VOLUME 491 - - - - -ILLUSTRATIONS - - - JOHN MARSHALL AT 43 _Colored Frontispiece_ - - From a miniature painted on ivory by an unknown artist. It was - executed in Paris in 1797-98, when Marshall was there on the X. Y. - Z. Mission. It is now in the possession of Miss Emily Harvie, of - Richmond, Virginia. It is the only portrait in existence of - Marshall at this period of his life and faithfully portrays him as - he was at the time of his intellectual duel with Talleyrand. - - COLONEL WILLIAM RANDOLPH 10 - - From a copy in the possession of Mr. Douglas H. Thomas, of - Baltimore, after the original portrait in the possession of Mr. - Edward C. Mayo, of Richmond. The painter of the original is - unknown. It was painted about 1673 and has passed down through - successive generations of the family. Mr. Thomas's copy is a - faithful one, and has been used for reproduction here because the - original is not sufficiently clear and distinct for the purpose. - - MARY ISHAM RANDOLPH, WIFE OF COLONEL WILLIAM RANDOLPH 10 - - From a copy in the possession of Mr. Douglas H. Thomas, of - Baltimore, after the original in the possession of Miss Anne - Mortimer Minor. The original portrait was painted about 1673 by an - unknown artist. It is incapable of satisfactory reproduction. - - COLONEL THOMAS MARSHALL, THE FATHER OF JOHN MARSHALL 14 - - From a portrait in the possession of Charles Edward Marshall, of - Glen Mary, Kentucky. This is the only portrait or likeness of any - kind in existence of John Marshall's father. It was painted at - some time between 1790 and 1800 and was inherited by Charles - Edward Marshall from his parents, Charles Edward and Judith - Langhorne Marshall. The name of the painter of this unusual - portrait is not known. - - MARY RANDOLPH (KEITH) MARSHALL, WIFE OF THOMAS MARSHALL AND - MOTHER OF JOHN MARSHALL 18 - - From a portrait in the possession of Miss Sallie Marshall, of - Leeds, Virginia. The portrait was painted at some time between - 1790 and 1800, but the painter's name is unknown. The reproduction - is from a photograph furnished by Mr. Douglas H. Thomas. - - "THE HOLLOW" 36 - - The Blue Ridge home of the Marshall family where John Marshall - lived from early childhood to his eighteenth year. The house is - situated on a farm at Markham, Va. From a photograph. - - OAK HILL 56 - - From a water-color in the possession of Mr. Thomas Marshall Smith, - of Baltimore. The small house at the rear of the right of the main - building was the original dwelling, built by John Marshall's - father in 1773. The Marshall family lived here until after the - Revolution. The large building was added nearly forty years - afterward by Thomas Marshall, son of the Chief Justice. The name - of the painter is unknown. - - OAK HILL 64 - - This is the original house, built in 1773 and carefully kept in - repair. The brick pavement is a modern improvement. From a - photograph. - - FACSIMILE OF THE LAST PAGE OF A LETTER FROM JOHN MARSHALL TO - HIS WIFE, DESCRIBING THEIR COURTSHIP 152 - - This letter was written at Washington, February 23, 1824, - forty-one years after their marriage. No part of it has ever - before been published. - - MARY AMBLER MARSHALL, THE WIFE OF JOHN MARSHALL 168 - - A crayon drawing from the original painting now in the possession - of Mrs. Carroll, a granddaughter of John Marshall, living at Leeds - Manor, Va. This is the only painting of Mrs. Marshall in existence - and the name of the artist is unknown. - - RICHMOND IN 1800 184 - - From a painting in the rooms of the Virginia Historical Society. - - FACSIMILE OF A PAGE OF MARSHALL'S ACCOUNT BOOK, MAY, 1787 198 - - In this book Marshall kept his accounts of receipts and expenses - for twelve years after his marriage in 1783. In the first part of - it he also recorded his notes of law lectures during his brief - attendance at William and Mary College. The original volume is - owned by Mrs. John K. Mason, of Richmond. - - FACSIMILES OF SIGNATURES OF JOHN MARSHALL AT TWENTY-NINE AND - FORTY-TWO AND OF THOMAS MARSHALL 210 - - These signatures are remarkable as showing the extreme - dissimilarity between the signature of Marshall as a member of the - Council of State before he was thirty and his signature in his - mature manhood, and also as showing the basic similarity between - the signatures of Marshall and his father. The signature of - Marshall as a member of the Council of State in 1784 is from the - original minutes of the Council in the Archives of the Virginia - State Library. His 1797 signature is from a letter to his wife, - the original of which is in the possession of Miss Emily Harvie, - of Richmond. The signature of Thomas Marshall is from the original - roster of the officers of his regiment in the Manuscripts Division - of the Library of Congress. - - FACSIMILE OF THE FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES - MONROE, APRIL 17, 1784 212 - - From the original in the Manuscript Division of the New York - Public Library. This letter has never before been published. It is - extremely important in that it corrects extravagant errors - concerning Marshall's resignation from the Council of State and - his reëlection to the legislature. - - JOHN MARSHALL 294 - - From a profile drawing by Charles Balthazar Julien Fèvre de Saint - Mémin, in the possession of Miss Emily Harvey of Richmond, Va., a - granddaughter of John Marshall. Autograph from manuscript - collection in the Library of the Boston Athenæum. - - GEORGE WYTHE 368 - - From an engraving by J. B. Longacre after a portrait by an unknown - painter in the possession of the Virginia State Library. George - Wythe was Professor of Law at William and Mary College during - Marshall's brief attendance. - - JOHN MARSHALL 420 - - From a painting by J. B. Martin in the Robe Room of the Supreme - Court of the United States, Washington, D.C. - - PATRICK HENRY 470 - - From a copy (in the possession of the Westmoreland Club, of - Richmond) of the portrait by Thomas Sully. Sully, who never saw - Patrick Henry himself, painted the portrait from a miniature on - ivory done by a French artist in Richmond about 1792. John - Marshall, under date of December 30, 1816, attested its excellence - as follows: "I have been shown a painting of the late Mr. Henry, - painted by Mr. Sully, now in possession of Mr. Webster, which I - think a good likeness." - - - - -LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED - - _All references here are to the List of Authorities at the end of - this volume._ - - -Beard: _Econ. I. C._ _See_ Beard, Charles A. Economic Interpretation of -the Constitution of the United States. - -Beard: _Econ. O. J. D._ _See_ Beard, Charles A. Economic Origins of -Jeffersonian Democracy. - -Bruce: _Econ._ _See_ Bruce, Philip Alexander. Economic History of -Virginia in the Seventeeth Century. - -Bruce: _Inst._ _See_ Bruce, Philip Alexander. Institutional History of -Virginia in the Seventeeth Century. - -_Cor. Rev._: Sparks. _See_ Sparks, Jared. Correspondence of the -Revolution. - -Eckenrode: _R. V._ _See_ Eckenrode, H. J. The Revolution in Virginia. - -Eckenrode: _S. of C. and S._ _See_ Eckenrode, H. J. Separation of Church -and State in Virginia. - -Jefferson's _Writings_: Washington. _See_ Jefferson, Thomas. Writings. -Edited by H. A. Washington. - -Monroe's _Writings_: Hamilton. _See_ Monroe, James. Writings. Edited by -Stanislaus Murray Hamilton. - -_Old Family Letters._ _See_ Adams, John. Old Family Letters. Edited by -Alexander Biddle. - -Wertenbaker: _P. and P._ _See_ Wertenbaker, Thomas J. Patrician and -Plebeian in Virginia; or the Origin and Development of the Social -Classes of the Old Dominion. - -Wertenbaker: _V. U. S._ _See_ Wertenbaker, Thomas J. Virginia Under the -Stuarts, 1607-1688. - -_Works_: Adams. _See_ Adams, John. Works. Edited by Charles Francis -Adams. - -_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited -by Paul Leicester Ford. - -_Works_: Hamilton. _See_ Hamilton, Alexander. Works. Edited by John C. -Hamilton. - -_Works_: Lodge. _See_ Hamilton, Alexander. Works. Federal Edition. -Edited by Henry Cabot Lodge. - -_Writings_: Conway. _See_ Paine, Thomas. Writings. Edited by Moncure -Daniel Conway. - -_Writings_: Ford. _See_ Washington, George. Writings. Edited by -Worthington Chauncey Ford. - -_Writings_: Hunt. _See_ Madison, James. Writings. Edited by Gaillard -Hunt. - -_Writings_: Smyth. _See_ Franklin, Benjamin. Writings. Edited by Albert -Henry Smyth. - -_Writings_: Sparks. _See_ Washington, George. Writings. Edited by Jared -Sparks. - - - - -THE LIFE OF JOHN MARSHALL - - - - -THE LIFE OF JOHN MARSHALL - - - - -CHAPTER I - -ANCESTRY AND ENVIRONMENT - - Often do the spirits of great events stride on before the events - and in to-day already walks to-morrow. (Schiller.) - - I was born an American; I will live an American; I shall die an - American. (Webster.) - - -"The British are beaten! The British are beaten!" From cabin to cabin, -from settlement to settlement crept, through the slow distances, this -report of terror. The astounding news that Braddock was defeated finally -reached the big plantations on the tidewater, and then spread dismay and -astonishment throughout the colonies. - -The painted warriors and the uniformed soldiers of the French-Indian -alliance had been growing bolder and bolder, their ravages ever more -daring and bloody.[1] Already the fear of them had checked the thin wave -of pioneer advance; and it seemed to the settlers that their hereditary -enemies from across the water might succeed in confining British -dominion in America to the narrow strip between the ocean and the -mountains. For the royal colonial authorities had not been able to cope -with their foes.[2] - -But there was always the reserve power of Great Britain to defend her -possessions. If only the home Government would send an army of British -veterans, the colonists felt that, as a matter of course, the French and -Indians would be routed, the immigrants made safe, and the way cleared -for their ever-swelling thousands to take up and people the lands beyond -the Alleghanies. - -So when at last, in 1755, the redoubtable Braddock and his red-coated -regiments landed in Virginia, they were hailed as deliverers. There -would be an end, everybody said, to the reign of terror which the -atrocities of the French and Indians had created all along the border. -For were not the British grenadiers invincible? Was not Edward Braddock -an experienced commander, whose bravery was the toast of his fellow -officers?[3] So the colonists had been told, and so they believed. - -They forgave the rudeness of their British champions; and Braddock -marched away into the wilderness carrying with him the unquestioning -confidence of the people.[4] It was hardly thought necessary for any -Virginia fighting men to accompany him; and that haughty, passionate -young Virginia soldier, George Washington (then only twenty-three years -of age, but already the chief military figure of the Old Dominion), and -his Virginia rangers were invited to accompany Braddock more because -they knew the country better than for any real aid in battle that was -expected of them. "I have been importuned," testifies Washington, "to -make this campaign by General Braddock, ... conceiving ... that the ... -knowledge I have ... of the country, Indians, &c. ... might be useful to -him."[5] - -So through the ancient and unbroken forests Braddock made his slow and -painful way.[6] Weeks passed; then months.[7] But there was no -impatience, because everybody knew what would happen when his scarlet -columns should finally meet and throw themselves upon the enemy. Yet -this meeting, when it came, proved to be one of the lesser tragedies of -history, and had a deep and fateful effect upon American public opinion -and upon the life and future of the American people.[8] - -Time has not dulled the vivid picture of that disaster. The golden -sunshine of that July day; the pleasant murmur of the waters of the -Monongahela; the silent and somber forests; the steady tramp, tramp of -the British to the inspiriting music of their regimental bands playing -the martial airs of England; the bright uniforms of the advancing -columns giving to the background of stream and forest a touch of -splendor; and then the ambush and surprise; the war-whoops of savage -foes that could not be seen; the hail of invisible death, no pellet of -which went astray; the pathetic volleys which the doomed British troops -fired at hidden antagonists; the panic; the rout; the pursuit; the -slaughter; the crushing, humiliating defeat![9] - -Most of the British officers were killed or wounded as they vainly tried -to halt the stampede.[10] Braddock himself received a mortal hurt.[11] -Raging with battle lust, furious at what he felt was the stupidity and -cowardice of the British regulars,[12] the youthful Washington rode -among the fear-frenzied Englishmen, striving to save the day. Two horses -were shot under him. Four bullets rent his uniform.[13] But, crazed with -fright, the Royal soldiers were beyond human control. - -Only the Virginia rangers kept their heads and their courage. Obeying -the shouted orders of their young commander, they threw themselves -between the terror-stricken British and the savage victors; and, -fighting behind trees and rocks, were an ever-moving rampart of fire -that saved the flying remnants of the English troops. But for Washington -and his rangers, Braddock's whole force would have been annihilated.[14] -Colonel Dunbar and his fifteen hundred British regulars, who had been -left a short distance behind as a reserve, made off to Philadelphia as -fast as their panic-winged feet could carry them.[15] - -So everywhere went up the cry, "The British are beaten!" At first rumor -had it that the whole force was destroyed, and that Washington had been -killed in action.[16] But soon another word followed hard upon this -error--the word that the boyish Virginia captain and his rangers had -fought with coolness, skill, and courage; that they alone had prevented -the extinction of the British regulars; that they alone had come out of -the conflict with honor and glory. - -Thus it was that the American colonists suddenly came to think that they -themselves must be their own defenders. It was a revelation, all the -more impressive because it was so abrupt, unexpected, and dramatic, that -the red-coated professional soldiers were not the unconquerable warriors -the colonists had been told that they were.[17] From colonial "mansion" -to log cabin, from the provincial "capitals" to the mean and exposed -frontier settlements, Braddock's defeat sowed the seed of the idea that -Americans must depend upon themselves.[18] - -As Bacon's Rebellion at Jamestown, exactly one hundred years before -Independence was declared at Philadelphia, was the beginning of the -American Revolution in its first clear expression of popular rights,[19] -so Braddock's defeat was the inception of that same epoch in its lesson -of American military self-dependence.[20] Down to Concord and Lexington, -Great Bridge and Bunker Hill, the overthrow of the King's troops on the -Monongahela in 1755 was a theme of common talk among men, a household -legend on which American mothers brought up their children.[21] - -Close upon the heels of this epoch-making event, John Marshall came into -the world. He was born in a little log cabin in the southern part of -what now is Fauquier County, Virginia (then a part of Prince William), -on September 24, 1755,[22] eleven weeks after Braddock's defeat. The -Marshall cabin stood about a mile and a half from a cluster of a dozen -similar log structures built by a handful of German families whom -Governor Spotswood had brought over to work his mines. This little -settlement was known as Germantown, and was practically on the -frontier.[23] - -Thomas Marshall, the father of John Marshall, was a close friend of -Washington, whom he ardently admired. They were born in the same county, -and their acquaintance had begun, apparently, in their boyhood.[24] -Also, as will presently appear, Thomas Marshall had for about three -years been the companion of Washington, when acting as his assistant in -surveying the western part of the Fairfax estate.[25] From that time -forward his attachment to Washington amounted to devotion.[26] - -Also, he was, like Washington, a fighting man.[27] It seems strange, -therefore, that he did not accompany his hero in the Braddock -expedition. There is, indeed, a legend that he did go part of the -way.[28] But this, like so many stories concerning him, is untrue.[29] -The careful roster, made by Washington of those under his command,[30] -does not contain the name of Thomas Marshall either as officer or -private. Because of their intimate association it is certain that -Washington would not have overlooked him if he had been a member of that -historic body of men. - -So, while the father of John Marshall was not with his friend and leader -at Braddock's defeat, no man watched that expedition with more care, -awaited its outcome with keener anxiety, or was more affected by the -news, than Thomas Marshall. Beneath no rooftree in all the colonies, -except, perhaps, that of Washington's brother, could this capital event -have made a deeper impression than in the tiny log house in the forests -of Prince William County, where John Marshall, a few weeks afterwards, -first saw the light of day. - -Wars and rumors of wars, ever threatening danger, and stern, strong, -quiet preparation to meet whatever befell--these made up the moral and -intellectual atmosphere that surrounded the Marshall cabin before and -after the coming of Thomas and Mary Marshall's first son. The earliest -stories told this child of the frontier[31] must have been those of -daring and sacrifice and the prevailing that comes of them. - -Almost from the home-made cradle John Marshall was taught the idea of -American solidarity. Braddock's defeat, the most dramatic military event -before the Revolution,[32] was, as we have seen, the theme of fireside -talk; and from this grew, in time, the conviction that Americans, if -united,[33] could not only protect their homes from the savages and the -French, but defeat, if need be, the British themselves.[34] So thought -the Marshalls, father and mother; and so they taught their children, as -subsequent events show. - -It was a remarkable parentage that produced this child who in manhood -was to become the master-builder of American Nationality. Curiously -enough, it was exactly the same mingling of human elements that gave to -the country that great apostle of the rights of man, Thomas Jefferson. -Indeed, Jefferson's mother and Marshall's grandmother were first -cousins. The mother of Thomas Jefferson was Jane Randolph, daughter of -Isham Randolph of Turkey Island; and the mother of John Marshall was -Mary Randolph Keith, the daughter of Mary Isham Randolph, whose father -was Thomas Randolph of Tuckahoe, the brother of Jefferson's maternal -grandfather. - -Thus, Thomas Jefferson was the great-grandson and John Marshall the -great-great-grandson of William Randolph and Mary Isham. Perhaps no -other couple in American history is so remarkable for the number of -distinguished descendants. Not only were they the ancestors of Thomas -Jefferson and John Marshall, but also of "Light Horse Harry" Lee, -of Revolutionary fame, Edmund Randolph, Washington's first -Attorney-General, John Randolph of Roanoke, George Randolph, Secretary -of War under the Confederate Government, and General Robert E. Lee, the -great Southern military leader of the Civil War.[35] - -The Virginia Randolphs were one of the families of that proud colony who -were of undoubted gentle descent, their line running clear and unbroken -at least as far back as 1550. The Ishams were a somewhat older family, -their lineage being well established to 1424. While knighthood was -conferred upon one ancestor of Mary Isham, the Randolph and Isham -families were of the same social stratum, both being of the English -gentry.[36] The Virginia Randolphs were brilliant in mind, physically -courageous, commanding in character, generally handsome in person, yet -often as erratic as they were gifted. - -[Illustration: COLONEL WILLIAM RANDOLPH] - -[Illustration: MARY ISHAM RANDOLPH] - -When the gentle Randolph-Isham blood mingled with the sturdier currents -of the common people, the result was a human product stronger, steadier, -and abler than either. So, when Jane Randolph became the wife of Peter -Jefferson, a man from the grass roots, the result was Thomas Jefferson. -The union of a daughter of Mary Randolph with Thomas Marshall, a man of -the soil and forests, produced John Marshall.[37] - -Physically and mentally, Peter Jefferson and Thomas Marshall were much -alike. Both were powerful men of great stature. Both were endowed with -rare intellectuality.[38] Both were hard-working, provident, and -fearless. Even their occupations were the same: both were land -surveyors. The chief difference between them was that, whereas Peter -Jefferson appears to have been a hearty and convivial person,[39] -Thomas Marshall seems to have been self-contained though adventurous, -and of rather austere habits. Each became the leading man of his -county[40] and both were chosen members of the House of Burgesses.[41] - -On the paternal side, it is impossible to trace the origin of either -Peter Jefferson[42] or Thomas Marshall farther back than their -respective great-grandfathers, without floundering, unavailingly, in -genealogical quicksands. - -Thomas Marshall was the son of a very small planter in Westmoreland -County, Virginia. October 23, 1727, three years before Thomas was born, -his father, John Marshall "of the forest," acquired by deed, from -William Marshall of King and Queen County, two hundred acres of poor, -low, marshy land located on Appomattox Creek.[43] Little as the value of -land in Virginia then was, and continued to be for three quarters of a -century afterwards,[44] this particular tract seems to have been of an -especially inferior quality. The deed states that it is a part of twelve -hundred acres which had been granted to "Jno. Washington & Thos. Pope, -gents ... & by them lost for want of seating." - -Here John Marshall "of the forest"[45] lived until his death in 1752, -and here on April 2, 1730, Thomas Marshall was born. During the quarter -of a century that this John Marshall remained on his little farm, he had -become possessed of several slaves, mostly, perhaps, by natural -increase. By his will he bequeaths to his ten children and to his wife -six negro men and women, ten negro boys and girls, and two negro -children. In addition to "one negro fellow named Joe and one negro woman -named Cate" he gives to his wife "one Gray mair named beauty and side -saddle also six hogs also I leave her the use of my land During her -widowhood, and afterwards to fall to my son Thomas Marshall and his -heirs forever."[46] One year later the widow, Elizabeth Marshall, deeded -half of this two hundred acres to her son Thomas Marshall.[47] - -Such was the environment of Thomas Marshall's birth, such the property, -family, and station in life of his father. Beyond these facts, nothing -positively is known of the ancestry of John Marshall on his father's -side. Marshall himself traces it no further back than his grandfather. -"My Father, Thomas Marshall, was the eldest son of John Marshall, who -intermarried with a Miss Markham and whose parents migrated from Wales, -and settled in the county of Westmoreland, in Virginia, where my Father -was born."[48] - -It is probable, however, that Marshall's paternal great-grandfather was -a carpenter of Westmoreland County. A Thomas Marshall, "carpenter," as -he describes himself in his will, died in that county in 1704. He -devised his land to his son William. A William Marshall of King and -Queen County deeded to John Marshall "of the forest," for five -shillings, the two hundred acres of land in Westmoreland County, as -above stated.[49] The fair inference is that this William was the elder -brother of John "of the forest" and that both were sons of Thomas the -"carpenter." - -[Illustration: THOMAS MARSHALL] - -Beyond his paternal grandfather or at furthest his great-grandfather, -therefore, the ancestry of John Marshall, on his father's side, is lost -in the fogs of uncertainty.[50] It is only positively known that his -grandfather was of the common people and of moderate means.[51] - -Concerning his paternal grandmother, nothing definitely is established -except that she was Elizabeth Markham, daughter of Lewis Markham, once -Sheriff of Westmoreland County.[52] - -John Marshall's lineage on his mother's side, however, is long, high, -and free from doubt, not only through the Randolphs and Ishams, as we -have seen, but through the Keiths. For his maternal grandfather was an -Episcopal clergyman, James Keith, of the historic Scottish family of -that name, who were hereditary Earls Marischal of Scotland. The Keiths -had been soldiers for generations, some of them winning great -renown.[53] One of them was James Keith, the Prussian field marshal and -ablest of the officers of Frederick the Great.[54] James Keith, a -younger son of this distinguished family, was destined for the -Church;[55] but the martial blood flowing in his veins asserted itself -and, in his youth, he also became a soldier, upholding with arms the -cause of the Pretender. When that rebellion was crushed, he fled to -Virginia, resumed his sacred calling, returned to England for orders, -came back to Virginia[56] and during his remaining years performed his -priestly duties with rare zeal and devotion.[57] The motto of the Keiths -of Scotland was "Veritas Vincit," and John Marshall adopted it. During -most of his life he wore an amethyst with the ancient Keith motto -engraved upon it.[58] - -When past middle life the Scottish parson married Mary Isham -Randolph,[59] granddaughter of William Randolph and Mary Isham. In 1754 -their daughter, Mary Randolph Keith, married Thomas Marshall and became -the mother of John Marshall. "My mother was named Mary Keith, she was -the daughter of a clergyman, of the name of Keith, who migrated from -Scotland and intermarried with a Miss Randolph of James River" is -Marshall's comment on his maternal ancestry.[60] - -Not only was John Marshall's mother uncommonly well born, but she was -more carefully educated than most Virginia women of that period.[61] Her -father received in Aberdeen the precise and methodical training of a -Scottish college;[62] and, as all parsons in the Virginia of that time -were teachers, it is certain that he carefully instructed his daughter. -He was a deeply religious man, especially in his latter years,--so much -so, indeed, that there was in him a touch of mysticism; and the two -marked qualities of his daughter, Mary, were deep piety and strong -intellectuality. She had, too, all the physical hardiness of her -Scottish ancestry, fortified by the active and useful labor which all -Virginia women of her class at that time performed. - -[Illustration: MARY RANDOLPH KEITH MARSHALL (Mrs. Thomas Marshall)] - -So Thomas Marshall and Mary Keith combined unusual qualities for the -founding of a family. Great strength of mind both had, and powerful -wills; and through the veins of both poured the blood of daring. Both -were studious-minded, too, and husband and wife alike were seized of a -passion for self-improvement as well as a determination to better their -circumstances. It appears that Thomas Marshall was by nature religiously -inclined;[63] and this made all the greater harmony between himself and -his wife. The physical basis of both husband and wife seems to have been -well-nigh perfect. - -Fifteen children were the result of this union, every one of whom lived -to maturity and almost all of whom rounded out a ripe old age. Every one -of them led an honorable and successful life. Nearly all strongly -impressed themselves upon the community in which they lived. - -It was a peculiar society of which this prolific and virile family -formed a part, and its surroundings were as strange as the society -itself. Nearly all of Virginia at that time was wilderness,[64] if we -look upon it with the eyes of to-day. The cultivated parts were given -over almost entirely to the raising of tobacco, which soon drew from the -soil its virgin strength; and the land thus exhausted usually was -abandoned to the forest, which again soon covered it. No use was made of -the commonest and most obvious fertilizing materials and methods; new -spaces were simply cleared.[65] Thus came a happy-go-lucky improvidence -of habits and character. - -This shiftlessness was encouraged by the vast extent of unused and -unoccupied domain. Land was so cheap that riches measured by that basis -of all wealth had to be counted in terms of thousands and tens of -thousands of acres.[66] Slavery was an even more powerful force making -for a kind of lofty disdain of physical toil among the white -people.[67] Black slaves were almost as numerous as white free men.[68] -On the great plantations the negro quarters assumed the proportions of -villages;[69] and the masters of these extensive holdings were by -example the arbiters of habits and manners to the whole social and -industrial life of the colony. While an occasional great planter was -methodical and industrious,[70] careful and systematic methods were -rare. Manual labor was, to most of these lords of circumstance, not only -unnecessary but degrading. To do no physical work that could be avoided -on the one hand, and on the other hand, to own as many slaves as -possible, was, generally, the ideal of members of the first estate.[71] -This spread to the classes below, until it became a common ambition of -white men throughout the Old Dominion. - -While contemporary travelers are unanimous upon this peculiar aspect of -social and economic conditions in old Virginia, the vivid picture drawn -by Thomas Jefferson is still more convincing. "The whole commerce -between master and slave," writes Jefferson, "is a perpetual exercise of -the most boisterous passions, the most unremitting despotism on the one -part, and degrading submissions on the other. Our children see this and -learn to imitate it.... Thus nursed, educated, and daily exercised in -tyranny ... the man must be a prodigy who can retain his manners and -morals undepraved.... With the morals of the people their industry also -is destroyed. For in a warm climate, no man will labour for himself who -can make another labour for him.... Of the proprietors of slaves a very -small proportion indeed are ever seen to labour."[72] - -Two years after he wrote his "Notes on Virginia" Jefferson emphasized -his estimate of Virginia society. "I have thought them [Virginians] as -you found them," he writes Chastellux, "aristocratical, pompous, -clannish, indolent, hospitable ... careless of their interests, ... -thoughtless in their expenses and in all their transactions of -business." He again ascribes many of these characteristics to "that -warmth of their climate which unnerves and unmans both body and -mind."[73] - -From this soil sprang a growth of habits as noxious as it was luxuriant. -Amusements to break the monotony of unemployed daily existence took the -form of horse-racing, cock-fighting, and gambling.[74] Drinking and all -attendant dissipations were universal and extreme;[75] this, however, -was the case in all the colonies.[76] Bishop Meade tells us that even -the clergy indulged in the prevailing customs to the neglect of their -sacred calling; and the church itself was all but abandoned in the -disrepute which the conduct of its ministers brought upon the house of -God.[77] - -Yet the higher classes of colonial Virginians were keen for the -education of their children, or at least of their male offspring.[78] -The sons of the wealthiest planters often were sent to England or -Scotland to be educated, and these, not infrequently, became graduates -of Oxford, Cambridge, and Edinburgh.[79] Others of this class were -instructed by private tutors.[80] Also a sort of scanty and fugitive -public instruction was given in rude cabins, generally located in -abandoned fields. These were called the Old Field Schools.[81] - -More than forty per cent of the men who made deeds or served on juries -could not sign their names, although they were of the land-owning and -better educated classes;[82] the literacy of the masses, especially that -of the women,[83] was, of course, much lower. - -An eager desire, among the "quality," for reading brought a considerable -number of books to the homes of those who could afford that luxury.[84] -A few libraries were of respectable size and two or three were very -large. Robert Carter had over fifteen hundred volumes,[85] many of which -were in Latin and Greek, and some in French.[86] William Byrd collected -at Westover more than four thousand books in half a dozen languages.[87] -But the Carter and Byrd libraries were, of course, exceptions. Byrd's -library was the greatest, not only in Virginia, but in all the colonies, -except that of John Adams, which was equally extensive and varied.[88] - -Doubtless the leisure and wealth of the gentry, created by the peculiar -economic conditions of the Old Dominion, sharpened this appetite for -literature and afforded to the wealthy time and material for the -gratification of it. The passion for reading and discussion persisted, -and became as notable a characteristic of Virginians as was their -dislike for physical labor, their excessive drinking, and their love of -strenuous sport and rough diversion. - -There were three social orders or strata, all contemporary observers -agree, into which Virginians were divided; but they merged into one -another so that the exact dividing line was not clear.[89] First, of -course, came the aristocracy of the immense plantations. While the -social and political dominance of this class was based on wealth, yet -some of its members were derived from the English gentry, with, perhaps, -an occasional one from a noble family in the mother country.[90] Many, -however, were English merchants or their sons.[91] It appears, also, -that the boldest and thriftiest of the early Virginia settlers, whom the -British Government exiled for political offenses, acquired extensive -possessions, became large slave-owners, and men of importance and -position. So did some who were indentured servants;[92] and, indeed, an -occasional transported convict rose to prominence.[93] - -But the genuine though small aristocratic element gave tone and color to -colonial Virginia society. All, except the "poor whites," looked to this -supreme group for ideals and for standards of manners and conduct. -"People of fortune ... are the pattern of all behaviour here," testifies -Fithian of New Jersey, tutor in the Carter household.[94] Also, it was, -of course, the natural ambition of wealthy planters and those who -expected to become such to imitate the life of the English higher -classes. This was much truer in Virginia than in any other colony; for -she had been more faithful to the Crown and to the royal ideal than had -her sisters. Thus it was that the Old Dominion developed a distinctively -aristocratic and chivalrous social atmosphere peculiar to herself,[95] -as Jefferson testifies. - -Next to the dominant class came the lesser planters. These corresponded -to the yeomanry of the mother country; and most of them were from the -English trading classes.[96] They owned little holdings of land from a -few hundred to a thousand and even two thousand acres; and each of these -inconsiderable landlords acquired a few slaves in proportion to his -limited estate. It is possible that a scanty number of this middle class -were as well born as the best born of the little nucleus of the genuine -aristocracy; these were the younger sons of great English houses to whom -the law of primogeniture denied equal opportunity in life with the elder -brother. So it came to pass that the upper reaches of the second estate -in the social and industrial Virginia of that time merged into the -highest class. - -At the bottom of the scale, of course, came the poverty-stricken whites. -In eastern Virginia this was the class known as the "poor whites"; and -it was more distinct than either of the two classes above it. These -"poor whites" lived in squalor, and without the aspirations or virtues -of the superior orders. They carried to the extreme the examples of -idleness given them by those in higher station, and coarsened their -vices to the point of brutality.[97] Near this social stratum, though -not a part of it, were classed the upland settlers, who were poor -people, but highly self-respecting and of sturdy stock. - -Into this structure of Virginia society Fate began to weave a new and -alien thread about the time that Thomas Marshall took his young bride to -the log cabin in the woods of Prince William County where their first -child was born. In the back country bordering the mountains appeared the -scattered huts of the pioneers. The strong character of this element of -Virginia's population is well known, and its coming profoundly -influenced for generations the political, social, industrial, and -military history of that section. They were jealous of their "rights," -impatient of restraint, wherever they felt it, and this was seldom. -Indeed, the solitariness of their lives, and the utter self-dependence -which this forced upon them, made them none too tolerant of law in any -form. - -These outpost settlers furnished most of that class so well known to our -history by the term "backwoodsmen," and yet so little understood. For -the heroism, the sacrifice, and the suffering of this "advance guard of -civilization" have been pictured by laudatory writers to the exclusion -of its other and less admirable qualities. Yet it was these latter -characteristics that played so important a part in that critical period -of our history between the surrender of the British at Yorktown and the -adoption of the Constitution, and in that still more fateful time when -the success of the great experiment of making out of an inchoate -democracy a strong, orderly, independent, and self-respecting nation was -in the balance. - -These American backwoodsmen, as described by contemporary writers who -studied them personally, pushed beyond the inhabited districts to get -land and make homes more easily. This was their underlying purpose; but -a fierce individualism, impatient even of those light and vague social -restraints which the existence of near-by neighbors creates, was a -sharper spur.[98] Through both of these motives, too, ran the spirit of -mingled lawlessness and adventure. The physical surroundings of the -backwoodsman nourished the non-social elements of his character. The log -cabin built, the surrounding patch of clearing made, the seed planted -for a crop of cereals only large enough to supply the household -needs--these almost ended the backwoodsman's agricultural activities and -the habits of regular industry which farming requires. - -While his meager crops were coming on, the backwoodsman must supply his -family with food from the stream and forest. The Indians had not yet -retreated so far, nor were their atrocities so remote, that fear of -them had ceased;[99] and the eye of the backwoodsman was ever keen for a -savage human foe as well as for wild animals. Thus he became a man of -the rifle,[100] a creature of the forests, a dweller amid great -silences, self-reliant, suspicious, non-social, and almost as savage as -his surroundings.[101] - -But among them sometimes appeared families which sternly held to high -purposes, orderly habits, and methodical industry;[102] and which clung -to moral and religious ideals and practices with greater tenacity than -ever, because of the very difficulties of their situation. These chosen -families naturally became the backbone of the frontier; and from them -came the strong men of the advanced settlements. - -Such a figure among the backwoodsmen was Thomas Marshall. Himself a -product of the settlements on the tidewater, he yet was the -personification of that spirit of American advance and enterprise which -led this son of the Potomac lowlands ever and ever westward until he -ended his days in the heart of Kentucky hundreds of miles through the -savage wilderness from the spot where, as a young man, he built his -first cabin home. - -This, then, was the strange mingling of human elements that made up -Virginia society during the middle decades of the eighteenth century--a -society peculiar to the Old Dominion and unlike that of any other place -or time. For the most part, it was idle and dissipated, yet also -hospitable and spirited, and, among the upper classes, keenly -intelligent and generously educated. When we read of the heavy drinking -of whiskey, brandy, rum, and heady wine; of the general indolence, -broken chiefly by fox-hunting and horse-racing, among the quality; of -the coarser sport of cock-fighting shared in common by landed gentry and -those of baser condition, and of the eagerness for physical encounter -which seems to have pervaded the whole white population,[103] we wonder -at the greatness of mind and soul which grew from such a social soil. - -Yet out of it sprang a group of men who for ability, character, spirit, -and purpose, are not outshone and have no precise counterpart in any -other company of illustrious characters appearing in like space of time -and similar extent of territory. At almost the same point of time, -historically speaking,--within thirty years, to be exact,--and on the -same spot, geographically speaking,--within a radius of a hundred -miles,--George Mason, James Madison, Patrick Henry, Thomas Jefferson, -John Marshall, and George Washington were born. The life stories of -these men largely make up the history of their country while they lived; -and it was chiefly their words and works, their thought and purposes, -that gave form and direction, on American soil, to those political and -social forces which are still working out the destiny of the American -people. - - -FOOTNOTES: - -[1] For instance, the Indians massacred nine families in Frederick -County, just over the Blue Ridge from Fauquier, in June, 1755. -(_Pennsylvania Journal and Weekly Advertiser_, July 24, 1755.) - -[2] Marshall, i, 12-13; Campbell, 469-71. "The Colonial contingents were -not nearly sufficient either in quantity or quality." (Wood, 40.) - -[3] Braddock had won promotion solely by gallantry in the famous -Coldstream Guards, the model and pride of the British army, at a time -when a lieutenant-colonelcy in that crack regiment sold for £5000 -sterling. (Lowdermilk, 97.) - -[4] "The British troops had been looked upon as invincible, and -preparations had been made in Philadelphia for the celebration of -Braddock's anticipated victory." (_Ib._, 186.) - -[5] Washington to Robinson, April 20, 1755; _Writings_: Ford, i, 147. - -[6] The "wild desert country lying between fort Cumberland and fort -Frederick [now the cities of Cumberland and Frederick in Maryland], the -most common track of the Indians, in making their incursions into -Virginia." (Address in the Maryland House of Delegates, 1757, as quoted -by Lowdermilk, 229-30.) Cumberland was "about 56 miles beyond our -[Maryland] settlements." (_Ib._) Cumberland "is far remote from any of -our inhabitants." (Washington to Dinwiddie, Sept. 23, 1756; _Writings_: -Ford, i, 346.) "Will's Creek was on the very outskirts of civilization. -The country beyond was an unbroken and almost pathless wilderness." -(Lowdermilk, 50.) - -[7] It took Braddock three weeks to march from Alexandria to Cumberland. -He was two months and nineteen days on the way from Alexandria to the -place of his defeat. (_Ib._, 138.) - -[8] "All America watched his [Braddock's] advance." (Wood, 61.) - -[9] For best accounts of Braddock's defeat see Bradley, 75-107; -Lowdermilk, 156-63; and Marshall, i, 7-10. - -[10] "Of one hundred and sixty officers, only six escaped." (Lowdermilk, -footnote to 175.) - -[11] Braddock had five horses killed under him. (_Ib._, 161.) - -[12] "The dastardly behavior of the Regular [British] troops," who -"broke and ran as sheep before hounds." (Washington to Dinwiddie, July -18, 1755; _Writings_: Ford, i, 173-74.) - -[13] Washington to John A. Washington, July 18, 1755. (_Ib._, 176.) - -[14] "The Virginia companies behaved like men and died like soldiers ... -of three companies ... scarce thirty were left alive." (Washington to -Dinwiddie, July 18, 1755; _Writings_: Ford, i, 173-74.) - -[15] Lowdermilk, 182-85; and see Washington's _Writings_: Ford, i, -footnote to 175. For account of battle and rout see Washington's letters -to Dinwiddie, _ib._, 173-76; to John A. Washington, July 18, 1755, -_ib._; to Robert Jackson, Aug. 2, 1755, _ib._, 177-78; also see -Campbell, 472-81. For French account see Hart, ii, 365-67; also, -Sargent: _History of Braddock's Expedition_. - -[16] Washington to John A. Washington, July 18, 1755; _Writings_: Ford, -i, 175. - -[17] "The Defeat of Braddock was totally unlooked for, and it excited -the most painful surprise." (Lowdermilk, 186.) - -[18] "After Braddock's defeat, the Colonists jumped to the conclusion -that all regulars were useless." (Wood, 40.) - -[19] See Stanard: _Story of Bacon's Rebellion_. Bacon's Rebellion -deserves the careful study of all who would understand the beginnings of -the democratic movement in America. Mrs. Stanard's study is the best -brief account of this popular uprising. See also Wertenbaker: _V. U. -S._, chaps. 5 and 6. - -[20] "The news [of Braddock's defeat] gave a far more terrible blow to -the reputation of the regulars than to the British cause [against the -French] itself." (Wood, 61.) - -[21] "From that time [Braddock's defeat] forward the Colonists had a -much less exalted opinion of the valor of the royal troops." -(Lowdermilk, 186.) The fact that the colonists themselves had been -negligent and incompetent in resisting the French or even the Indians -did not weaken their newborn faith in their own prowess and their -distrust of British power. - -[22] _Autobiography._ - -[23] Campbell, 494. "It is remarkable," says Campbell, "that as late as -the year 1756, when the colony was a century and a half old, the Blue -Ridge of mountains was virtually the western boundary of Virginia." And -see Marshall, i, 15; also, _New York Review_ (1838), iii, 330. For -frontier settlements, see the admirable map prepared by Marion F. -Lansing and reproduced in Channing, ii. - -[24] Humphrey Marshall, i, 344-45. Also Binney, in Dillon, iii, 283. - -[25] See _infra_, chap. II. - -[26] Humphrey Marshall, i, 344-45. - -[27] He was one of a company of militia cavalry the following year, -(Journal, H.B. (1756), 378); and he was commissioned as ensign Aug. 27, -1761. (Crozier: _Virginia Colonial Militia_, 96.) And see _infra_, -chaps, III and IV. - -[28] Paxton, 20. - -[29] A copy of a letter (MS.) to Thomas Marshall from his sister -Elizabeth Marshall Martin, dated June 15, 1755, referring to the -Braddock expedition, shows that he was at home at this time. -Furthermore, a man of the quality of Thomas Marshall would not have left -his young wife alone in their backwoods cabin at a time so near the -birth of their first child, when there was an overabundance of men eager -to accompany Braddock. - -[30] Washington MSS., Lib. Cong. - -[31] Simon Kenton, the Indian fighter, was born in the same county in -the same year as John Marshall. (M'Clung: _Sketches of Western -Adventure_, 93.) - -[32] Neither the siege of Louisburg nor the capture of Quebec took such -hold on the public imagination as the British disaster on the -Monongahela. Also, the colonists felt, though unjustly, that they were -entitled to as much credit for the two former events as the British. - -[33] The idea of unity had already germinated. The year before, Franklin -offered his plan of concerted colonial action to the Albany conference. -(_Writings_: Smyth, i, 387.) - -[34] Wood, 38-42. - -[35] For these genealogies see Slaughter: _Bristol Parish_, 212; Lee: -_Lee of Virginia_, 406 _et seq._; Randall, i, 6-9; Tucker, i, 26. See -Meade, i, footnote to 138-39, for other descendants of William Randolph -and Mary Isham. - -[36] _Va. Mag. Hist. and Biog._, iii, 261; xviii, 86-87. - -[37] The curious sameness in the ancestry of Marshall and Jefferson is -found also in the surroundings of their birth. Both were born in log -cabins in the backwoods. Peter Jefferson, father of Thomas, "was the -third or fourth white settler within the space of several miles" of his -cabin home, which he built "in a small clearing in the dense and -primeval forest." (Randall, i, 11.) Here Jefferson was born, April 2, -1743, a little more than twelve years before John Marshall came into the -world, under like conditions and from similar parents. - -Peter Jefferson was, however, remotely connected by descent, on his -mother's side, with men who had been burgesses. His maternal -grandfather, Peter Field, was a burgess, and his maternal -great-grandfather, Henry Soane, was Speaker of the House of Burgesses. -But both Peter Jefferson and Thomas Marshall were "of the people" as -distinguished from the gentry. - -[38] Morse, 3; and Story, in Dillon, iii, 330. - -[39] Randall, i, 7. Peter Jefferson "purchased" four hundred acres of -land from his "bosom friend," William Randolph, the consideration as set -forth in the deed being, "Henry Weatherbourne's biggest bowl of arrack -punch"! (_Ib._) - -[40] Peter Jefferson was County Lieutenant of Albemarle. (_Va. Mag, -Hist. and Biog._, xxiii, 173-75.) Thomas Marshall was Sheriff of -Fauquier. - -[41] Randall, i, 12-13; and see _infra_, chap. II. - -[42] Tucker, i, 26. - -[43] Records of Westmoreland County, Deeds and Wills, viii, I, 276. - -[44] _Ib._ Seventy years later La Rochefoucauld found land adjoining -Norfolk heavily covered with valuable timber, close to the water and -convenient for shipment, worth only from six to seven dollars an acre. -(La Rochefoucauld, iii, 25.) Virginia sold excellent public land for two -cents an acre three quarters of a century after this deed to John -Marshall "of the forest." (Ambler, 44; and see Turner, Wis. Hist. Soc, -1908, 201.) This same land which William Marshall deeded to John -Marshall nearly two hundred years ago is now valued at only from ten to -twenty dollars an acre. (Letter of Albert Stuart, Deputy Clerk of -Westmoreland County, to author, Aug. 26, 1913.) In 1730 it was probably -worth one dollar per acre. - -[45] A term generally used by the richer people in referring to those of -poorer condition who lived in the woods, especially those whose abodes -were some distance from the river. (Statement of W. G. Stanard, -Secretary of the Virginia Historical Society and Dr. H. J. Eckenrode of -Richmond College, and formerly Archivist of the Virginia State Library.) -There were, however, Virginia estates called "The Forest." For example, -Jefferson's father-in-law, John Wayles, a wealthy man, lived in "The -Forest." - -[46] Will of John Marshall "of the forest," made April 1, 1752, probated -May 26, 1752, and recorded June 22, 1752; Records of Westmoreland -County, Deeds and Wills, xi, 419 _et seq._ (Appendix II.) - -[47] _Ib._, 421. - -[48] _Autobiography_. Marshall gives the ancestry of his wife more fully -and specifically. See _infra_, chap. V. - -[49] Will of Thomas Marshall, "carpenter," probated May 31, 1704; -Records of Westmoreland County, Deeds and Wills, iii, 232 _et seq._ -(Appendix I.) - -[50] Most curiously, precisely this is true of Thomas Jefferson's -paternal ancestry. - -[51] There is a family tradition that the first of this particular -Marshall family in America was a Royalist Irish captain who fought under -Charles I and came to America when Cromwell prevailed. This may or may -not be true. Certainly no proof of it has been discovered. The late -Wilson Miles Cary, whose authority is unquestioned in genealogical -problems upon which he passed judgment, decided that "the Marshall -family begins absolutely with Thomas Marshall, 'Carpenter.'" (The Cary -Papers, MSS., Va. Hist. Soc. The _Virginia Magazine of History and -Biography_ is soon to publish these valuable genealogical papers.) - -Within comparatively recent years, this family tradition has been -ambitiously elaborated. It includes among John Marshall's ancestors -William le Mareschal, who came to England with the Conqueror; the -celebrated Richard de Clare, known as "Strongbow"; an Irish king, -Dermont; Sir William Marshall, regent of the kingdom of England and -restorer of Magna Charta; a Captain John Marshall, who distinguished -himself at the siege of Calais in 1558; and finally, the Irish captain -who fought Cromwell and fled to Virginia as above mentioned. (Paxton, 7 -_et seq._) - -Senator Humphrey Marshall rejected this story as "a myth supported by -vanity." (_Ib._) Colonel Cary declares that "there is no evidence -whatever in support of it." (Cary Papers, MSS.) Other painstaking -genealogists have reached the same conclusion. (See, for instance, -General Thomas M. Anderson's analysis of the subject in _Va. Mag. Hist. -and Biog._, xii, 328 _et seq._) - -Marshall himself, of course, does not notice this legend in his -_Autobiography_; indeed, it is almost certain that he never heard of it. -In constructing this picturesque genealogical theory, the kinship of -persons separated by centuries is assumed largely because of a -similarity of names. This would not seem to be entirely convincing. -There were many Marshalls in Virginia no more related to one another -than the various unrelated families by the name of Smith. Indeed, -_maréchal_ is the French word for a "shoeing smith." - -For example, there lived in Westmoreland County, at the same time with -John Marshall "of the forest," another John Marshall, who died intestate -and the inventory of whose effects was recorded March 26, 1751, a year -before John Marshall "of the forest" died. These two John Marshalls do -not seem to have been kinsmen. - -The only prominent person in Virginia named Marshall in 1723-34 was a -certain Thomas Marshall who was a member of the colony's House of -Burgesses during this period; but he was from Northampton County. -(Journal, H.B. (1712-23), xi; _ib._ (1727-40), viii, and 174.) He does -not appear to have been related in any way to John "of the forest." - -There were numerous Marshalls who were officers in the Revolutionary War -from widely separated colonies, apparently unconnected by blood or -marriage. For instance, there were Abraham, David, and Benjamin Marshall -from Pennsylvania; Christopher Marshall from Massachusetts; Dixon -Marshall from North Carolina; Elihu Marshall from New York, etc. -(Heitman, 285.) - -At the same time that John Marshall, the subject of this work, was -captain in a Virginia regiment, two other John Marshalls were captains -in Pennsylvania regiments. When Thomas Marshall of Virginia was an -officer in Washington's army, there were four other Thomas Marshalls, -two from Massachusetts, one from South Carolina, and one from Virginia, -all Revolutionary officers. (_Ib._) - -When Stony Point was taken by Wayne, among the British prisoners -captured was Lieutenant John Marshall of the 17th Regiment of British -foot (see Dawson, 86); and Captain John Marshall of Virginia was one of -the attacking force. (See _infra_, chap. IV.) - -In 1792, John Marshall of King and Queen County, a boatswain, was a -Virginia pensioner. (_Va. Hist. Prs._, v, 544.) He was not related to -John Marshall, who had become the leading Richmond lawyer of that time. - -While Hamilton was Secretary of the Treasury he received several letters -from John Marshall, an Englishman, who was in this country and who wrote -Hamilton concerning the subject of establishing manufactories. (Hamilton -MSS., Lib. Cong.) - -Illustrations like these might be continued for many pages. They merely -show the danger of inferring relationship because of the similarity of -names, especially one so general as that of Marshall. - -[52] The Cary Papers, _supra_. Here again the Marshall legend riots -fantastically. This time it makes the pirate Blackbeard the first -husband of Marshall's paternal grandmother; and with this freebooter she -is said to have had thrilling and melancholy experiences. It deserves -mention only as showing the absurdity of such myths. Blackbeard was one -Edward Teach, whose career is well authenticated (Wise, 186.) Colonel -Cary put a final quietus on this particular tale, as he did on so many -other genealogical fictions. - -[53] See Douglas: _Peerage of Scotland_ (1764), 448. Also Burke: -_Peerage_ (1903), 895; and _ib._ (1876). This peerage is now extinct. -See Burke: _Extinct Peerages_. - -[54] For appreciation of this extraordinary man see Carlyle's _Frederick -the Great_. - -[55] Paxton, 30. - -[56] From data furnished by Justice James Keith, President of the Court -of Appeals of Virginia. - -[57] Paxton, 30; and see Meade, ii, 216. - -[58] Data furnished by Thomas Marshall Smith of Baltimore, Md. - -[59] With this lady the tradition deals most unkindly and in highly -colored pictures. An elopement, the deadly revenge of outraged brothers, -a broken heart and resulting insanity overcome by gentle treatment, only -to be reinduced in old age by a fraudulent Enoch Arden letter apparently -written by the lost love of her youth--such are some of the incidents -with which this story clothes Marshall's maternal grandmother. (Paxton, -25-26.) - -[60] _Autobiography._ - -[61] In general, Virginia women at this time had very little education -(Burnaby, 57.) Sometimes the daughters of prominent and wealthy families -could not read or write. (Bruce: _Inst._, i, 454-55.) Even forty years -after John Marshall was born, there was but one girls' school in -Virginia. (La Rochefoucauld, iii, 227.) In 1789, there were very few -schools of any kind in Virginia, it appears. (Journal, H.B. (Dec. 14, -1789), 130; and see _infra_, chap. VI.) - -[62] Paxton, 30. Marischal College, Aberdeen, was founded by George -Keith, Fifth Earl Marischal (1593). - -[63] See _infra_, chap. II. When Leeds Parish was organized, we find -Thomas Marshall its leading vestryman. He was always a stanch churchman. - -[64] Jones, 35; Burnaby,58. But see Maxwell in _William and Mary College -Quarterly_, xix, 73-103; and see Bruce: _Econ._, i, 425, 427, 585, 587. - -[65] "Though tobacco exhausts the land to a prodigious degree, the -proprietors take no pains to restore its vigor; they take what the soil -will give and abandon it when it gives no longer. They like better to -clear new lands than to regenerate the old." (De Warville, 439; and see -Fithian, 140.) - -The land produced only "four or five bushels of wheat per acre or from -eight to ten of Indian corn. These fields are never manured, hardly even -are they ploughed; and it seldom happens that their owners for two -successive years exact from them these scanty crops.... The country ... -everywhere exhibits the features of laziness, of ignorance, and -consequently of poverty." (La Rochefoucauld, iii, 106-07, describing -land between Richmond and Petersburg, in 1797; and see Schoepf, ii, 32, -48; and Weld, i, 138, 151.) - -[66] Burnaby, 45, 59. The estate of Richard Randolph of Curels, in 1742 -embraced "not less than forty thousand acres of the choicest lands." -(Garland, i, 7.) The mother of George Mason bought ten thousand acres in -Loudoun County for an insignificant sum. (Rowland, i, 51.) The Carter -plantation in 1774 comprised sixty thousand acres and Carter owned six -hundred negroes. (Fithian, 128.) Compare with the two hundred acres and -few slaves of John Marshall "of the forest," _supra_. - -Half a century later the very best lands in Virginia with valuable mines -upon them sold for only eighteen dollars an acre. (La Rochefoucauld, -iii, 124.) For careful account of the extent of great holdings in the -seventeenth century see Wertenbaker: _P. and P._, 34-35, 97-99. -Jefferson in 1790 owned two hundred slaves and ten thousand acres of -very rich land on the James River. (Jefferson to Van Staphorst, Feb. 28, -1790; _Works_: Ford, vi, 33.) Washington owned enormous quantities of -land, and large numbers of slaves. His Virginia holdings alone amounted -to thirty-five thousand acres. (Beard: _Econ. I. C._, 144.) - -[67] Burnaby, 54. - -[68] In the older counties the slaves outnumbered the whites; for -instance, in 1790 Westmoreland County had 3183 whites, 4425 blacks, and -114 designated as "all others." In 1782 in the same county 410 -slave-owners possessed 4536 slaves and 1889 horses. (_Va. Mag. Hist. and -Biog._, x, 229-36.) - -[69] Ambler, 11. The slaves of some planters were valued at more than -thirty thousand pounds sterling. (Fithian, 286; and Schoepf, ii, 38; -also, Weld, i, 148.) - -[70] Robert Carter was a fine example of this rare type. (See Fithian, -279-80.) - -[71] Burnaby, 53-54 and 59. "The Virginians ... are an indolent haughty -people whose thoughts and designs are directed solely towards p[l]aying -the lord, owning great tracts of land and numerous troops of slaves. Any -man whatever, if he can afford so much as 2-3 [two or three] negroes, -becomes ashamed of work, and goes about in idleness, supported by his -slaves." (Schoepf, ii, 40.) - -[72] "Notes on Virginia"; _Works_: Ford, iv, 82-83. See La -Rochefoucauld, iii, p. 161, on Jefferson's slaves. - -[73] Jefferson to Chastellux, Sept. 2, 1785; _Thomas Jefferson -Correspondence_, Bixby Collection: Ford, 12; and see Jefferson's -comparison of the sections of the country, _ib._ and _infra_, chap. VI. - -[74] "Many of the wealthier class were to be seen seeking relief from -the vacuity of idleness, not merely in the allowable pleasures of the -chase and the turf, but in the debasing ones of cock-fighting, gaming, -and drinking." (Tucker, i, 18; and see La Rochefoucauld, iii, 77; Weld, -i, 191; also _infra_, chap. VII, and references there given.) - -[75] Jones, 48, 49, and 52; Chastellux, 222-24; also, translator's note -to _ib._, 292-93. The following order from the Records of the Court of -Rappahannock County, Jan. 2, 1688 (_sic_), p. 141, is illustrative:-- - -"It having pleased Almighty God to bless his Royall Mahst. with the -birth of a son & his subjects with a Prince of Wales, and for as much as -his Excellency hath sett apart the 16th. day of this Inst. Janr'y. for -solemnizing the same. To the end therefore that it may be don with all -the expressions of joy this County is capable of, this Court have -ordered that Capt. Geo. Taylor do provide & bring to the North Side -Courthouse for this county as much Rum or other strong Liquor with sugar -proportionable as shall amount to six thousand five hundred pounds of -Tobb. to be distributed amongst the Troops of horse, Compa. of foot and -other persons that shall be present at the Sd. Solemnitie. And that the -said sum be allowed him at the next laying of the Levey. As also that -Capt. Samll. Blomfield provide & bring to the South side Courthouse for -this county as much Rum or other strong Liquor Wth. sugar proportionable -as shall amount to three thousand five hundred pounds of Tobb. to be -distributed as above att the South side Courthouse, and the Sd. sum to -be allowed him at the next laying of the Levey." - -And see Bruce: _Econ._, ii, 210-31; also Wise, 320, 327-29. Although -Bruce and Wise deal with a much earlier period, drinking seems to have -increased in the interval. (See Fithian, 105-14, 123.) - -[76] As in Massachusetts, for instance. "In most country towns ... you -will find almost every other house with a sign of entertainment before -it.... If you sit the evening, you will find the house full of people, -drinking drams, flip, toddy, carousing, swearing." (John Adams's -_Diary_, describing a New England county, in 1761; _Works_: Adams, ii, -125-26. The Records of Essex County, Massachusetts, now in process of -publication by the Essex Institute, contain many cases that confirm the -observation of Adams.) - -[77] Meade, i, 52-54; and see Schoepf, ii, 62-63. - -[78] Wise, 317-19; Bruce: _Inst._, i, 308-15. - -[79] Bruce: _Inst._, i, 317-22; and see especially, _Va. Mag. Hist. and -Biog._, ii, 196 _et seq._ - -[80] _Ib._, 323-30; also Fithian, 50 _et seq._ - -[81] Bruce: _Inst._, i, 331-42. - -[82] _Ib._, 452-53. - -[83] _Ib._, 456-57. Bruce shows that two thirds of the women who joined -in deeds could not write. This, however, was in the richer section of -the colony at a much earlier period. Just before the Revolution Virginia -girls, even in wealthy families, "were simply taught to read and write -at 25/ [shillings] and a load of wood per year--A boarding school was -no where in Virginia to be found." (Mrs. Carrington to her sister Nancy; -MS.) Part of this letter appears in the _Atlantic Monthly_ series cited -hereafter (see chap. V); but the teacher's pay is incorrectly printed as -"pounds" instead of "shillings." (_Atlantic Monthly_, lxxxiv, 544-45.) - -[84] Bruce: _Inst._, i, 402-42; and see Wise, 313-15. Professor Tucker -says that "literature was neglected, or cultivated, by the small number -who had been educated in England, rather as an accomplishment and a mark -of distinction than for the substantial benefits it confers." (Tucker, -i, 18.) - -[85] Fithian, 177. - -[86] See catalogue in _W. and M. C. Q._, x and xi. - -[87] See catalogue in Appendix A to Byrd's _Writings_: Bassett. - -[88] See catalogue of John Adams's Library, in the Boston Public -Library. - -[89] Ambler, 9; and see Wise, 68-70. - -[90] Trustworthy data on this subject is given in the volumes of the -_Va. Mag. Hist. and Biog._; see also _W. and M. C. Q._ - -[91] Wertenbaker: _P. and P._, 14-20. But see William G. Stanard's -exhaustive review of Mr. Wertenbaker's book in _Va. Mag. Hist. and -Biog._, xviii, 339-48. - -[92] "One hundred young maids for wives, as the former ninety sent. One -hundred boys more for apprentices likewise to the public tenants. One -hundred servants to be disposed among the old planters which they -exclusively desire and will pay the company their charges." (_Virginia -Company Records_, i, 66; and see Fithian, 111.) - -[93] For the understanding in England at that period of the origin of -this class of Virginia colonists see Defoe: _Moll Flanders_, 65 _et -seq._ On transported convicts see _Amer. Hist. Rev._, ii. 12 _et seq._ -For summary of the matter see Channing, i, 210-14, 226-27. - -[94] Fithian to Greene, Dec. 1, 1773; Fithian, 280. - -[95] Fithian to Peck, Aug. 12, 1774; Fithian, 286-88; and see Professor -Tucker's searching analysis in Tucker, i, 17-22; also see Lee, in Ford: -_P. on C._, 296-97. As to a genuinely aristocratic _group_, the New York -patroons were, perhaps, the most distinct in the country. - -[96] Wertenbaker: _P. and P._, 14-20; also _Va. Mag. Hist. and Biog._, -xviii, 339-48. - -[97] For accounts of brutal physical combats, see Anburey, ii, 310 _et -seq._ And for dueling, though at an earlier period, see Wise, 329-31. -The practice of dueling rapidly declined; but fighting of a violent and -often repulsive character persisted, as we shall see, far into the -nineteenth century. Also, see La Rochefoucauld, Chastellux, and other -travelers, _infra_, chap. VII. - -[98] Schoepf, i, 261; and see references, _infra_, chap. VII. - -[99] After Braddock's defeat the Indians "extended their raids ... -pillaging and murdering in the most ruthless manner.... The whole -country from New York to the heart of Virginia became the theatre of -inhuman barbarities and heartless destruction." (Lowdermilk, 186.) - -[100] Although the rifle did not come into general use until the -Revolution, the firearms of this period have been so universally -referred to as "rifles" that I have, for convenience, adopted this -inaccurate term in the first two chapters. - -[101] "Their actions are regulated by the wildness of the neighbourhood. -The deer often come to eat their grain, the wolves to destroy their -sheep, the bears to kill their hogs, the foxes to catch their poultry. -This surrounding hostility immediately puts the gun into their -hands,... and thus by defending their property, they soon become -professed hunters; ... once hunters, farewell to the plough. The chase -renders them ferocious, gloomy, and unsociable; a hunter wants no -neighbour, he rather hates them.... The manners of the Indian natives -are respectable, compared with this European medley. Their wives and -children live in sloth and inactivity.... You cannot imagine what an -effect on manners the great distance they live from each other has.... -Eating of wild meat ... tends to alter their temper.... I have seen it." -(Crèvecoeur, 66-68.) Crèvecoeur was himself a frontier farmer. -(_Writings_: Sparks, ix, footnote to 259.) - -[102] "Many families carry with them all their decency of conduct, -purity of morals, and respect of religion; but these are scarce." -(Crèvecoeur, 70.) Crèvecoeur says his family was one of these. - -[103] This bellicose trait persisted for many years and is noted by all -contemporary observers. - - - - -CHAPTER II - -A FRONTIER EDUCATION - - "Come to me," quoth the pine tree, - "I am the giver of honor." (Emerson.) - - I do not think the greatest things have been done for the world by - its bookmen. Education is not the chips of arithmetic and grammar. - (Wendell Phillips.) - - -John Marshall was never out of the simple, crude environment of the near -frontier for longer than one brief space of a few months until his -twentieth year, when, as lieutenant of the famous Culpeper Minute Men, -he marched away to battle. The life he had led during this period -strengthened that powerful physical equipment which no strain of his -later years seemed to impair; and helped to establish that extraordinary -nervous equilibrium which no excitement or contest ever was able to -unbalance.[104] This foundation part of his life was even more -influential on the forming mind and spiritual outlook of the growing -youth. - -Thomas Marshall left the little farm of poor land in Westmoreland County -not long after the death of his father, John Marshall "of the forest." -This ancestral "estate" had no attractions for the enterprising young -man. Indeed, there is reason for thinking that he abandoned it.[105] He -lifted his first rooftree in what then were still the wilds of Prince -William County.[106] There we find him with his young wife, and there in -the red year of British disaster his eldest son was born. The cabin has -long since disappeared, and only a rude monument of native stone, -erected by college students in recent years, now marks the supposed site -of this historic birthplace. - -The spot is a placid, slumberous countryside. A small stream runs hard -by. In the near distance still stands one of the original cabins of -Spotswood's Germans.[107] But the soil is not generous. When Thomas -Marshall settled there the little watercourse at the foot of the gentle -slope on which his cabin stood doubtless ran bank-full; for in 1754 the -forests remained thick and unviolated about his cabin,[108] and fed the -waters from the heavy rains in restrained and steady flow to creek and -river channels. Amidst these surroundings four children of Thomas -Marshall and Mary Keith were born.[109] - -The sturdy young pioneer was not content to remain permanently at -Germantown. A few years later found him building another home about -thirty miles farther westward, in a valley in the Blue Ridge -Mountains.[110] Here the elder son spent the critical space of life from -childhood to his eighteenth year. This little building still stands, -occupied by negroes employed on the estate of which it forms a part. The -view from it even now is attractive; and in the days of John Marshall's -youth must have been very beautiful. - -The house is placed on a slight rise of ground on the eastern edge of -the valley. Near by, to the south and closer still to the west, two -rapid mountain streams sing their quieting, restful song. On all sides -the Blue Ridge lifts the modest heights of its purple hills. This valley -at that time was called "The Hollow," and justly so; for it is but a cup -in the lazy and unambitious mountains. When the eldest son first saw -this frontier home, great trees thickly covered mountain, hill, and -glade, and surrounded the meadow, which the Marshall dwelling -overlooked, with a wall of inviting green.[111] - -Two days by the very lowest reckoning it must have taken Thomas Marshall -to remove his family to this new abode. It is more likely that three or -four days were consumed in the toilsome task. The very careful maps of -the British survey at that time show only three roads in all immense -Prince William County.[112] On one of these the Marshalls might have -made their way northward, and on another, which it probably joined, they -could have traveled westward. But these trails were primitive and -extremely difficult for any kind of vehicle.[113] - -Some time before 1765, then, rational imagination can picture a strong, -rude wagon drawn by two horses crawling along the stumpy, -rock-roughened, and mud-mired road through the dense woods that led in -the direction of "The Hollow." In the wagon sat a young woman.[114] By -her side a sturdy, red-cheeked boy looked out with alert but quiet -interest showing from his brilliant black eyes; and three other children -cried their delight or vexation as the hours wore on. In this wagon, -too, were piled the little family's household goods; nor did this make a -heavy load, for all the Lares and Penates of a frontier settler's family -in 1760 would not fill a single room of a moderately furnished household -in the present day. - -[Illustration: _"The Hollow," Markham, Virginia_ - -_John Marshall's boyhood home._] - -By the side of the wagon strode a young man dressed in the costume of -the frontier. Tall, broad-shouldered, lithe-hipped, erect, he was a very -oak of a man. His splendid head was carried with a peculiar dignity; and -the grave but kindly command that shone from his face, together with the -brooding thoughtfulness and fearless light of his striking eyes, would -have singled him out in any assemblage as a man to be respected and -trusted. A negro drove the team, and a negro girl walked behind.[115] - -So went the Marshalls to their Blue Ridge home. It was a commodious one -for those days. Two rooms downstairs, one fifteen feet by sixteen, the -other twelve by fourteen, and above two half-story lofts of the same -dimensions, constituted this domestic castle. At one end of the larger -downstairs room is a broad and deep stone fireplace, and from this rises -a big chimney of the same material, supporting the house on the -outside.[116] - -Thomas and Mary Marshall's pride and aspiration, as well as their social -importance among the settlers, are strongly shown by this frontier -dwelling. Unlike those of most of the other backwoodsmen, it was not a -log cabin, but a frame house built of whip-sawed uprights and -boards.[117] It was perhaps easier to construct a one and a half story -house with such materials; for to lift heavy timbers to such a height -required great effort.[118] But Thomas Marshall's social, religious, and -political status[119] in the newly organized County of Fauquier were the -leading influences that induced him to build a house which, for the -time and place, was so pretentious. A small stone "meat house," a -one-room log cabin for his two negroes, and a log stable, completed the -establishment. - -In such an abode, and amidst such surroundings, the fast-growing -family[120] of Thomas Marshall lived for more than twelve years. At -first neighbors were few and distant. The nearest settlements were at -Warrenton, some twenty-three miles to the eastward, and Winchester, a -little farther over the mountains to the west.[121] But, with the horror -of Braddock's defeat subdued by the widespread and decisive counter -victories, settlers began to come into the country on both sides of the -Blue Ridge. These were comparatively small farmers, who, later on, -became raisers of wheat, corn, and other cereals, rather than tobacco. - -Not until John Marshall had passed his early boyhood, however, did these -settlers become sufficiently numerous to form even a scattered -community, and his early years were enlivened with no child -companionship except that of his younger brothers and sisters. For the -most part his days were spent, rifle in hand, in the surrounding -mountains, and by the pleasant waters that flowed through the valley of -his forest home. He helped his mother, of course, with her many labors, -did the innumerable chores which the day's work required, and looked -after the younger children, as the eldest child always must do. To his -brothers and sisters as well as to his parents, he was devoted with a -tenderness peculiar to his uncommonly affectionate nature and they, in -turn, "fairly idolized" him.[122] - -There were few of those minor conveniences which we to-day consider the -most indispensable of the simplest necessities. John Marshall's mother, -like most other women of that region and period, seldom had such things -as pins; in place of them use was made of thorns plucked from the bushes -in the woods.[123] The fare, naturally, was simple and primitive. Game -from the forest and fish from the stream were the principal articles of -diet. Bear meat was plentiful.[124] Even at that early period, salt pork -and salt fish probably formed a part of the family's food, though not -to the extent to which such cured provisions were used by those of the -back country in later years, when these articles became the staple of -the border.[125] - -Corn meal was the basis of the family's bread supply. Even this was not -always at hand, and corn meal mush was welcomed with a shout by the -clamorous brood with which the little cabin soon fairly swarmed. It -could not have been possible for the Marshall family in their house on -Goose Creek to have the luxury of bread made from wheat flour. The -clothing of the family was mostly homespun. "Store goods," whether food, -fabric, or utensil, could be got to Thomas Marshall's backwoods dwelling -only with great difficulty and at prohibitive expense.[126] - -But young John Marshall did not know that he was missing anything. On -the contrary, he was conscious of a certain wealth not found in cities -or among the currents of motion. For ever his eye looked out upon noble -yet quieting, poetic yet placid, surroundings. Always he could have the -inspiring views from the neighboring heights, the majestic stillness of -the woods, the soothing music of meadow and stream. So uplifted was the -boy by the glory of the mountains at daybreak that he always rose while -the eastern sky was yet gray.[127] He was thrilled by the splendor of -sunset and never tired of watching it until night fell upon the vast and -somber forests. For the boy was charged with poetic enthusiasm, it -appears, and the reading of poetry became his chief delight in youth and -continued to be his solace and comfort throughout his long life;[128] -indeed, Marshall liked to make verses himself, and never outgrew the -habit. - -There was in him a rich vein of romance; and, later on, this manifested -itself by his passion for the great creations of fiction. Throughout his -days he would turn to the works of favorite novelists for relaxation and -renewal.[129] - -The mental and spiritual effects of his surroundings on the forming mind -and unfolding soul of this young American must have been as lasting and -profound as were the physical effects on his body.[130] His environment -and his normal, wholesome daily activities could not have failed to do -its work in building the character of the growing boy. These and his -sound, steady, and uncommonly strong parentage must, perforce, have -helped to give him that courage for action, that balanced vision for -judgment, and that serene outlook on life and its problems, which were -so notable and distinguished in his mature and rugged manhood. - -Lucky for John Marshall and this country that he was not city born and -bred; lucky that not even the small social activities of a country town -drained away a single ohm of his nervous energy or obscured with lesser -pictures the large panorama which accustomed his developing intelligence -to look upon big and simple things in a big and simple way. - -There were then no public schools in that frontier[131] region, and -young Marshall went untaught save for the instruction his parents gave -him. For this task his father was unusually well equipped, though not by -any formal schooling. All accounts agree that Thomas Marshall, while not -a man of any learning, had contrived to acquire a useful though limited -education, which went much further with a man of his well-ordered mind -and determined will than a university training could go with a man of -looser fiber and cast in smaller mould. The father was careful, -painstaking, and persistent in imparting to his children and -particularly to John all the education he himself could acquire. - -Between Thomas Marshall and his eldest son a mutual sympathy, respect, -and admiration existed, as uncommon as it was wholesome and beneficial. -"My father," often said John Marshall, "was a far abler man than any of -his sons."[132] In "his private and familiar conversations with me," -says Justice Story, "when there was no other listener ... he never named -his father ... without dwelling on his character with a fond and winning -enthusiasm ... he broke out with a spontaneous eloquence ... upon his -virtues and talents."[133] Justice Story wrote a sketch of Marshall for -the "National Portrait Gallery," in which Thomas Marshall is highly -praised. In acknowledging the receipt of the magazine, Marshall wrote: -"I am particularly gratified by the terms in which you speak of my -father. If any contemporary, who knew him in the prime of manhood, -survived, he would confirm all you say."[134] - -So whether at home with his mother or on surveying trips with his -father, the boy continually was under the influence and direction of -hardy, clear-minded, unusual parents. Their lofty and simple ideals, -their rational thinking, their unbending uprightness, their religious -convictions--these were the intellectual companions of John Marshall's -childhood and youth. While too much credit has not been given Thomas -Marshall for the training of the eldest son, far too little has been -bestowed on Mary Randolph Keith, who was, in all things, the equal of -her husband. - -Although, as we have seen, many books were brought into eastern Virginia -by the rich planters, it was difficult for the dwellers on the frontier -to secure any reading material. Most books had to be imported, were -very expensive, and, in the back country, there were no local sources of -supply where they could be purchased. Also, the frontier settlers had -neither the leisure nor, it appears, the desire for reading[135] that -distinguished the wealthy landlords of the older parts of the -colony.[136] Thomas Marshall, however, was an exception to his class in -his eagerness for the knowledge to be gathered from books and in his -determination that his children should have those advantages which -reading gives. - -So, while his small house in "The Hollow" of the Blue Ridge probably -contained not many more books than children, yet such volumes as were on -that frontier bookshelf were absorbed and made the intellectual -possession of the reader. The Bible was there, of course; and probably -Shakespeare also.[137] The only book which positively is known to have -been a literary companion of John Marshall was a volume of Pope's poems. -He told Justice Story that, by the time he was twelve years old (1767), -he had copied every word of the "Essay on Man" and other of Pope's moral -essays, and had committed to memory "many of the most interesting -passages."[138] This would seem to prove that not many other attractive -books were at the boyhood hands of so eager a reader of poetry and -fiction as Marshall always was. It was quite natural that this volume -should be in that primitive household; for, at that time, Pope was more -widely read, admired, and quoted than any other writer either of poetry -or prose.[139] - -For those who believe that early impressions are important, and who wish -to trace John Marshall's mental development back to its sources, it is -well to spend a moment on that curious work which Pope named his "Essay -on Man." The natural bent of the youth's mind was distinctively logical -and orderly, and Pope's metred syllogisms could not but have appealed to -it powerfully. The soul of Pope's "Essay" is the wisdom of and necessity -for order; and it is plain that the boy absorbed this vital message and -made it his own. Certain it is that even as a beardless young soldier, -offering his life for his country's independence, he already had grasped -the master truth that order is a necessary condition of liberty and -justice. - -It seems probable, however, that other books were brought to this -mountain fireside. There was a limited store within his reach from which -Thomas Marshall could draw. With his employer and friend, George -Washington,[140] he was often a visitor at the wilderness home of Lord -Fairfax just over the Blue Ridge. Washington availed himself of the -Fairfax Library,[141] and it seems reasonable that Thomas Marshall did -the same. It is likely that he carried to his Blue Ridge dwelling an -occasional Fairfax volume carefully selected for its usefulness in -developing his own as well as his children's minds. - -This contact with the self-expatriated nobleman had more important -results, however, than access to his books. Thomas Marshall's life was -profoundly influenced by his early and intimate companionship with the -well-mannered though impetuous and headstrong young Washington, who -engaged him as assistant surveyor of the Fairfax estate.[142] From youth -to manhood, both had close association with Lord Fairfax, who gave -Washington his first employment and secured for him the appointment by -the colonial authorities as public surveyor.[143] Washington was related -by marriage to the proprietor of the Northern Neck, his brother Lawrence -having married the daughter of William Fairfax. When their father died, -Lawrence Washington took the place of parent to his younger -brother;[144] and in his house the great landowner met George -Washington, of whom he became very fond. For more than three years the -youthful surveyor passed most of his time in the Blue Ridge part of the -British nobleman's vast holdings,[145] and in frequent and intimate -contact with his employer. Thus Thomas Marshall, as Washington's -associate and helper, came under the guidance and example of Lord -Fairfax. - -The romantic story of this strange man deserves to be told at length, -but only a résumé is possible here. This summary, however, must be given -for its bearing on the characters of George Washington and Thomas -Marshall, and, through them, its formative influence on John -Marshall.[146] - -Lord Fairfax inherited his enormous Virginia estate from his mother, the -daughter of Lord Culpeper, the final grantee of that kingly domain. This -profligate grant of a careless and dissolute monarch embraced some five -million acres between the Potomac and Rappahannock Rivers back to a -straight line connecting the sources of these streams. While the young -heir of the ancient Fairfax title was in Oxford, his father having died, -his mother and grandmother, the dowager Ladies Fairfax and Culpeper, -forced him to cut off the entail of the extensive Fairfax estates in -England in order to save the heavily mortgaged Culpeper estates in the -same country; and as compensation for this sacrifice, the noble Oxford -student was promised the inheritance of this wild Virginia forest -principality. - -Nor did the youthful baron's misfortunes end there. The lady of his -heart had promised to become his bride, the wedding day was set, the -preparations made. But before that hour of joy arrived, this fickle -daughter of ambition received an offer to become a duchess instead of a -mere baroness, and, throwing over young Fairfax without delay, she -embraced the more exalted station offered her. - -These repeated blows of adversity embittered the youthful head of the -illustrious house of Fairfax against mother and grandmother, and, for -the time being, all but against England itself. So, after some years of -management of his Virginia estate by his cousin, William, who was in -Government employ in America, Lord Fairfax himself left England forever, -came to Virginia, took personal charge of his inherited holdings, and -finally established himself at its very outskirts on the savage -frontier. In the Shenandoah Valley, near Winchester, he built a small -house of native stone and called it Greenway Court,[147] after the -English fashion; but it never was anything more than a hunting -lodge.[148] - -From this establishment he personally managed his vast estates, parting -with his lands to settlers on easy terms. His tenants generally were -treated with liberality and consideration. If any land that was leased -or sold did not turn out as was expected by the purchaser or lessee, -another and better tract would be given in its place. If money was -needed for improvements, Lord Fairfax advanced it. His excess revenues -were given to the poor. So that the Northern Neck under Lord Fairfax's -administration became the best settled, best cultivated, and best -governed of all the upper regions of the colony.[149] - -Through this exile of circumstance, Fate wove another curious thread in -the destiny of John Marshall. Lord Fairfax was the head of that ancient -house whose devotion to liberty had been proved on many a battlefield. -The second Lord Fairfax commanded the Parliamentary forces at Marston -Moor. The third Lord Fairfax was the general of Cromwell's army and the -hero of Naseby. So the proprietor of the Northern Neck, who was the -sixth Lord Fairfax, came of blood that had been poured out for human -rights. He had, as an inheritance of his house, that love of liberty for -which his ancestors had fought.[150] - -But much as he hated oppression, Lord Fairfax was equally hostile to -disorder and upheaval; and his forbears had opposed these even to the -point of helping restore Charles II to the throne. Thus the Virginia -baron's talk and teaching were of liberty with order, independence with -respect for law.[151] - -He loved literature and was himself no mean writer, his contributions -while he was in the University having been accepted by the -"Spectator."[152] His example instructed his companions in manners, too, -and schooled them in the speech and deportment of gentlemen. All who met -George Washington in his mature years were impressed by his correct if -restricted language, his courtly conduct, and his dignified if rigid -bearing. Much of this was due to his noble patron.[153] - -Thomas Marshall was affected in the same way and by the same cause. -Pioneer and backwoodsman though he was, and, as we shall see, true to -his class and section, he yet acquired more balanced ideas of liberty, -better manners, and finer if not higher views of life than the crude, -rough individualists who inhabited the back country. As was the case -with Washington, this intellectual and moral tendency in Thomas -Marshall's development was due, in large measure, to the influence of -Lord Fairfax. While it cannot be said that George Washington imitated -the wilderness nobleman, yet Fairfax undoubtedly afforded his protégé a -certain standard of living, thinking, and acting; and Thomas Marshall -followed the example set by his fellow surveyor.[154] Thus came into the -Marshall household a different atmosphere from that which pervaded the -cabins of the Blue Ridge. - -All this, however, did not make for his unpopularity among Thomas -Marshall's distant, scattered, and humbly placed neighbors. On the -contrary, it seems to have increased the consideration and respect which -his native qualities had won for him from the pioneers. Certainly Thomas -Marshall was the foremost man in Fauquier County when it was established -in 1759. He was almost immediately elected to represent the county in -the Virginia House of Burgesses;[155] and, six years later, he was -appointed Sheriff by Governor Fauquier, for whom the county was -named.[156] The shrievalty was, at that time, the most powerful local -office in Virginia; and the fees and perquisites of the place made it -the most lucrative.[157] - -By 1765 Thomas Marshall felt himself sufficiently established to acquire -the land where he had lived since his removal from Germantown. In the -autumn of that year he leased from Thomas Ludwell Lee and Colonel -Richard Henry Lee the three hundred and thirty acres on Goose Creek -"whereon the said Thomas Marshall now lives." The lease was "for and -during the natural lives of ... Thomas Marshall, Mary Marshall his wife, -and John Marshall his son and ... the longest liver of them." The -consideration was "five shillings current money in hand paid" and a -"yearly rent of five pounds current money, and the quit rents and Land -Tax."[158] - -In 1769 Leeds Parish, embracing Fauquier County, was established.[159] -Of this parish Thomas Marshall became the principal vestryman.[160] This -office supplemented, in dignity and consequence, that of sheriff; the -one was religious and denoted high social status, the other was civil -and evidenced political importance.[161] The occupancy of both marked -Thomas Marshall as the chief figure in the local government and in the -social and political life of Fauquier County, although the holding of -the superior office of burgess left no doubt as to his leadership. The -vestries had immense influence in the civil affairs of the parish and -the absolute management of the practical business of the established -(Episcopal) church.[162] Among the duties and privileges of the vestry -was that of selecting and employing the clergyman.[163] - -The vestry of Leeds Parish, with Thomas Marshall at its head, chose for -its minister a young Scotchman, James Thompson, who had arrived in -Virginia a year or two earlier. He lived at first with the Marshall -family.[164] Thus it came about that John Marshall received the first of -his three short periods of formal schooling; for during his trial year -the young[165] Scotch deacon returned Thomas Marshall's hospitality by -giving the elder children such instruction as occasion offered,[166] as -was the custom of parsons, who always were teachers as well as -preachers. We can imagine the embryo clergyman instructing the eldest -son under the shade of the friendly trees in pleasant weather or before -the blazing logs in the great fireplace when winter came. While living -with the Marshall family, he doubtless slept with the children in the -half-loft[167] of that frontier dwelling. - -There was nothing unusual about this; indeed, circumstances made it the -common and unavoidable custom. Washington tells us that in his surveying -trips, he frequently slept on the floor in the room of a settler's cabin -where the fireplace was and where husband, wife, children, and visitors -stretched themselves for nightly rest; and he remarks that the person -was lucky who got the spot nearest the fireplace.[168] - -At the end of a year the embryo Scottish clergyman's character, ability, -and services having met the approval of Thomas Marshall and his fellow -vestrymen, Thompson returned to England for orders.[169] So ended John -Marshall's first instruction from a trained teacher. His pious tutor -returned the next year, at once married a young woman of the Virginia -frontier, and settled on the glebe near Salem, where he varied his -ministerial duties by teaching such children of his parishioners as -could get to him. It may be that John Marshall was among them.[170] - -In the light they throw upon the Marshall family, the political opinions -of Mr. Thompson are as important as was his teaching. True to the -impulses of youth, he was a man of the people, ardently championed their -cause, and was fervently against British misrule, as was his principal -vestryman. Five years later we find him preaching a sermon on the -subject so strong that a part of it has been preserved.[171] - -Thus the years of John Marshall's life sped on until his eighteenth -birthday. By this time Thomas Marshall's rapidly growing prosperity -enabled him to buy a larger farm in a more favorable locality. In -January, 1773, he purchased from Thomas Turner seventeen hundred acres -adjacent to North Cobler Mountain, a short distance to the east of his -first location in "The Hollow."[172] For this plantation he paid "nine -hundred and twelve pounds ten shillings current money of Virginia." Here -he established himself for the third time and remained for ten years. - -On an elevation overlooking valley, stream, and grove, with the Blue -Ridge as a near background, he built a frame house thirty-three by -thirty feet, the attic or loft under the roof serving as a second -story.[173] The house had seven rooms, four below and three above. One -of the upper rooms is, comparatively, very large, being twenty-one by -fifteen feet; and, according to tradition, this was used as a -school-room for the Marshall children. Indeed, the structure was, for -that section and period, a pretentious dwelling. This is the famous Oak -Hill.[174] The house still stands as a modest wing to the large and -attractive building erected by John Marshall's eldest son, Thomas, many -years later. - -[Illustration: OAK HILL - -From a water-color. The original house, built by Thomas Marshall in -1773, is shown at the right, in the rear of the main building.] - -A book was placed in the hands of John Marshall, at this time, that -influenced his mind even more than his reading of Pope's poetry when a -small boy. Blackstone's "Commentaries" was published in America in 1772 -and one of the original subscribers was "Captain Thomas Marshall, Clerk -of Dunmore County, Virginia."[175] The youthful backwoodsman read -Blackstone with delight; for this legal classic is the poetry of law, -just as Pope is logic in poetry. Also, Thomas Marshall saw to it that -his son read Blackstone as carefully as circumstances permitted. He had -bought the book for John's use as much as or more than for his own -information. Marshall's parents, with a sharp eye on the calling that -then brought greatest honor and profit, had determined that their eldest -son should be a lawyer. "From my infancy," says Marshall, "I was -destined for the bar."[176] He did not, we believe, give his attention -exclusively to Blackstone. Indeed, it appears certain that his legal -reading at this period was fragmentary and interrupted, for his time was -taken up and his mind largely absorbed by military exercises and study. -He was intent on mastering the art of war against the day when the call -of patriotism should come to him to be a soldier.[177] So the law book -was pushed aside by the manual of arms. - -About this time John Marshall was given his second fragment of formal -teaching. He was sent to the school of the Reverend Archibald Campbell -in Westmoreland County.[178] This embryo "academy" was a primitive -affair, but its solitary instructor was a sound classical scholar -equipped with all the learning which the Scottish universities could -give. He was a man of unusual ability, which, it appears, was the common -possession of his family. He was the uncle of the British poet -Campbell.[179] - -The sons of this colonial parson school-teacher from Scotland became men -of note and influence, one of them among the most distinguished lawyers -of Virginia.[180] Indeed, it was chiefly in order to teach his two boys -that Mr. Campbell opened his little school in Westmoreland.[181] So, -while John Marshall attended the "academy" for only a few months, that -brief period under such a teacher was worth much in methods of thought -and study. - -The third scanty fragment of John Marshall's education by professional -instructors comes seven years later, at a time and under circumstances -which make it necessary to defer a description of it. - -During all these years, however, young Marshall was getting another kind -of education more real and more influential on his later life than any -regular schooling could have given him. Thomas Marshall served in the -House of Burgesses at Williamsburg[182] from 1761 until October, 1767, -when he became Sheriff of Fauquier County.[183] In 1769 he was again -chosen Burgess,[184] and reëlected until 1773, when he was appointed -Clerk of Dunmore County.[185] In 1775 he once more appears as Burgess -for Fauquier County.[186] Throughout this period, George Washington also -served as Burgess from Westmoreland County. Thomas Marshall was a member -of the standing committees on Trade, Religion, Propositions and -Grievances, and on several special committees and commissions.[187] - -The situations, needs, and interests of the upland counties above the -line of the falls of the rivers, so different from those on the -tidewater, had made the political oligarchy of the lower counties more -distinct and conspicuous than ever. This dominant political force was -aristocratic and selfish. It was generally hostile to the opinions of -the smaller pioneer landowners of the back country and it did not -provide adequately for their necessities. Their petitions for roads, -bridges, and other indispensable requisites of social and industrial -life usually were denied; and their rapidly growing democratic spirit -was scorned with haughty disfavor and contempt.[188] - -In the House of Burgesses, one could tell by his apparel and deportment, -no less than by his sentiments, a member from the mountains, and indeed -from anywhere above the fall line of the rivers; and, by the same -tokens, one from the great plantations below. The latter came -fashionably attired, according to the latest English mode, with the silk -knee breeches and stockings, colored coat, ornamented waistcoat, linen -and lace, buckled shoes, garters, and all details of polite adornment -that the London fashion of the time dictated. The upland men were -plainly clad; and those from the border appeared in their native -homespun, with buckskin shirts, coonskin caps, and the queue of their -unpowdered hair tied in a bag or sack of some thin material. To this -upland class of Burgesses, Thomas Marshall belonged. - -He had been a member of the House for four years when the difference -between the two Virginia sections and classes suddenly crystallized. The -upper counties found a leader and fought and overcame the hitherto -invincible power of the tidewater aristocracy, which, until then, had -held the Government of Virginia in its lordly hand. - -This explosion came in 1765, when John Marshall was ten years old. For -nearly a quarter of a century the combination of the great planter -interests of eastern Virginia had kept John Robinson Speaker of the -House and Treasurer of the Colony.[189] He was an ideal representative -of his class--rich, generous, kindly, and ever ready to oblige his -fellow members of the ruling faction.[190] To these he had lent large -sums of money from the public treasury and, at last, finding himself -lost unless he could find a way out of the financial quagmire in which -he was sinking, Robinson, with his fellow aristocrats, devised a scheme -for establishing a loan office, equipping it with a million and a -quarter of dollars borrowed on the faith of the colony, to be lent to -individuals on personal security.[191] A bill to this effect was -presented and the tidewater machine was oiled and set in motion to put -it through. - -As yet, Robinson's predicament was known only to himself and those upon -whom he had bestowed the proceeds of the people's taxes; and no -opposition was expected to the proposed resolution which would extricate -the embarrassed Treasurer. But Patrick Henry, a young member from -Hanover County, who had just been elected to the House of Burgesses and -who had displayed in the famous Parsons case a courage and eloquence -which had given him a reputation throughout the colony,[192] opposed, on -principle, the proposed loan-office law. In a speech of startling power -he attacked the bill and carried with him every member from the up -counties. The bill was lost.[193] It was the first defeat ever -experienced by the combination that had governed Virginia so long that -they felt that it was their inalienable right to do so. One of the votes -that struck this blow was cast by Thomas Marshall.[194] Robinson died -the next year; his defalcation was discovered and the real purpose of -the bill was thus revealed.[195] - -Quick on the heels of this victory for popular rights and honest -government trod another event of vital influence on American history. -The British Parliament, the year before, had passed resolutions -declaring the right of Parliament to tax the colonies without -representation, and, indeed, to enact any law it pleased for the -government and administration of British dominions wherever -situated.[196] The colonies protested, Virginia among them; but when -finally Parliament enacted the Stamp Act, although the colonies were in -sullen anger, they yet prepared to submit.[197] The more eminent men -among the Virginia Burgesses were willing to remonstrate once more, but -had not the heart to go further.[198] It was no part of the plan or -feeling of the aristocracy to affront the Royal Government openly. At -this moment, Patrick Henry suddenly offered his historic resolutions, -the last one a bold denial of Parliament's right to pass the Stamp Act, -and a savage defiance of the British Government.[199] - -Cautious members of the tidewater organization were aghast. They did not -like the Stamp Act themselves, but they thought that this was going too -far. The logical end of it would be armed conflict, they said; or at the -very least, a temporary suspension of profitable commerce with England. -Their material interests were involved; and while they hazarded these -and life itself most nobly when the test of war finally came, ten years -later, they were not minded to risk either business or comfort until -forced to do so.[200] - -But a far stronger influence with them was their hatred of Henry and -their fear of the growing power of the up country. They were smarting -from the defeat[201] of the loan-office bill. They did not relish the -idea of following the audacious Henry and his democratic supporters -from the hills. They resented the leadership which the "new men" were -assuming. To the aristocratic machine it was offensive to have any -movement originate outside itself.[202] - -The up-country members to a man rallied about Patrick Henry and fought -beneath the standard of principle which he had raised. The line that -marked the division between these contending forces in the Virginia -House of Burgesses was practically identical with that which separated -them in the loan-office struggle which had just taken place. The same -men who had supported Robinson were now against any measure which might -too radically assert the rights of the colonies and offend both the -throne and Westminster Hall. And as in the Robinson case so in the fight -over Henry's Stamp Act Resolutions, the Burgesses who represented the -frontier settlers and small landowners and who stood for their -democratic views, formed a compact and militant force to strike for -popular government as they already had struck, and successfully, for -honest administration.[203] - -Henry's fifth resolution was the first written American assertion of -independence, the virile seed out of which the declaration at -Philadelphia ten years later directly grew. It was over this resolution -that Thomas Jefferson said, "the debate was most bloody";[204] and it -was in this particular part of the debate that Patrick Henry made his -immortal speech, ending with the famous words, "Tarquin and Cæsar had -each his Brutus, Charles the First his Cromwell, and George the Third--" -And as the cries of "Treason! Treason! Treason!" rang from every part of -the hall, Henry, stretching himself to the utmost of his stature, -thundered, "--_may profit by their example_. If _this_ be treason, make -the most of it."[205] - -Henry and the stout-hearted men of the hills won the day, but only by a -single vote. Peyton Randolph, the foremost member of the tidewater -aristocracy and Royal Attorney-General, exclaimed, "By God, I would have -given one[206] hundred guineas for a single vote!"[207] Thomas Marshall -again fought by Henry's side and voted for his patriotic defiance of -British injustice.[208] - -[Illustration: _Oak Hill_] - -This victory of the poorer section of the Old Dominion was, in Virginia, -the real beginning of the active period of the Revolution. It was -more--it was the ending of the hitherto unquestioned supremacy of -the tidewater aristocracy.[209] It marked the effective entrance of the -common man into Virginia's politics and government. - -When Thomas Marshall returned to his Blue Ridge home, he described, of -course, the scenes he had witnessed and taken part in. The heart of his -son thrilled, we may be sure, as he listened to his father reciting -Patrick Henry's words of fire and portraying the manner, appearance, and -conduct of that master orator of liberty. So it was that John Marshall, -even when a boy, came into direct and living touch with the outside -world and learned at first hand of the dramatic movement and the mighty -forces that were about to quarry the materials for a nation. - -Finally the epic year of 1775 arrived,--the year of the Boston riots, -Paul Revere's ride, Lexington and Concord,--above all, the year of the -Virginia Resolutions for Arming and Defense. Here we find Thomas -Marshall a member of the Virginia Convention,[210] when once more the -radicals of the up country met and defeated the aristocratic -conservatives of the older counties. The latter counseled prudence. They -argued weightily that the colony was not prepared for war with the Royal -Power across the sea. They urged patience and the working-out of the -problem by processes of conciliation and moderate devices, as those made -timid by their own interests always do.[211] Selfish love of ease made -them forget, for the moment, the lesson of Braddock's defeat. They held -up the overwhelming might of Great Britain and the impotence of the -King's subjects in his western dominions; and they were about to -prevail. - -But again Patrick Henry became the voice of America. He offered the -Resolutions for Arming and Defense and carried them with that amazing -speech ending with, "Give me liberty or give me death,"[212] which -always will remain the classic of American liberty. Thomas Marshall, who -sat beneath its spell, declared that it was "one of the most bold, -animated, and vehement pieces of eloquence that had ever been -delivered."[213] Once more he promptly took his stand under Henry's -banner and supported the heroic resolutions with his vote and -influence.[214] So did George Washington, as both had done ten years -before in the battle over Henry's Stamp Act Resolutions in the House of -Burgesses in 1765.[215] - -Not from newspapers, then, nor from second-hand rumor did John Marshall, -now nineteen years old, learn of the epochal acts of that convention. -He heard of them from his father's lips. Henry's inspired speech, which -still burns across a century with undiminished power, came to John -Marshall from one who had listened to it, as the family clustered around -the fireside of their Oak Hill home. The effect on John Marshall's mind -and spirit was heroic and profound, as his immediate action and his -conduct for several years demonstrate. - -We may be sure that the father was not deceived as to the meaning of it -all; nor did he permit his family to be carried off the solid ground of -reality by any emotional excitement. Thomas Marshall was no fanatic, no -fancy-swayed enthusiast resolving highly in wrought-up moments and -retracting humbly in more sober hours. He was a man who looked before he -leaped; he counted the costs; he made up his mind with knowledge of the -facts. When Thomas Marshall decided to act, no unforeseen circumstance -could make him hesitate, no unexpected obstacle could swerve him from -his course; for he had considered carefully and well; and his son was of -like mettle. - -So when Thomas Marshall came back to his Fauquier County home from the -fateful convention of 1775 at Richmond, he knew just what the whole -thing meant; and, so knowing, he gravely welcomed the outcome. He knew -that it meant war; and he knew also what war meant. Already he had been -a Virginia ranger and officer, had seen fighting, had witnessed wounds -and death.[216] The same decision that made him cast his vote for -Henry's resolutions also caused Thomas Marshall to draw his sword from -its scabbard. It inspired him to do more; for the father took down the -rifle from its deerhorn bracket and the hunting-knife from its hook, and -placed them in the hands of his first-born. And so we find father and -son ready for the field and prepared to make the ultimate argument of -willingness to lay down their lives for the cause they believed in. - - -FOOTNOTES: - -[104] Story, in Dillon, iii, 334. - -[105] The records of Westmoreland County do not show what disposition -Thomas Marshall made of the one hundred acres given him by his mother. -(Letter of Albert Stuart, Deputy Clerk of Westmoreland County, Virginia, -to the author, Aug. 26, 1913.) He probably abandoned it just as John -Washington and Thomas Pope abandoned one thousand acres of the same -land. (_Supra._) - -[106] Westmoreland County is on the Potomac River near its entrance into -Chesapeake Bay. Prince William is about thirty miles farther up the -river. Marshall was born about one hundred miles by wagon road from -Appomattox Creek, northwest toward the Blue Ridge and in the wilderness. - -[107] Campbell, 404-05. - -[108] More than forty years later the country around the Blue Ridge was -still a dense forest. (La Rochefoucauld, iii, 173.) And the road even -from Richmond to Petersburg, an hundred miles east and south of the -Marshall cabin, as late as 1797 ran through "an almost uninterrupted -succession of woods." (_Ib._, 106; and see _infra_, chap. VII.) - -[109] John, 1755; Elizabeth, 1756; Mary, 1757; Thomas, 1761. - -[110] Binney, in Dillon, iii, 284. - -[111] The ancient trunks of one or two of these trees still stand close -to the house. - -[112] British map of 1755; Virginia State Library. - -[113] See La Rochefoucauld, iii, 707. These "roads" were scarcely more -than mere tracks through the forests. See chap. VII, infra, for -description of roads at the period between the close of the Revolution -and the beginning of our National Government under the Constitution. -Even in the oldest and best settled colonies the roads were very bad. -Chalkley's _Augusta County (Va.) Records_ show many orders regarding -roads; but, considering the general state of highways, (see _infra_, -chap. VII) these probably concerned very primitive efforts. When Thomas -Marshall removed his family to the Blue Ridge, the journey must have -been strenuous even for that hardship-seasoned man. - -[114] She was born in 1737. (Paxton, 19.) - -[115] At this time, Thomas Marshall had at least two slaves, inherited -from his father. (Will of John Marshall "of the forest," Appendix I.) As -late as 1797 (nearly forty years after Thomas Marshall went to "The -Hollow"), La Rochefoucauld found that even on the "poorer" plantations -about the Blue Ridge the "planters, however wretched their condition, -have all of them one or two negroes." (La Rochefoucauld, iii, 135.) - -[116] Personal inspection. - -[117] Mill-sawed weather-boarding, held by cut nails, now covers the -sides of the house, the original broad whip-sawed boards, fastened by -wrought nails, having long since decayed. - -[118] Practically all log cabins, at that time, had only one story. - -[119] See _infra_. - -[120] Six more children were born while the Marshalls remained in "The -Hollow": James M., 1764; Judith, 1766; William and Charles, 1767; Lucy, -1768; and Alexander, 1770. - -[121] Nearly twenty years later, "Winchester was rude, wild, as nature -had made it," but "it was less so than its inhabitants." (Mrs. -Carrington to her sister Nancy, describing Winchester in 1777, from -personal observation; MS.) - -[122] See Mrs. Carrington to her sister Nancy, _infra_, chap. V. - -[123] John Marshall, when at the height of his career, liked to talk of -these times. "He ever recurred with fondness to that primitive mode of -life, when he partook with a keen relish of balm tea and mush; and when -the females used thorns for pins." (Howe, 263, and see _Hist. Mag._, -iii, 166.) - -Most of the settlers on the frontier and near frontier did not use forks -or tablecloths. Washington found this condition in the house of a -Justice of the Peace. "When we came to supper there was neither a Cloth -upon ye Table nor a knife to eat with; but as good luck would have it, -we had knives of our [own]." (_Writings_: Ford, i, 4.) - -Chastellux testifies that, thirty years later, the frontier settlers -were forced to make almost everything they used. Thus, as population -increased, necessity developed men of many trades and the little -communities became self-supporting. (Chastellux, 226-27.) - -[124] More than a generation after Thomas Marshall moved to "The Hollow" -in the Blue Ridge large quantities of bear and beaver skins were brought -from the Valley into Staunton, not many miles away, just over the Ridge. -(La Rochefoucauld, iii, 179-80.) The product of the Blue Ridge itself -was sent to Fredericksburg and Alexandria. (See Crèvecoeur, 63-65.) -Thirty years earlier (1733) Colonel Byrd records that "Bears, Wolves, -and Panthers" roamed about the site of Richmond; that deer were -plentiful and rattlesnakes considered a delicacy. (Byrd's _Writings_: -Bassett, 293, 318-19.) - -[125] See _infra_, chap. VII. - -[126] Even forty years later, all "store" merchandise could be had in -this region only by hauling it from Richmond, Fredericksburg, or -Alexandria. Transportation from the latter place to Winchester cost two -dollars and a half per hundredweight. In 1797, "store" goods of all -kinds cost, in the Blue Ridge, thirty per cent more than in -Philadelphia. (La Rochefoucauld, iii, 203.) From Philadelphia the cost -was four to five dollars per hundredweight. While there appear to have -been country stores at Staunton and Winchester, over the mountains -(Chalkley's _Augusta County (Va.) Records_), the cost of freight to -those places was prohibitive of anything but the most absolute -necessities even ten years after the Constitution was adopted. - -[127] _Hist. Mag._, iii, 166; Howe, 263; also, Story, in Dillon, iii, -334. - -[128] Story, in Dillon, iii, 331-32. - -[129] _Ib._ - -[130] See Binney, in Dillon, iii, 285. - -[131] "Fauquier was then a frontier county ... far in advance of the -ordinary reach of compact population." (Story, in Dillon, iii, 331; also -see _New York Review_ (1838), iii, 333.) Even a generation later (1797), -La Rochefoucauld, writing from personal investigation, says (iii, -227-28): "There is no state so entirely destitute of all means of public -education as Virginia." - -[132] See Binney, in Dillon, iii, 285. - -[133] Story, in Dillon, iii, 330. - -[134] Marshall to Story, July 31, 1833; Story, ii, 150. - -[135] See _infra_, chaps. VII and VIII. - -[136] "A taste for reading is more prevalent [in Virginia] among the -gentlemen of the first class than in any other part of America; but the -common people are, perhaps, more ignorant than elsewhere." (La -Rochefoucauld, iii, 232.) Other earlier and later travelers confirm this -statement of this careful French observer. - -[137] Story thinks that Thomas Marshall, at this time, owned Milton, -Shakespeare, and Dryden. (Dillon, iii, 331.) This is possible. Twenty -years later, Chastellux found Milton, Addison, and Richardson in the -parlor of a New Jersey inn; but this was in the comparatively thickly -settled country adjacent to Philadelphia. (Chastellux, 159.) - -[138] Story, in Dillon, iii, 331, and Binney, in _ib._, 283; _Hist. -Mag._, iii, 166. - -[139] Lang: _History of English Literature_, 384; and see Gosse: -_History of Eighteenth Century Literature_, 131; also, Traill: _Social -England_, V, 72; Stephen: _Alexander Pope_, 62; and see Cabot to -Hamilton, Nov. 29, 1800; _Cabot_: Lodge, 299. - -[140] Binney, in Dillon, iii, 283-84; Washington's _Diary_; MS., Lib. -Cong. - -[141] Irving, i, 45; and Lodge: _Washington_, i, 59. Many years later -when he became rich, Washington acquired a good library, part of which -is now in the Boston Athenæum. But as a young and moneyless surveyor he -had no books of his own and his "book" education was limited and -shallow. - -[142] Binney, in Dillion, iii, 281-84. - -[143] Irving, i, 37, 45; and Sparks, 10. - -[144] Irving, i, 27. - -[145] Irving, i, 46. - -[146] As will appear, the Fairfax estate is closely interwoven into John -Marshall's career. (See vol. II of this work.) - -[147] For description of Greenway Court see Pecquet du Bellet, ii, 175. - -[148] Washington's _Writings_: Ford, i, footnote to 329. - -[149] For a clear but laudatory account of Lord Fairfax see Appendix No. -4 to Burnaby, 197-213. But Fairfax could be hard enough on those who -opposed him, as witness his treatment of Joist Hite. (See _infra_, chap. -V.) - -[150] When the Revolution came, however, Fairfax was heartily British. -The objection which the colony made to the title to his estate doubtless -influenced him. - -[151] Fairfax was a fair example of the moderate, as distinguished from -the radical or the reactionary. He was against both irresponsible -autocracy and unrestrained democracy. In short, he was what would now be -termed a liberal conservative (although, of course, such a phrase, -descriptive of that demarcation, did not then exist). Much attention -should be given to this unique man in tracing to their ultimate sources -the origins of John Marshall's economic, political, and social -convictions. - -[152] Sparks, 11; and Irving, i, 33. - -[153] For Fairfax's influence on Washington see Irving, i, 45; and in -general, for fair secondary accounts of Fairfax, see _ib._, 31-46; and -Sparks, 10-11. - -[154] Senator Humphrey Marshall says that Thomas Marshall "emulated" -Washington. (Humphrey Marshall, i, 345.) - -[155] See _infra_. - -[156] Bond of Thomas Marshall as Sheriff, Oct. 26, 1767; Records of -Fauquier County (Va.), Deed Book, iii, 70. Approval of bond by County -Court; Minute Book (from 1764 to 1768), 322. Marshall's bond was "to his -Majesty, George III," to secure payment to the British revenue officers -of all money collected by Marshall for the Crown. (Records of Fauquier -County (Va.), Deed Book, iii, 71.) - -[157] Bruce: _Inst._, i, 597, 600; also, ii, 408, 570-74. - -[158] Records of Fauquier County (Va.), Deed Book, ii, 42. There is a -curious record of a lease from Lord Fairfax in 1768 to John Marshall for -his life and "the natural lives of Mary his wife and Thomas Marshall his -son and every of them longest living." (Records of Fauquier County -(Va.), Deed Book, iii, 230.) John Marshall was then only thirteen years -old. The lease probably was to Thomas Marshall, the clerk of Lord -Fairfax having confused the names of father and son. - -[159] Meade, ii, 218. - -[160] In 1773 three deeds for an aggregate of two hundred and twenty -acres "for a glebe" were recorded in Fauquier County to "Thos. Marshall -& Others, Gentlemen, & Vestrymen of Leeds Parish." (Records of Fauquier -County (Va.), Deed Book, V, 401, 403, 422.) - -[161] The vestrymen were "the foremost men ... in the parish ... whether -from the point of view of intelligence, wealth or social position." -(Bruce: _Inst._, i, 62; and see Meade, i, 191.) - -[162] Bruce: _Inst._, i, 62-93; and see Eckenrode: _S.C. & S._, 13. - -[163] Bruce: _Inst._, i, 131 _et seq._ - -[164] Meade, ii, 219. Bishop Meade here makes a slight error. He says -that Mr. Thompson "lived at first in the family of Colonel Thomas -Marshall, of Oak Hill." Thomas Marshall did not become a colonel until -ten years afterward. (Heitman, 285.) And he did not move to Oak Hill -until 1773, six years later. (Paxton, 20.) - -[165] James Thompson was born in 1739. (Meade, ii, 219.) - -[166] _Ib._ - -[167] Forty years later La Rochefoucauld found that the whole family and -all visitors slept in the same room of the cabins of the back country. -(La Rochefoucauld, iv, 595-96.) - -[168] "I have not sleep'd above three nights or four in a bed, but, -after walking ... all the day, I lay down before the fire upon a little -hay, straw, fodder or bearskin ... with man, wife, and children, like a -parcel of dogs and cats; and happy is he, who gets the berth nearest the -fire." (Washington to a friend, in 1748; _Writings_: Ford, i, 7.) - -Here is another of Washington's descriptions of frontier comforts: "I -not being so good a woodsman as ye rest of my company, striped myself -very orderly and went into ye Bed, as they calld it, when to my -surprize, I found it to be nothing but a little straw matted together -without sheets or any thing else, but only one thread bear [_sic_] -blanket with double its weight of vermin such as Lice, Fleas, &c." -(Washington's _Diary_, March 15, 1747; _ib._, 2.) And see La -Rochefoucauld, iii, 175, for description of homes of farmers in the -Valley forty years later--miserable log huts "which swarmed with -children." Thomas Marshall's little house was much better than, and the -manners of the family were far superior to, those described by -Washington and La Rochefoucauld. - -[169] Meade, ii, 219. - -[170] _Ib._ Bishop Meade says that Thomas Marshall's sons were sent to -Mr. Thompson again; but Marshall himself told Justice Story that the -Scotch parson taught him when the clergyman lived at his father's house. - -[171] Meade, ii, 219. This extract of Mr. Thompson's sermon was -treasonable from the Tory point of view. See _infra_, chap. III. - -[172] Records of Fauquier County (Va.), Deed Book, V, 282. This purchase -made Thomas Marshall the owner of about two thousand acres of the best -land in Fauquier County. He had sold his Goose Creek holding in "The -Hollow." - -[173] The local legend, current to the present day, is that this house -had the first glass windows in that region, and that the bricks in the -chimney were imported from England. The importation of brick, however, -is doubtful. Very little brick was brought to Virginia from England. - -[174] Five more children of Thomas and Mary Marshall were born in this -house: Louis, 1773; Susan, 1775; Charlotte, 1777; Jane, 1779; and Nancy, -1781. (Paxton.) - -[175] This volume is now in the possession of Judge J. K. M. Norton, of -Alexandria, Va. On several leaves are printed the names of the -subscribers. Among them are Pelatiah Webster, James Wilson, Nathanael -Greene, John Adams, and others. - -[176] _Autobiography._ - -[177] Binney, in Dillon, iii, 286. - -[178] Story and Binney say that Marshall's first schooling was at -Campbell's "academy" and his second and private instruction under Mr. -Thompson. The reverse seems to have been the case. - -[179] Meade, ii, 159, and footnote to 160. - -[180] _Ib._, 161. - -[181] _Ib._ - -[182] Journal, H.B. (1761-65), 3. Thomas Marshall was seldom out of -office. Burgess, Sheriff, Vestryman, Clerk, were the promising -beginnings of his crowded office-holding career. He became Surveyor of -Fayette County, Kentucky, upon his removal to that district, and -afterwards Collector of Revenue for the District of Ohio. (Humphrey -Marshall, i, 120; and see ii, chap. V, of this work. Thomas Marshall to -Adams, April 28, 1797; MS.) In holding offices, John Marshall followed -in his father's footsteps. - -[183] Journal, H.B. (1766-69), 147 and 257. - -[184] His election was contested in the House, but decided in Marshall's -favor. (_Ib._ (1761-69), 272, 290, 291.) - -[185] _Ib._, (1773-76), 9. County Clerks were then appointed by the -Secretary of State. In some respects the Clerk of the County Court had -greater advantages than the Sheriff. (See Bruce: _Inst._, i, 588 _et -seq._) Dunmore County is now Shenandoah County. The Revolution changed -the name. When Thomas Marshall was appointed Clerk, the House of -Burgesses asked the Governor to issue a writ for a new election in -Fauquier County to fill Marshall's place as Burgess. (_Ib._ (1773-76), -9.) - -[186] _Ib._ (1766-69), 163. - -[187] _Ib._, 16, 71, 257; (1770-72), 17, 62, 123, 147, 204, 234, 251, -257, 274, 292; (1773-76), 217, 240. - -[188] Ambler, Introduction. - -[189] Ambler, 17-18. - -[190] Henry, i, 71. - -[191] _Ib._, 76-77. - -[192] Henry, i, 39-48. - -[193] Wirt, 71 _et seq._ It passed the House (Journal, H.B. (1761-65), -350); but was disapproved by the Council. (_Ib._, 356; and see Henry, i, -78.) - -[194] The "ayes" and "noes" were not recorded in the Journals of the -House; but Jefferson says, in his description of the event, which he -personally witnessed, that Henry "carried with him all the members of -the upper counties and left a minority composed merely of the -aristocracy." (Wirt, 71.) "The members, who, like himself [Henry], -represented the yeomanry of the colony, were filled with admiration and -delight." (Henry, i, 78.) - -[195] Wirt, 71. The incident, it appears, was considered closed with the -defeat of the loan-office bill. Robinson having died, nothing further -was done in the matter. For excellent condensed account see Eckenrode: -_R. V._, 16-17. - -[196] Declaratory Resolutions. - -[197] For the incredible submission and indifference of the colonies -before Patrick Henry's speech, see Henry, i, 63-67. The authorities -given in those pages are conclusive. - -[198] _Ib._, 67. - -[199] _Ib._, 80-81. - -[200] _Ib._, 82-86. - -[201] Wirt, 74-76. - -[202] Eckenrode: _R. V._, 5-6. - -[203] "The members from the upper counties invariably supported Mr. -Henry in his revolutionary measures." (Jefferson's statement to Daniel -Webster, quoted in Henry, i, 87.) - -[204] Henry, i, 86. - -[205] Henry, i, 86, and authorities there cited in the footnote. - -[206] Misquoted in Wirt (79) as "500 guineas." - -[207] Jefferson to Wirt, Aug. 14, 1814; _Works_: Ford, xi, 404. - -[208] It is most unfortunate that the "ayes" and "noes" were not kept in -the House of Burgesses. In the absence of such a record, Jefferson's -repeated testimony that the up-country members voted and worked with -Henry must be taken as conclusive of Thomas Marshall's vote. For not -only was Marshall Burgess from a frontier county, but Jefferson, at the -time he wrote to Wirt in 1814 (and gave the same account to others -later), had become very bitter against the Marshalls and constantly -attacked John Marshall whom he hated virulently. If Thomas Marshall had -voted out of his class and against Henry, so remarkable a circumstance -would surely have been mentioned by Jefferson, who never overlooked any -circumstance unfavorable to an enemy. Far more positive evidence, -however, is the fact that Washington, who was a Burgess, voted with -Henry, as his letter to Francis Dandridge, Sept. 20, 1765, shows. -(_Writings_: Ford, ii, 209.) And Thomas Marshall always acted with -Washington. - -[209] "By these resolutions, Mr. Henry took the lead out of the hands of -those who had heretofore guided the proceedings of the House." -(Jefferson to Wirt, Aug. 14, 1814; _Works_: Ford, xi, 406.) - -[210] _Proceedings_, Va. Conv., 1775, March 20, 3; July 17, 3, 5, 7. - -[211] Henry, i, 255-61; Wirt, 117-19. Except Henry's speech itself, -Wirt's summary of the arguments of the conservatives is much the best -account of the opposition to Henry's fateful resolutions. - -[212] Wirt, 142; Henry, i, 261-66. - -[213] _Ib._, 271; and Wirt, 143. - -[214] In the absence of the positive proof afforded by a record of the -"ayes" and "noes," Jefferson's testimony, Washington's vote, Thomas -Marshall's tribute to Henry, and above all, the sentiment of the -frontier county he represented, are conclusive testimony as to Thomas -Marshall's stand in this all-important legislative battle which was the -precursor of the iron conflict soon to come in which he bore so heroic a -part. (See Humphrey Marshall, i, 344.) - -[215] Washington was appointed a member of the committee provided for in -Henry's second resolution. (Henry, i, 271.) - -[216] Thomas Marshall had been ensign, lieutenant, and captain in the -militia, had taken part in the Indian wars, and was a trained soldier. -(Crozier: _Virginia Colonial Militia_, 96.) - - - - -Chapter III - -A SOLDIER OF THE REVOLUTION - - Our liberties are at stake. It is time to brighten our fire-arms - and learn to use them in the field. (Marshall to Culpeper Minute - Men, 1775.) - - Our sick naked, and well naked, our unfortunate men in captivity - naked. (Washington, 1777.) - - I have seen a regiment consisting of _thirty men_ and a company of - _one corporal_. (Von Steuben, 1778.) - - -The fighting men of the up counties lost not a minute's time. Blood had -been shed in New England; blood, they knew, must soon flow in Virginia. -At once Culpeper, Orange, and Fauquier Counties arranged to raise a -regiment of minute men with Lawrence Taliaferro of Orange as colonel, -Edward Stevens of Culpeper as lieutenant, Thomas Marshall of Fauquier as -major.[217] Out over the countryside went the word; and from mountain -cabins and huts in forest clearings, from log abodes in secluded valleys -and on primitive farms, the fighting yeomanry of northern Virginia came -forth in answer. - -In the years between Patrick Henry's two epochal appeals in 1765 and -1775, all Virginia, but particularly the back country, had been getting -ready to make answer in terms of rifle and lead. "No man should scruple, -or hesitate a moment, to use arms," wrote Washington in 1769.[218] -Thomas Marshall's minister, Mr. Thompson, preached militant -preparation; Parliament had deprived the colonists of "their just and -legal rights" by acts which were "destructive of their liberties," -thundered the parson; it had "overawed the inhabitants by British -troops," loaded "great hardships" upon the people, and "reduced the poor -to great want." The preacher exhorted his flock "as men and Christians" -to help "supply the country with arms and ammunition," and referred his -hearers, for specific information, to "the committee of this -county,"[219] whose head undoubtedly was their Burgess and leading -vestryman of the parish, Thomas Marshall. - -When news of Concord and Lexington finally trickled through to upper -Virginia, it found the men of her hills and mountains in grim readiness; -and when, soon after, Henry's flaming words came to them, they were -ready and eager to make those words good with their lives. John -Marshall, of course, was one of the band of youths who had agreed to -make up a company if trouble came. In May, 1775, these young -frontiersmen were called together. Their captain did not come, and -Marshall was appointed lieutenant, "instead of a better," as he modestly -told his comrades. But, for his years, "a better" could not have been -found; since 1773 John Marshall had received careful military -instruction from his father.[220] Indeed, during the two years before -his company took the field in actual warfare, the youth had devoted most -of his time to preparing himself, by study and practice, for military -service.[221] So these embryo warriors gathered about their leader to -be told what to do.[222] - -Here we get the first glimpse of John Marshall's power over men. "He had -come," the young officer informed his comrades of the backwoods, "to -meet them as fellow soldiers, who were likely to be called on to defend -their country." Their own "rights and liberties" were at stake. Their -brothers in New England had fought and beaten the British; now "it is -time to brighten our fire-arms and learn to use them in the field." He -would show them how to do this. So the boys fell into line, and John -Marshall, bringing his own gun to his shoulder, instructed them in the -manual of arms. He first gave the words of command slowly and distinctly -and then illustrated the movements with his own rifle so that every man -of the company might clearly understand what each order meant and how to -execute it. He then put the company through the drill.[223] - -On this muster field we learn how John Marshall looked in his nineteenth -year. He was very tall, six feet at least, slender and erect. His -complexion was dark, with a faint tinge of red. His face was -round--"nearly a circle." His forehead was straight and low, and thick, -strong, "raven black" hair covered his head. Intense eyes "dark to -blackness,"[224] of compelling power, pierced the beholder while they -reassured him by the good nature which shone from them. "He wore a -purple or pale blue hunting-shirt, and trousers of the same material -fringed with white."[225] - -At this point, too, we first learn of his bent for oratory. What his -father told him about the debates in the House of Burgesses, the -speeches of Wythe and Lee and Randolph, and above all, Patrick Henry; -what he had dreamed and perhaps practiced in the silent forests and -vacant fields, here now bore public fruit. When he thought that he had -drilled his company enough for the time being, Marshall told them to -fall out, and, if they wished to hear more about the war, to gather -around him and he would make them a speech.[226] And make them a speech -he did. Before his men the youthful lieutenant stood, in his hand his -"round black hat mounted with a buck's tail for a cockade," and spoke to -that company of country boys of the justice of their cause and of those -larger things in life for which all true men are glad to die. - -"For something like an hour" he spoke, his round face glowing, the -dormant lightning of his eye for the time unloosed. Lively words they -were, we may be sure; for John Marshall was as ardent a patriot as the -colonies could produce. He had learned the elementary truths of liberty -in the school of the frontier; his soul was on fire with the burning -words of Henry; and he poured forth his immature eloquence not to a -company of peaceful theorists, but to a group of youths ready for the -field. Its premises were freedom and independence; its conclusion was -action. It was a battle speech.[227] This fact is very important to an -understanding of John Marshall's character, and indeed of the blood that -flowed in his veins. For, as we shall find, he was always on the firing -line; the Marshall blood was fighting blood.[228] - -But it was not all labor of drill and toil of discipline, heroics of -patriotic speech, or solemn preachments about duty, for the youths of -John Marshall's company. If he was the most earnest, he was also, it -seems, the jolliest person in the whole band; and this deserves especial -note, for his humor was a quality which served not only the young -soldier himself, but the cause for which he fought almost as well as his -valor itself, in the martial years into which he was entering. Indeed -this capacity for leavening the dough of serious purpose with the yeast -of humor and diversion made John Marshall's entire personal life -wholesome and nutritious. Jokes and fun were a part of him, as we shall -see, whether in the army, at the bar, or on the bench. - -So when, the business of the day disposed of, Lieutenant Marshall -challenged his sure-eyed, strong-limbed, swift-footed companions to a -game of quoits, or to run a race, or to jump a pole, we find him -practicing that sport and comradeship which, luckily for himself and his -country, he never outgrew. Pitch quoits, then, these would-be soldiers -did, and coursed their races, and vaulted high in their running -jumps.[229] Faster than any of them could their commander run, with his -long legs out-going and his powerful lungs out-winding the best of them. -He could jump higher, too, than anybody else; and from this -accomplishment he got his soldier nickname "Silver Heels" in -Washington's army a year later.[230] - -The final muster of the Culpeper Minute Men was in "Major Clayton's old -field" hard by the county seat[231] on September 1, 1775.[232] They were -clad in the uniform of the frontier, which indeed was little different -from their daily apparel. Fringed trousers often of deerskins, "strong -brown linen hunting-shirts dyed with leaves, ... buck-tails in each hat, -and a leather belt about the shoulders, with tomahawk and -scalping-knife" made up their warlike costume.[233] By some -preconcert,--an order perhaps from one of the three superior officers -who had poetic as well as fighting blood in him,--the mothers and wives -of this wilderness soldiery had worked on the breast of each -hunting-shirt in large white letters the words "Liberty or Death,"[234] -with which Patrick Henry had trumpeted the purpose of hitherto -inarticulate America. - -Early in the autumn of 1775 came the expected call. Not long had the -"shirt men,"[235] as they were styled, been drilling near the -court-house of Culpeper County when an "express" came from Patrick -Henry.[236] This was a rider from Williamsburg, mounting swift relays as -he went, sometimes over the rough, miry, and hazardous roads, but mostly -by the bridle paths which then were Virginia's principal highways of -land travel. The "express" told of the threatening preparations of Lord -Dunmore, then Royal Governor of Virginia, and bore Patrick Henry's -command to march at once for the scene of action a hundred miles to the -south. - -Instantly the Culpeper Minute Men were on the move. "We marched -immediately," wrote one of them, "and in a few days were in -Williamsburg." News of their coming went before them; and when the -better-settled districts were reached, the inhabitants were in terror of -them, for the Culpeper Minute Men were considered as "savage -backwoodsmen" by the people of these older communities.[237] And indeed -they must have looked the part, striding along armed to the teeth with -the alarming weapons of the frontier,[238] clad in the rough but -picturesque war costume of the backwoods, their long hair falling -behind, untied and unqueued. - -When they reached Williamsburg half of the minute men were discharged, -because they were not needed;[239] but the other half, marching under -Colonel Woodford, met and beat the enemy at Great Bridge, in the first -fight of the Revolution in Virginia, the first armed conflict with -British soldiers in the colonies since Bunker Hill. In this small but -bloody battle, Thomas Marshall and his son took part.[240] - -The country around Norfolk swarmed with Tories. Governor Dunmore had -established martial law, proclaimed freedom of slaves, and summoned to -the Royal standard everybody capable of bearing arms. He was busy -fortifying Norfolk and mounting cannon upon the entrenchments. Hundreds -of the newly emancipated negroes were laboring upon these -fortifications. To keep back the patriots until this military work -should be finished, the Governor, with a force of British regulars and -all the fighting men whom he could gather, took up an almost impregnable -position near Great Bridge, about twenty miles from Norfolk, "in a small -fort on an oasis surrounded by a morass, not far from the Dismal Swamp, -accessible on either side by a long causeway." Here Dunmore and the -Loyalists awaited the Americans.[241] - -When the latter came up they made their camp "within gunshot of this -post, in mud and mire, in a village at the southern end of the -causeway." Across this the patriot volunteers threw a breastwork. But, -having no cannon, they did not attack the British position. If only -Dunmore would take the offensive, the Americans felt that they would -win. Legend has it that through a stratagem of Thomas Marshall, the -British assault was brought on. He instructed his servant to pretend to -desert and mislead the Governor as to the numbers opposing him. -Accordingly, Marshall's decoy sought the enemy's lines and told Dunmore -that the insurgents numbered not more than three hundred. The Governor -then ordered the British to charge and take the Virginians, "or die in -the attempt."[242] - -"Between daybreak and sunrise," Captain Fordyce, leading his grenadiers -six abreast, swept across the causeway upon the American breastworks. -Marshall himself tells us of the fight. The shots of the sentinels -roused the little camp and "the bravest ... rushed to the works," firing -at will, to meet the British onset. The gallant Fordyce "fell dead -within a few steps of the breastwork.... Every grenadier ... was killed -or wounded; while the Americans did not lose a single man." Full one -hundred of the British force laid down their lives that bloody December -morning, among them four of the King's officers. Small as was this -affair,--which was called "The Little Bunker Hill,"--it was more -terrible than most military conflicts in loss of life in proportion to -the numbers engaged.[243] - -This was John Marshall's first lesson[244] in warfare upon the field of -battle. Also, the incidents of Great Bridge, and what went before and -came immediately after, gave the fledgling soldier his earliest -knowledge of that bickering and conflict of authority that for the next -four years he was to witness and experience in far more shocking and -dangerous guise.[245] - -Within a few months from the time he was haranguing his youthful -companions in "Major Clayton's old field" in Culpeper County, John -Marshall learned, in terms of blood and death and in the still more -forbidding aspects of jealousy and dissension among the patriots -themselves, that freedom and independence were not to be wooed and won -merely by high-pitched enthusiasm or fervid speech. The young soldier in -this brief time saw a flash of the great truth that liberty can be made -a reality and then possessed only by men who are strong, courageous, -unselfish, and wise enough to act unitedly as well as to fight bravely. -He began to discern, though vaguely as yet, the supreme need of the -organization of democracy. - -After the victory at Great Bridge, Marshall, with the Culpeper Minute -Men, marched to Norfolk, where he witnessed the "American soldiers -frequently amuse themselves by firing" into Dunmore's vessels in the -harbor; saw the exasperated Governor imprudently retaliate by setting -the town on fire; and beheld for "several weeks" the burning of -Virginia's metropolis.[246] Marshall's battalion then marched to -Suffolk, and was discharged in March, 1776.[247] - -With this experience of what war meant, John Marshall could have -returned to the safety of Oak Hill and have spent, at that pleasant -fireside, the red years that were to follow, as indeed so many in the -colonies who then and after merely prated of liberty, actually did. But -it was not in the Marshall nature to support a cause with lip service -only. Father and son chose the sterner part; and John Marshall was now -about to be schooled for four years by grim instructors in the knowledge -that strong and orderly government is necessary to effective liberty. He -was to learn, in a hard and bitter school, the danger of provincialism -and the value of Nationality. - -Not for long did he tarry at the Fauquier County home; and not an -instant did the father linger there. Thomas Marshall, while still -serving with his command at Great Bridge, was appointed by the -Legislature major of the Third Virginia Regiment; and at once entered -the Continental service;[248] on July 30, 1776, four months after the -Culpeper Minute Men, their work finished, had been disbanded by the new -State, his son was commissioned lieutenant in the same regiment. The -fringed hunting-shirt and leggings, the buck-tail headgear, -scalping-knife, and tomahawk of the backwoods warrior now gave place to -the buff and blue uniform, the three-cornered hat,[249] the sword, and -the pistol of the Continental officer; and Major Thomas Marshall and his -son, Lieutenant John Marshall, marched away to the north to join -Washington, and under him to fight and suffer through four black and -heart-breaking years of the Revolution. - -It is needful, here, to get clearly in our minds the state of the -American army at this time. What particular year of the Revolution was -darkest up almost to the victorious end, it is hard to say. Studying -each year separately one historian will conclude that 1776 sounded the -depths of gloom; another plumbs still greater despair at Valley Forge; -still another will prove that the bottom was not reached until '79 or -'80. And all of them appear to be right.[250] - -Even as early as January, 1776, when the war was new, and enthusiasm -still warm, Washington wrote to the President of Congress, certain -States having paid no attention to his application for arms: "I have, as -the last expedient, sent one or two officers from each regiment into the -country, with money to try if they can buy."[251] A little later he -writes: "My situation has been such, that I have been obliged to use art -to conceal it from my own officers."[252] - -Congress even placed some of Washington's little army under the -direction of the Committee of Safety of New York; and Washington thus -wrote to that committee: "I should be glad to know how far it is -conceived that my powers over them [the soldiers] extend, or whether I -have any at all. Sure I am that they cannot be subjected to the -direction of both"[253] (the committee and himself). - -In September the Commander-in-Chief wrote to the President of Congress -that the terms of enlistment of a large portion of the army were about -to expire, and that it was direful work "to be forming armies -constantly, and to be left by troops just when they begin to deserve the -name, or perhaps at a moment when an important blow is expected."[254] - -Four days later Washington again told Congress, "beyond the possibility -of doubt, ... unless some speedy and effectual measures are adopted by -Congress, our cause will be lost."[255] On December 1, 1776, the army -was "greatly reduced by the departure of the Maryland _Flying Camp_ men, -and by sundry other causes."[256] A little afterwards General Greene -wrote to Governor Cooke [of Rhode Island] that "two brigades left us at -Brunswick, notwithstanding the enemy were within two hours' march and -coming on."[257] - -Thirteen days before the Christmas night that Washington crossed the -Delaware and struck the British at Trenton, the distressed American -commander found that "our little handful is daily decreasing by sickness -and other causes."[258] And the very day before that brilliant exploit, -Washington was compelled to report that "but very few of the men have -[re]enlisted" because of "their wishes to return home, the -nonappointment of officers in some instances, the turning out of good -and appointing of bad in others, and the incomplete or rather no -arrangement of them, a work unhappily committed to the management of -their States; nor have I the most distant prospect of retaining them ... -notwithstanding the most pressing solicitations and the obvious -necessity for it." Washington informed Reed that he was left with only -"fourteen to fifteen hundred effective men. This handful and such -militia as may choose to join me will then compose our army."[259] Such -was American patriotic efficiency, as exhibited by "State Sovereignty," -the day before the dramatic crossing of the Delaware. - -A month earlier the general of this assemblage of shreds and patches had -been forced to beg the various States for militia in order to get in "a -number of men, if possible, to keep up the appearance of our army."[260] -And he writes to his brother Augustine of his grief and surprise to find -"the different States so slow and inattentive.... In ten days from this -date there will not be above two thousand men, if that number, of the -fixed established regiments, ... to oppose Howe's whole army."[261] - -Throughout the war, the neglect and ineffectiveness of the States, even -more than the humiliating powerlessness of Congress, time and again all -but lost the American cause. The State militia came and went almost at -will. "The impulse for going home was so irresistible, that it answered -no purpose to oppose it. Though I would not discharge them," testifies -Washington, "I have been obliged to acquiesce, and it affords one more -melancholy proof, how delusive such dependencies [State controlled -troops] are."[262] - -"The Dependence, which the Congress have placed upon the militia," the -distracted general complains to his brother, "has already greatly -injured, and I fear will totally ruin our cause. Being subject to no -controul themselves, they introduce disorder among the troops, whom you -have attempted to discipline, while the change in their living brings on -sickness; this makes them Impatient to get home, which spreads -universally, and introduces abominable desertions. In short, it is not -in the power of words to describe the task I have to act."[263] - -Nor was this the worst. Washington thus pours out his soul to his -nephew: "Great bodies of militia in pay that never were in camp; ... -immense quantities of provisions drawn by men that never rendered ... -one hour's service ... every kind of military [discipline] destroyed by -them.... They [the militia] come without any conveniences and soon -return. I discharged a regiment the other day that had in it fourteen -rank and file fit for duty only.... The subject ... is not a fit one to -be publicly known or discussed.... I am wearied to death all day ... at -the conduct of the militia, whose behavior and want of discipline has -done great injury to the other troops, who never had officers, except in -a few instances, worth the bread they eat."[264] - -Conditions did not improve in the following year, for we find Washington -again writing to his brother of "militia, who are here today and gone -tomorrow--whose way, like the ways of [Pr]ovidence, are almost -inscrutable."[265] Baron von Steuben testifies thus: "The eternal ebb -and flow of men ... who went and came every day, rendered it impossible -to have either a regiment or company complete.... I have seen a regiment -consisting of _thirty men_ and a company of _one corporal_."[266] Even -Thomas Paine, the arch-enemy of anything resembling a regular or -"standing" army, finally declared that militia "will not do for a long -campaign."[267] Marshall thus describes the predicament in which -Washington was placed by the inconstancy of this will-o'-the-wisp -soldiery: "He was often abandoned by bodies of militia, before their -places were filled by others.... The soldiers carried off arms and -blankets."[268] - -Bad as the militia were,[269] the States did not keep up even this -happy-go-lucky branch of the army. "It is a matter of astonishment," -savagely wrote Washington to the President of Pennsylvania, two months -before Valley Forge, "to every part of the continent, to hear that -Pennsylvania, the most opulent and populous of all the States, has but -twelve hundred militia in the field, at a time when the enemy are -endeavoring to make themselves completely masters of, and to fix their -winter quarters in, her capital."[270] Even in the Continental line, it -appears, Pennsylvania's quota had "never been above one third full; and -now many of them are far below even that."[271] - -Washington's wrath at Pennsylvania fairly blazed at this time, and the -next day he wrote to Augustine Washington that "this State acts most -infamously, the People of it, I mean, as we derive little or no -assistance from them.... They are in a manner, totally disaffected or in -a kind of Lethargy."[272] - -The head of the American forces was not the only patriot officer to -complain. "The Pennsylvania Associators [militia] ... are deserting ... -notwithstanding the most spirited exertions of their officers," reported -General Livingston in the midsummer of 1776.[273] General Lincoln and -the Massachusetts Committee tried hard to keep the militia of the Bay -State from going home; but, moaned Lee, "whether they will succeed, -Heaven only knows."[274] - -General Sullivan determined to quit the service because of abuse and -ill-treatment.[275] For the same reason Schuyler proposed to -resign.[276] These were not examples of pique; they denoted a general -sentiment among officers who, in addition to their sufferings, beheld -their future through none too darkened glasses. They "not only have the -Mortification to See every thing live except themselves," wrote one -minor officer in 1778, "but they see their private fortune wasting away -to make fat those very Miscreants [speculators] ... they See their -Country ... refuse to make any future provision for them, or even to -give them the Necessary Supplies."[277] - -Thousands of the Continentals were often practically naked; Chastellux -found several hundred in an invalid camp, not because they were ill, but -because "they were not covered even with rags."[278] "Our sick naked, -and well naked, our unfortunate men in captivity naked"! wailed -Washington in 1777.[279] Two days before Christmas of that year he -informed Congress that, of the force then under his immediate command, -nearly three thousand were "barefoot and otherwise naked."[280] Sickness -was general and appalling. Smallpox raged throughout the army even from -the first.[281] "The Regimental Surgeons are immediately to make -returns ... of all the men in their Regiments, who have not had the -small Pox,"[282] read the orders of the day just after New Year's Day, -in 1778. - -Six years after Concord and Lexington, three hundred American soldiers, -in a body, wished to join the British.[283] Stern measures were taken to -prevent desertion and dishonesty and even to enforce the most ordinary -duties of soldiers. "In the afternoon three of our reg^t were -flogged;--2 of them received one hundred lashes apiece for attempting to -desert; the other received 80 for enlisting twice and taking two -bounties,"[284] Wild coolly enters in his diary. And again: "This -afternoon one of our men was hanged on the grand parade for attempting -to desert to the enemy";[285] and "at 6 ock P.M. a soldier of Col. -Gimatts Battalion was hanged." - -Sleeping on duty meant "Twenty Lashes on ... [the] bare back" of the -careless sentry.[286] A soldier convicted of "getting drunk & losing his -Arms" was "Sentenc'd to receive 100 Lashes on his bare back, & pay for -his Arms lost."[287] A man who, in action, "turns his back on the Enemy" -was ordered to be "instantly put ... to Death" by the officers.[288] At -Yorktown in May, 1781, Wayne ordered a platoon to fire on twelve -soldiers who were persuading their comrades not to march; six were -killed and one wounded, who was, by Wayne's command, enforced by a -cocked pistol, then finished with the bayonet thrust into the prostrate -soldier by a comrade.[289] - -Such was the rough handling practiced in the scanty and ill-treated army -of individualists which Washington made shift to rally to the patriot -colors.[290] It was not an encouraging omen. But blacker still was the -disorganizing effect of local control of the various "State Lines" which -the pompous authority of the newborn "sovereign and independent" -Commonwealths asserted.[291] - -Into this desperate confusion came the young Virginia lieutenant. Was -this the manner of liberty? Was this the way a people fighting for their -freedom confronted their enemy? The dreams he had dreamed, the visions -he had seen back in his Virginia mountains were clad in glories as -enchanting as the splendors of their tree-clad summits at break of -day--dreams and visions for which strong men should be glad of the -privilege of dying if thereby they might be won as realities for all the -people. And indeed at this time, and in the even deadlier days that -followed, young John Marshall found strong men by his side willing to -die and to go through worse than death to make their great dream come -true. - -But why thus decrepit, the organization called the American army? Why -this want of food even for such of the soldiers as were willing and -eager to fight for their country? Why this scanty supply of arms? Why -this avoidable sickness, this needless suffering, this frightful waste? -What was the matter? Something surely was at fault. It must be in the -power that assumed to direct the patriot army. But whence came that -power? From Congress? No. Congress had no power; after a while, it did -not even have influence. From the States? Yes; that was its -source--there was plenty of power in the States. - -But what kind of power, and how displayed? One State did one thing; -another State did another thing.[292] One State clothed its troops well; -another sent no supplies at all.[293] One regiment of Maryland militia -had no shirts and the men wrapped blankets about their bare bodies.[294] -One day State troops would come into camp, and the next day leave. How -could war be conducted, how could battles be fought and won, through -such freakish, uncertain power as that? - -But how could this vaunted liberty, which orators had proclaimed and -which Lieutenant Marshall himself had lauded to his frontier companions -in arms, be achieved except by a well-organized army, equipped, -supplied, and directed by a competent central Government? This was the -talk common among the soldiers of the Continental establishment in which -John Marshall was a lieutenant. In less than two years after he entered -the regular service, even officers, driven to madness and despair by the -pusillanimous weakness of Congress, openly denounced that body; and the -soldiers themselves, who saw their wounds and sufferings coming to -naught, cursed that sham and mockery which the jealousy and shallowness -of State provincialism had set up in place of a National -Government.[295] - -All through the latter half of 1776, Lieutenant Marshall of the Third -Virginia Regiment marched, suffered, retreated and advanced, and -performed his duties without complaint. He did more. At this time, when, -to keep up the sinking spirits of the men was almost as important as was -ammunition, young Marshall was the soul of good humor and of cheer; and -we shall find him in a few months heartening his starving and freezing -comrades at Valley Forge with quip and jest, a center from which -radiated good temper and a hopeful and happy warmth. When in camp -Marshall was always for some game or sport, which he played with -infinite zest. He was the best quoit-thrower in the regiment. His long -legs left the others behind in foot-races or jumping contests. - -So well did he perform his work, so highly did he impress his superior -officers, that, early in December, 1776, he was promoted to be -captain-lieutenant, to rank from July 31, and transferred to the -Fifteenth Virginia Line.[296] Thus he missed the glory of being one of -that immortal company which on Christmas night, 1776, crossed the -Delaware with Washington and fell upon the British at Trenton. His -father, Major Thomas Marshall, shared in that renown;[297] but the days -ahead held for John Marshall his share of fighting in actual battle. - -Sick, ill-fed, dirty, and ragged, but with a steady nucleus of regular -troops as devoted to their great commander as they were disgusted with -the hybrid arrangement between the States and Congress, Washington's -army worried along. Two months before the battle of the Brandywine, the -American General informed the Committee of Congress that "no army was -ever worse supplied than ours ... our Soldiers, the greatest part of -last Campaign, and the whole of this, have scarcely tasted any kind of -Vegetables; had but little salt and Vinegar." He told of the "many -putrid diseases incident to the Army, and the lamentable mortality," -which this neglect of soldiers in the field had caused. "Soap," says he, -"is another article in great demand," but not to be had. He adds, -sarcastically: "A soldier's pay will not enable him to purchase [soap] -by which his ... consequent dirtiness adds not a little to the disease -of the Army."[298] - -Such was the army of which John Marshall was a part when it prepared to -meet the well-fed, properly clad, adequately equipped British veterans -under Howe who had invaded Pennsylvania. Even with such a force -Washington felt it necessary to make an impression on disaffected[299] -Philadelphia, and, for that purpose, marched through the city on his way -to confront the enemy. For it was generally believed that the American -army was as small in numbers[300] as it was wretched in equipment. A -parade of eleven thousand men[301] through the Tory-infested metropolis -would, Washington hoped, hearten patriot sympathizers and encourage -Congress. He took pains that his troops should make the best appearance -possible. Arms were scoured and the men wore sprigs of green in their -headgear. Among the orders for the march through the seat of government -it was directed: "If any Sold^r. shall dare to quit his ranks He shall -receive 39 Lashes at the first halting place afterwards.... Not a -Woman[302] belonging to the Army is to be seen with the troops on their -March through the City."[303] - -The Americans soon came in contact with the enemy and harassed him as -much as possible. Many of Washington's men had no guns. Although fewer -militia came to his aid than Congress had called for, testifies -Marshall, yet "more appeared than could be armed. Those nearest danger -were, as usual, most slow in assembling."[304] - -Upon Wayne's suggestion, Washington formed "a corps of light infantry -consisting of nine officers, eight sergeants, and a hundred rank and -file, from each brigade" and placed them under the command of General -Maxwell who had acquired a reputation as a hard fighter.[305] Among -these picked officers was Captain-Lieutenant John Marshall. Maxwell's -command was thrown forward to Iron Hill. "A choice body of men" was -detailed from this select light infantry and, during the night, was -posted on the road along which it was believed one column of the British -army would advance. The small body of Americans had no artillery and its -only purpose was to annoy the enemy and retard his progress. The British -under Cornwallis attacked as soon as they discovered Maxwell's troops. -The Americans quickly were forced to retreat, having lost forty killed -and wounded. Only three of the British were killed and but nineteen were -wounded.[306] - -This action was the first engagement in which Marshall took part after -the battle of Great Bridge. It is important only as fixing the command -to which he was assigned. Marshall told Justice Story that he was in the -Iron Hill fight;[307] and it is certain, therefore, that he was in -Maxwell's light infantry and one of the little band picked from that -body of choice troops, for the perilous and discouraging task of -checking the oncoming British thousands. - -The American army retreated to the Brandywine, where on the 9th of -September Washington stationed all his forces except the light infantry -on the left of the river. The position was skillfully chosen, but vague -and conflicting reports[308] of the movement of the British finally -resulted in American disaster. - -The light infantry was posted among the hills on the right of the stream -along the road leading to Chadd's Ford, in order to skirmish with the -British when they approached, and, if possible, prevent them from -crossing the river. But the enemy, without much effort, drove the -Americans across the Brandywine, neither side suffering much loss.[309] - -Washington now made his final dispositions for battle. The command to -which Marshall belonged, together with other detachments under the -general direction of Anthony Wayne, were placed opposite the British at -Chadd's Ford. Small parties of selected men crossed over and attacked -the British on the other side of the stream. In one of these skirmishes -the Americans "killed a British captain with ten or fifteen privates, -drove them out of the wood and were on the point of taking a field -piece." But large numbers of the enemy hurried forward and again the -Americans were thrown across the river. Marshall was in this party.[310] - -Thomas Marshall, now colonel,[311] held the advanced position under -Sullivan at the right; and his regiment did the hardest fighting and -suffered the heaviest losses on that unhappy day. When Cornwallis, in -greatly superior numbers, suddenly poured down upon Sullivan's division, -he all but surprised the Continentals and drove most of them flying -before him;[312] but Colonel Marshall and his Virginians refused to be -stampeded. That regiment "maintained its position without losing an -inch of ground until both its flanks were turned, its ammunition nearly -expended, and more than half the officers and one third of the soldiers -were killed and wounded."[313] Colonel Marshall had two horses shot -under him. But, cut to pieces as they were, no panic appeared in this -superb Virginia command and they "retired in good order."[314] - -While Thomas Marshall and his Third Virginia Line were thus checking -Cornwallis's assault on the right, the British charged, in dense masses, -across the Brandywine, at Chadd's Ford, upon Wayne's division, to which -Captain-Lieutenant John Marshall had been assigned. The Americans made a -show of resistance, but, learning of the rout of their right wing, -quickly gave way.[315] - -"Nearly six hundred British ... were killed or wounded; and the -Americans lost eleven pieces of artillery and above a thousand men, of -whom the third part were prisoners," according to the British -statement.[316] And by their own account the Americans lost three -hundred killed, six hundred wounded, and between three and four hundred -prisoners.[317] - -Both British and American narratives agree that the conduct of the -Continental troops at Brandywine was most unequal in stanchness, -discipline, and, courage. John Marshall himself wrote: "As must ever be -the case in new-raised armies, unused to danger and from which -undeserving officers have not been expelled, their conduct was not -uniform. Some regiments, especially those which had served the preceding -campaign, maintained their ground with the firmness and intrepidity of -veterans, while others gave way as soon as they were pressed."[318] - -But the inefficiency of the American equipment gave some excuse for the -fright that seized upon so many of them. For, testifies Marshall, "many -of their muskets were scarcely fit for service; and being of unequal -caliber, their cartridges could not be so well fitted, and consequently, -their fire could not do as much execution as that of the enemy. This -radical defect was felt in all the operations of the army."[319] - -So ended the battle of the Brandywine, the third formal armed conflict -in which John Marshall took part. He had been in skirmish after -skirmish, and in all of them had shown the characteristic Marshall -coolness and courage, which both father and son exhibited in such -striking fashion on this September day on the field where Lafayette -fell wounded, and where the patriot forces reeled back under the all -but fatal blows of the well-directed British regiments.[320] - -It is small wonder that the Americans were beaten in the battle of the -Brandywine; indeed, the wonder is that the British did not follow up -their victory and entirely wipe out the opposing patriots. But it is -astonishing that the American army kept up heart. They were even "in -good spirits" as Washington got them in hand and directed their -retreat.[321] - -They were pretty well scattered, however, and many small parties and -numerous stragglers were left behind. Maxwell's men, among whom was John -Marshall, were stationed at Chester as "a rallying point" for the -fragments which otherwise would disperse or be captured. Much -maneuvering followed by both British and Americans. At sight of a -detachment of the enemy approaching Wilmington, the Delaware militia -"dispersed themselves," says Marshall.[322] Soon the two armies again -faced one another. Marshall thus describes the situation: "The advanced -parties had met, and were beginning to skirmish, when they were -separated by a heavy rain, which, becoming more and more violent, -rendered the retreat of the Americans a measure of absolute -necessity."[323] - -Through a cold and blinding downpour, over roads deep with mud, -Captain-Lieutenant Marshall marched with his retreating comrades. All -day they struggled forward, and nearly all night. They had no time to -eat and little or no food, even if they had had the time. Before the -break of a gray, cold, rainy September dawn, a halt was called, and an -examination made of arms and ammunition. "Scarcely a musket in a -regiment could be discharged," Marshall records, "and scarcely one -cartridge in a box was fit for use," although "forty rounds per man had -just been drawn"--this because the cartridge boxes had been ill-made and -of improper material. - -Gun locks were loose, declares Marshall, because flimsily put on; the -muskets were scarcely better than clubs. Hardly any of the soldiers had -bayonets.[324] "Never" had the patriot army been "in such imminent -peril," he asserts--and all because of the inefficiency or worse of the -method of supplies. Well might Washington's dilapidated troops thank -Providence for the bitter weather that drenched through and through both -officers and men and soaked their ammunition, for "the extreme severity -of the weather had entirely stopped the British army."[325] - -Yet Washington was determined to block the British march on -Philadelphia. He made shift to secure some fresh ammunition[326] and -twice moved his army to get in front of the enemy or, failing in that, -"to keep pace with them."[327] To check their too rapid advance -Washington detached the troops under Wayne, among whom was John -Marshall.[328] They found the "country was so extensively disaffected -that Sir William Howe received accurate accounts of his [Wayne's] -position and of his force. Major-General Grey was detached to surprise -him [Wayne] and effectually accomplished his purpose." At eleven o'clock -at night Grey drove in Wayne's pickets with charged bayonets, and in a -desperate midnight encounter killed and wounded one hundred and fifty of -his men.[329] General Smallwood, who was to have supported Wayne, was -less than a mile away, but his militia, who, writes Marshall, "thought -only of their own safety, having fallen in with a party returning from -the pursuit of Wayne, fled in confusion with the loss of only one -man."[330] - -Another example, this, before John Marshall's eyes, of the unreliability -of State-controlled troops;[331] one more paragraph in the chapter of -fatal inefficiency of the so-called Government of the so-called United -States. Day by day, week by week, month by month, year by year, these -object lessons were witnessed by the young Virginia officer. They made -a lifelong impression upon him and had an immediate effect. More and -more he came to depend on Washington, as indeed the whole army did also, -for all things which should have come from the Government itself. - -Once again the American commander sought to intercept the British, but -they escaped "by a variety of perplexing maneuvers," writes Washington, -"thro' a Country from which I could not derive the least intelligence -(being to a man disaffected)" and "marched immediately toward -Philadelphia."[332] For the moment Washington could not follow, -although, declares Marshall, "public opinion" was demanding and Congress -insisting that one more blow be struck to save Philadelphia.[333] His -forces were not yet united; his troops utterly exhausted. - -Marching through heavy mud, wading streams, drenched by torrential -rains, sleeping on the sodden ground "without tents ... without shoes -or ... clothes ... without fire ... without food,"[334] to use -Marshall's striking language, the Americans were in no condition to -fight the superior forces of the well-found British. "At least one -thousand men are bare-footed and have performed the marches in that -condition," Washington informed the impatient Congress.[335] He did his -utmost; that brilliant officer, Alexander Hamilton, was never so -efficient; but nearly all that could be accomplished was to remove the -military stores at Philadelphia up the Delaware farther from the -approaching British, but also farther from the American army. -Philadelphia itself "seemed asleep, or dead, and the whole State scarce -alive. Maryland and Delaware the same," wrote John Adams in his -diary.[336] - -So the British occupied the Capital, placing most of their forces about -Germantown. Congress, frightened and complaining, fled to York. The -members of that august body, even before the British drove them from -their cozy quarters, felt that "the prospect is chilling on every side; -gloomy, dark, melancholy and dispiriting."[337] Would Washington never -strike? Their impatience was to be relieved. The American commander had, -by some miracle, procured munitions and put the muskets of his troops in -a sort of serviceable order; and he felt that a surprise upon Germantown -might succeed. He planned his attack admirably, as the British -afterwards conceded.[338] In the twilight of a chilling October day, -Washington gave orders to begin the advance. - -Throughout the night the army marched, and in the early morning[339] the -three divisions into which the American force was divided threw -themselves upon the British within brief intervals of time. All went -well at first. Within about half an hour after Sullivan and Wayne had -engaged the British left wing, the American left wing, to which John -Marshall was now attached,[340] attacked the front of the British right -wing, driving that part of the enemy from the ground. With battle shouts -Marshall and his comrades under General Woodford charged the retreating -British. Then it was that a small force of the enemy took possession of -the Chew House and poured a murderous hail of lead into the huzzaing -American ranks. This saved the day for the Royal force and turned an -American victory into defeat.[341] - -It was a dramatic struggle in which John Marshall that day took part. -Fighting desperately beside them, he saw his comrades fall in heaps -around him as they strove to take the fiercely defended stone house of -the Tory Judge. A fog came up so thick that the various divisions could -see but a little way before them. The dun smoke from burning hay and -fields of stubble, to which the British had set fire, made thicker the -murk until the Americans fighting from three different points could not -tell friend from foe.[342] For a while their fire was directed only by -the flash from what they thought must be the guns of the enemy.[343] - -The rattle of musketry and roar of cannon was like "the crackling of -thorns under a pot, and incessant peals of thunder," wrote an American -officer in an attempt to describe the battle in a letter to his -relatives at home.[344] Through it all, the Americans kept up their -cheering until, as they fought, the defeat was plain to the most -audacious of them; and retreat, with which they had grown so familiar, -once more began. For nine miles the British pursued them, the road -stained with blood from the beaten patriots.[345] Nearly a thousand of -Washington's soldiers were killed or wounded, and over four hundred were -made prisoners on that ill-fated day, while the British loss was less -than half these numbers.[346] - -Two months of service followed, as hard as the many gone before with -which Fate had blackened the calendar of the patriot cause. Washington -was frantically urged to "storm" Philadelphia: Congress wished it; a -"torrent of public opinion" demanded it; even some of Washington's -officers were carried off their feet and advised "the mad enterprise," -to use Marshall's warm description of the pressure upon his -commander.[347] The depreciation of the Continental paper money, the -increasing disaffection of the people, the desperate plight of American -fortunes, were advanced as reasons for a "grand effort" to remedy the -ruinous situation. Washington was immovable, and his best officers -sustained him. Risking his army's destruction was not the way to stop -depreciation of the currency, said Washington; its value had fallen for -want of taxes to sustain it and could be raised only by their levy.[348] -And "the corruption and defection of the people, and their unwillingness -to serve in the army of the United States, were evils which would be -very greatly increased by an unsuccessful attempt on Philadelphia."[349] - -So black grew American prospects that secret sympathizers with the -British became open in their advocacy of the abandonment of the -Revolution. A Philadelphia Episcopal rector, who had been chaplain of -Congress, wrote Washington that the patriot cause was lost and besought -him to give up the struggle. "The most respectable characters" had -abandoned the cause of independence, said Duché. Look at Congress. Its -members were "obscure" and "distinguished for the weakness of their -understandings and the violence of their tempers ... chosen by a little, -low, faction.... Tis you ... only that support them." And the army! "The -whole world knows that its only existence depends on you." Consider the -situation: "Your harbors are blocked up, your cities fall one after the -other; fortress after fortress, battle after battle is lost.... How -fruitless the expense of blood!" Washington alone can end it. Humanity -calls upon him to do so; and if he heeds that call his character "will -appear with lustre in the annals of history."[350] Deeply offended, -Washington sent the letter to Congress, which, however, continued to -find fault with him and to urge an attack upon the British in the -Capital. - -Although Washington refused to throw his worn and hungry troops upon the -perfectly prepared and victorious enemy entrenched in Philadelphia, he -was eager to meet the British in the open field. But he must choose the -place. So when, early in December, Howe's army marched out of -Philadelphia the Americans were ready. Washington had taken a strong -position on some hills toward the Schuylkill not far from White Marsh. -After much maneuvering by the British and effective skirmishing by -detachments of the patriots,[351] the two armies came into close -contact. Not more than a mile away shone the scarlet uniforms of the -Royal troops. Washington refused to be lured from his advantageous -ground.[352] Apparently the British were about to attack and a decisive -battle to be fought. After Brandywine and Germantown, another defeat -would have been ruinous. - -Washington personally animated his men. Marshall, who witnessed it, thus -describes the scene: "The American chief rode through every brigade of -his army, delivering, in person, his orders respecting the manner of -receiving the enemy, exhorting his troops to rely principally on the -bayonet, and encouraging them by the steady firmness of his countenance, -as well as by his words, to a vigorous performance of their duty."[353] - -These words make one see, as one reads, the great Virginian in his -noblest aspect--calm in the face of possible disaster, his spirit -burning brightest on the very fuel of danger itself, his clear mind -unclouded by what was likely to befall. - -Each division, each regiment, each company, was given plain and -practical orders for the expected conflict. And we may be sure that each -man, private as well as officer, took heart as he looked upon the giant -figure and listened to the steady directions and undismayed -encouragement of his chief. Certain it is that John Marshall so felt and -thought. A rare picture, this, full of life and color, that permits us -to behold the growth in the young soldier's soul of that faith in and -devotion to George Washington, seeds of which had been planted in his -childhood days in the Blue Ridge home. - -Finally the British, seeing the resolute front of the Americans and -already bleeding from the fierce thrusts of Morgan's Virginia riflemen, -suddenly withdrew to Philadelphia,[354] and Washington's army went into -winter quarters on the hills of Valley Forge. - - -FOOTNOTES: - -[217] Slaughter, 107-08. This was "the first minute battalion raised -within this Commonwealth." (Memorial of Thomas Marshall to the Virginia -Legislature for military "emoluments"; MS. Archives, Va. St. Lib.) -Appendix IV. - -[218] Washington to Mason, April 5, 1769; _Writings_: Ford, ii, 263. - -[219] Meade, ii, 219. - -[220] Binney, in Dillon, iii, 286. - -[221] _Ib._ - -[222] Statement of eye-witness. (Binney, in Dillon, iii, 287.) - -[223] _Ib._, 288. - -[224] In all descriptions of Marshall, it is stated that his eyes were -black and brilliant. His portraits, however, show them as dark brown, -but keen and piercing. - -[225] Binney, in Dillon, iii, 287-88. - -[226] _Ib._ - -[227] Binney, in Dillon, iii, 288. - -[228] Not only do we find Marshalls, father and sons, taking gallant -part in the Revolutionary War, but, thereafter, advocates of war with -any country when the honor or interest of America was at stake. - -[229] Binney, in Dillon, iii, 288. - -[230] _Infra_, chap. IV. - -[231] Slaughter, 107-08. But Binney's informant says that it was twenty -miles from the court-house. (Binney, in Dillon, iii, 286.) - -[232] Slaughter, 107-08; and certificate of J. Marshall in pension claim -of William Payne; MSS. Rev. War, S. F. no. 8938-1/2, Pension Bureau. - -[233] Slaughter, 107-08. - -[234] _Ib._ - -[235] Campbell, 607-14. - -[236] Slaughter, 107-08; certificate of J. Marshall in pension claim of -David Jameson; MSS. Rev. War, S. F. no. 5607, Pension Bureau. - -[237] Only the Tories and the disaffected were frightened by these -back-countrymen. Apparently Slaughter took this for granted and failed -to make the distinction. - -[238] "The people hearing that we came from the backwoods, and seeing -our savage-looking equipments, seemed as much afraid of us as if we had -been Indians," writes the chronicler of that march. But the people, it -appears, soon got over their fright; for this frontier soldiery, as one -of them relates, "took pride in demeaning ourselves as patriots and -gentlemen, and the people soon treated us with respect and great -kindness." (Slaughter, 107-08.) - -[239] Slaughter, 107-08. - -[240] _Ib._ - -[241] Campbell, 633-34; Eckenrode: _R. V._, 81, 82. - -[242] Burk, iv, 85; and Lossing, ii, 535-36. - -[243] Marshall, i, 69; and Campbell, 635. - -[244] Marshall to Samuel Templeman, Richmond, Sept. 26, 1832, supporting -latter's claim for pension; MSS. Rev. War, S. F. no. 6204, Pension -Bureau. - -[245] For the conduct of the men then in supreme authority in Virginia -see Wirt, 166-81; and Henry, i, 333-36; also, Campbell, 636 _et seq._; -and see Eckenrode: _R. V._, 75. - -[246] Marshall, i, 69; and see Eckenrode: _R. V._, chap. iii, for the -best account that has been given of this important episode. Dr. -Eckenrode's narrative is a complete statement, from original sources, of -every phase of this initial armed conflict between the patriots and -Royalists in Virginia. Also see affidavit of Marshall in pension claim -of William Payne, April 26, 1832; MSS. Rev. War, S. F. no. 8938-1/2, -Pension Bureau. - -[247] Affidavit of Marshall in pension claim of William Payne, April 26, -1832: MSS. Rev. War, S. F. no. 8938-1/2, Pension Bureau. - -[248] Memorial of Thomas Marshall. (_Supra_, and Appendix IV.) - -[249] This uniform was rare; it is probable, however, that Thomas -Marshall procured it for himself and son. He could afford it at that -time, and he was a very proud man. - -[250] Chastellux found the army nearly disbanded from necessity in 1782. -(Chastellux, translator's note to 60.) - -[251] Washington to President of Congress, Jan. 24, 1776; _Writings_: -Ford, iii, 372-73. - -[252] Washington to Reed, Feb. 10, 1776; _ib._, 413. - -[253] Washington to Committee of Safety of New York, April 27, 1776; -_Writings_: Ford, iv, 51-52. - -[254] Washington to President of Congress, Sept. 20, 1776; _ib._, 422. - -[255] Washington to President of Congress, Sept. 24, 1776; _ib._, 439. - -[256] Washington to Major-General Lee, Dec. 1, 1776; _ib._, V, 62. - -[257] General Greene to Governor Cooke, Dec. 4, 1776; _ib._, footnote to -62. - -[258] Washington to President of Congress, Dec. 12, 1776; _Writings_: -Ford, v, 84. - -[259] Washington to President of Congress, Dec. 24, 1776; _ib._, 129-30. -While Washington was desperately badly off, he exaggerates somewhat in -this despondent report, as Mr. Ford's footnote (_ib._, 130) shows. - -[260] Washington to President of Congress, Nov. 11, 1776; _ib._, 19. - -[261] Washington to John Augustine Washington, Nov. 19, 1776; -_Writings_: Ford, v, 38-39. - -[262] Washington to President of Congress, Sept. 8, 1776; _ib._, iv, -397. - -[263] Washington to John Augustine Washington, Sept. 22, 1776; _ib._, -429. - -[264] Washington to Lund Washington, Sept. 30, 1776; _Writings_: Ford, -iv, 457-59. - -[265] Washington to John Augustine Washington, Feb. 24, 1777; _ib._, v, -252. The militia officers were elected "without respect either to -service or experience." (Chastellux, 235.) - -[266] Kapp, 115. - -[267] _The Crisis_: Paine; _Writings_: Conway, i, 175. - -[268] Marshall (1st ed.), iii, 66. - -[269] The militia were worse than wasteful and unmanageable; they -deserted by companies. (Hatch, 72-73.) - -[270] Washington to Wharton, Oct. 17, 1777: _Writings_: Ford, vi, -118-19. - -[271] _Ib._ - -[272] Washington to John Augustine Washington, Oct. 18, 1777; _ib._, -126-29. - -[273] Livingston to Washington, Aug. 12, 1776; _Cor. Rev._: Sparks, i, -275. - -[274] Lee to Washington, Nov. 12, 1776; _ib._, 305. - -[275] Sullivan to Washington, March 7, 1777; _ib._, 353-54. - -[276] Schuyler to Washington, Sept. 9. 1776; _ib._, 287. - -[277] Smith to McHenry, Dec. 10, 1778; Steiner, 21. - -[278] Chastellux, 44; and see Moore's _Diary_, i, 399-400; and _infra_, -chap. IV. - -[279] Washington to Livingston, Dec. 31, 1777; _Writings_: Ford, vi, -272. - -[280] Washington to President of Congress, Dec. 23, 1777; _ib._, 260; -and see _ib._, 267. - -[281] _Pa. Mag. Hist. and Biog._, 1890-91 (2d Series), vi, 79. Most -faces among the patriot troops were pitted with this plague. Washington -was deeply pockmarked. He had the smallpox in the Barbadoes when he was -nineteen years old. (Sparks, 15.) - -[282] Weedon, Jan. 6, 1778, 183. - -[283] Hatch, 135; and Kapp, 109. - -[284] _Proc._, Mass. Hist. Soc. (2d Series), vi, 93. - -[285] _Ib._ Entries of desertions and savage punishment are frequent in -Wild's _Diary_; see p. 135 as an example. Also see Moore's _Diary_, i, -405. - -[286] Weedon, 14. - -[287] _Ib._, Sept. 3, 1777, 30. - -[288] _Ib._, Sept. 15, 1777, 52. And see Sept. 6, p. 36, where officers -as well as privates are ordered "instantly Shot" if they are "so far -lost to all Shame as basely to quit their posts without orders, or shall -skulk from Danger or offer to retreat before orders." - -[289] Livingston to Webb, May 28, 1781; _Writings_: Ford, ix, footnote -to 267. - -[290] One reason for the chaotic state of the army was the lack of -trained officers and the ignorance of the majority of common soldiers in -regard to the simplest elements of drill or discipline. Many of the -bearers of commissions knew little more than the men; and of such -untrained officers there was an overabundance. (Hatch, 13-15.) To Baron -von Steuben's training of privates as well as officers is due the chief -credit for remedying this all but fatal defect. (Kapp, 126-35; also -_infra_, chap. IV.) - -[291] For statement of conditions in the American army throughout the -war see Hatch; also, Bolton. - -[292] The States were childishly jealous of one another. Their different -laws on the subject of rank alone caused unbelievable confusion. (Hatch, -13-16. And see Watson, 64, for local feeling, and inefficiency caused by -the organization of the army into State lines.) - -[293] Hatch says that Connecticut provided most bountifully for her men. -(Hatch, 87.) But Chastellux found the Pennsylvania line the best -equipped; each Pennsylvania regiment had even a band of music. -(Chastellux, 65.) - -[294] "The only garment they possess is a blanket elegantly twined about -them. You may judge, sir, how much this apparel graces their appearance -in parade." (Inspector Fleury to Von Steuben, May 13, 1778; as quoted in -Hatch, 87.) - -[295] Diary of Joseph Clark; _Proceedings_, N.J. Hist. Soc. (1st -Series), vii, 104. The States would give no revenue to the general -Government and the officers thought the country would go to pieces. -(Hatch, 154.) - -[296] Heitman, 285. - -[297] Binney, in Dillon, iii, 284. - -[298] Washington to Committee of Congress, July 19, 1777; _Writings_: -Ford, v, 495. - -[299] Washington to President of Congress, Aug. 23, 1777; _Writings_: -Ford, vi, 50; also see Marshall (1st ed.), iii, 126. - -[300] Marshall (1st ed.), iii, 126. - -[301] _Ib._, 127. - -[302] On this subject see Waldo's poem, _Hist. Mag._, vii, 274; and -Clark's Diary, _Proc._, N.J. Hist. Soc., vii, 102. - -[303] Weedon, Aug. 23, 1777, 19. - -[304] Marshall (1st ed.), iii, 127. - -[305] _Ib._, 128; and see Trevelyan, iv, 226. - -[306] Marshall (1st ed.), iii, 127-29; _ib._ (2d ed.), i, 154-56; -Washington to President of Congress, Sept. 3, 1777; _Writings_: Ford, -vi, 64-65. - -[307] Story, in Dillon, iii, 335. - -[308] Washington to President of Congress, Sept 11, 1777; _Writings_: -Ford, vi, 69. - -[309] Marshall (1st ed.), iii, 131; _ib._ (2d ed.), i, 156. Colonel -Harrison, Washington's Secretary, reported immediately to the President -of Congress that Maxwell's men believed that they killed or wounded "at -least three hundred" of the British. (Harrison to President of Congress, -Sept. 11, 1777; _Writings_: Ford, vi, footnote to 68.) - -[310] Marshall, i, 156. The fact that Marshall places himself in this -detachment, which was a part of Maxwell's light infantry, together with -his presence at Iron Hill, fixes his position in the battle of the -Brandywine and in the movements that immediately followed. It is -reasonably certain that he was under Maxwell until just before the -battle of Germantown. Of this skirmish Washington's optimistic and -excited Secretary wrote on the spot, that Maxwell's men killed thirty -men and one captain "left dead on the spot." (Harrison to the President -of Congress, Sept. 11, 1777; _Writings_: Ford, vi, footnote to 68.) - -[311] Thomas Marshall was promoted to be lieutenant-colonel Aug. 13, -1776; and colonel Feb. 21, 1777. (Heitman, 285.) - -[312] Trevelyan, iv, 230. - -[313] Marshall, i, footnote to 158. - -[314] _Ib._ Colonel Thomas Marshall's cool-headed and heroic conduct at -this battle, which brought out in high lights his fine record as an -officer, caused the Virginia House of Delegates to elect him colonel of -the State Regiment of Artillery raised by that Commonwealth three months -later. The vote is significant; for, although there were three -candidates, each a man of merit, and although Thomas Marshall himself -was not an aspirant for the place, and, indeed, was at Valley Forge when -the election occurred, twice as many votes were cast for him as for all -the other candidates put together. Four men were balloted for, Thomas -Marshall receiving seventy-five votes and the other three candidates all -together but thirty-six votes. (Journal, H.B. (Nov. 5, 1777), 27.) - -[315] Marshall, i, 156; and Trevelyan, iv, 230-31. Washington reported -that Wayne and Maxwell's men retreated only "after a severe conflict." -(Washington to President of Congress, Sept. 11, 1777; _Writings_: Ford, -vi, 69.) - -[316] Trevelyan, iv, 232. - -[317] Marshall, i, 157-58. - -[318] _Ib._; and see Irving, iii, 200-09. - -[319] Marshall, i, 158-59. - -[320] Four years afterward Chastellux found that "most of the trees bear -the mark of bullets or cannon shot." (Chastellux, 118.) - -[321] Washington to President of Congress, Sept. 11, 1777; _Writings_: -Ford, vi, 70. - -[322] Marshall (1st ed.), iii, 141, and see Washington to President of -Congress, Sept. 23, 1777; _Writings_: Ford, vi, 81. - -[323] Marshall, i, 160. - -[324] Marshall, i, 160. When their enlistments expired, the soldiers -took the Government's muskets and bayonets home with them. Thus -thousands of muskets and bayonets continually disappeared. (See Kapp, -117.) - -[325] Marshall, i, 160-61. - -[326] _Ib._ - -[327] Washington to President of Congress, Sept. 23, 1777; _Writings_: -Ford, vi, 81-82. - -[328] This is an inference, but a fair one. Maxwell was under Wayne; and -Marshall was one of Maxwell's light infantry of picked men. (_Supra._) - -[329] Marshall, i, 161. "The British accounts represent the American -loss to have been much larger. It probably amounted to at least three -hundred men." (_Ib._, footnote.) - -[330] _Ib._, and see _Pa. Mag. Hist. and Biog._, i, 305. - -[331] Marshall repeatedly expresses this thought in his entire account -of the war. - -[332] Washington to President of Congress, Sept. 23, 1777; _Writings_: -Ford, vi, 80. - -[333] Marshall, i, 162. - -[334] _Ib._ - -[335] Washington to President of Congress, Sept. 23, 1777; _Writings_: -Ford, vi, 82. - -[336] _Works_: Adams, ii, 437. - -[337] _Ib._ - -[338] _Pa. Mag. Hist. and Biog._, xvi, 197 _et seq._ - -[339] American officer's description of the battle. (_Ib._, xi, 330.) - -[340] Marshall, i, 168. - -[341] _Ib._, 168-69. - -[342] From an American officer's description, in _Pa. Mag. Hist. and -Biog._, xi, 330. - -[343] _Ib._, 331-32. - -[344] _Ib._ - -[345] "The rebels carried off a large number of their wounded as we -could see by the blood on the roads, on which we followed them so far -[nine miles]." (British officer's account of battle; _Pa. Mag. Hist. and -Biog._, xvi, 197 _et seq._) - -[346] Marshall, i, 170-71. - -[347] _Ib._, 181. - -[348] _Ib._, 181-82. - -[349] Marshall (1st ed.), iii, 287. Marshall omits this sentence in his -second edition. But his revised account is severe enough. - -[350] The Reverend Jacob Duché, to Washington, Oct. 8, 1777; _Cor. -Rev._: Sparks, i, 448-58. - -[351] Washington to President of Congress, Dec. 10, 1777; _Writings_: -Ford, vi, 238-39. - -[352] Clark's Diary, _Proc._, N.J. Hist. Soc. (1st Series), vii, 102-03. -"It seems that the enemy had waited all this time before our lines to -decoy us from the heights we possessed." (_Ib._) - -[353] Marshall, i, 184. - -[354] Marshall, i, 184. - - - - -CHAPTER IV - -VALLEY FORGE AND AFTER - - Unless some great and capital change suddenly takes place ... this - army must inevitably starve, dissolve, or disperse. (Washington, - Dec. 23, 1777.) - - John Marshall was the best tempered man I ever knew. Nothing - discouraged, nothing disturbed him. (Lieutenant Slaughter, of - Marshall at Valley Forge.) - - -Gaunt and bitter swept down the winter of 1777. But the season brought -no lean months to the soldiers of King George, no aloes to the Royal -officers in fat and snug Philadelphia.[355] It was a period of rest and -safety for the red-coated privates in the city, where, during the -preceding year, Liberty Bell had sounded its clamorous defiance; a time -of revelry and merry-making for the officers of the Crown. Gay days -chased nights still gayer, and weeks of social frolic made the winter -pass like the scenes of a warm and glowing play. - -For those who bore the King's commission there were balls at the City -Tavern, plays at the South-Street Theater; and many a charming -flirtation made lively the passing months for the ladies of the -Capital, as well as for lieutenant and captain, major and colonel, of -the invaders' army. And after the social festivities, there were, for -the officers, carousals at the "Bunch of Grapes" and all night dinners -at the "Indian Queen."[356] - -"You can have no idea," wrote beautiful Rebecca Franks,--herself a keen -Tory,--to the wife of a patriot, "you can have no idea of the life of -continued amusement I live in. I can scarce have a moment to myself. I -spent Tuesday evening at Sir William Howe's, where we had a concert and -dance.... Oh, how I wished Mr. Paca would let you come in for a week or -two!... You'd have an opportunity of raking as much as you choose at -Plays, Balls, Concerts, and Assemblies. I have been but three evenings -alone since we moved to town."[357] - -"My wife writes me," records a Tory who was without and whose wife -was within the Quaker City's gates of felicity, "that everything is -gay and happy [in Philadelphia] and it is like to prove a frolicking -winter."[358] Loyal to the colors of pleasure, society waged a -triumphant campaign of brilliant amusement. The materials were -there of wit and loveliness, of charm and manners. Such women there -were as Peggy Chew and Rebecca Franks, Williamina Bond and Margaret -Shippen--afterwards the wife of Benedict Arnold and the probable cause -of his fall;[359] such men as Banastre Tarleton of the Dragoons, -twenty-three years old, handsome and accomplished; brilliant Richard -Fitzpatrick of the Guards; Captain John André, whose graces charmed all -hearts.[360] So lightly went the days and merrily the nights under the -British flag in Philadelphia during the winter of 1777-78. - -For the common soldiers there were the race-course and the cock-pit, -warm quarters for their abodes, and the fatness of the land for their -eating. Beef in abundance, more cheese than could be used, wine enough -and to spare, provisions of every kind, filled pantry and cellar. For -miles around the farmers brought in supplies. The women came by night -across fields and through woods with eggs, butter, vegetables, turkeys, -chickens, and fresh meat.[361] For most of the farmers of English -descent in that section hated the war and were actively, though in -furtive manner, Tory. They not only supplied the British larder, but -gave news of the condition and movements of the Americans.[362] - -Not twenty miles away from these scenes of British plenty and content, -of cheer and jollity, of wassail and song, rose the bleak hills and -black ravines of Valley Forge, where Washington's army had crawled some -weeks after Germantown. On the Schuylkill heights and valleys, the -desperate Americans made an encampment which, says Trevelyan, "bids fair -to be the most celebrated in the world's history."[363] The hills were -wooded and the freezing soldiers were told off in parties of twelve to -build huts in which to winter. It was more than a month before all these -rude habitations were erected.[364] While the huts were being built the -naked or scarcely clad[365] soldiers had to find what shelter they -could. Some slept in tents, but most of them lay down beneath the -trees.[366] For want of blankets, hundreds, had "to sit up all night by -fires."[367] After Germantown Washington's men had little to eat at any -time. On December 2, "the last ration had been delivered and -consumed."[368] Through treachery, cattle meant for the famishing -patriots were driven into the already over-supplied Philadelphia.[369] - -The commissariat failed miserably, perhaps dishonestly, to relieve -the desperate want. Two days before Christmas there was "not a -single hoof of any kind to slaughter, and not more than twenty-five -barrels of flour!"[370] Men died by the score from starvation.[371] -Most of the time "fire cake" made of dirty, soggy dough, -warmed over smoky fires, and washed down with polluted water -was the only sustenance. Sometimes, testifies Marshall himself, -soldiers and officers "were absolutely without food."[372] -On the way to Valley Forge, Surgeon Waldo writes: "I'm Sick--eat -nothing--No Whiskey--No Baggage--Lord,--Lord,--Lord."[373] Of the camp -itself and of the condition of the men, he chronicles: "Poor food--hard -lodging--Cold Weather--fatigue--Nasty Cloaths--nasty Cookery--Vomit half -my time--Smoak'd out of my senses--the Devil's in it--I can't Endure -it--Why are we sent here to starve and freeze--What sweet Felicities -have I left at home;--A charming Wife--pretty Children--Good Beds--good -food--good Cookery--all agreeable--all harmonious. Here, all -Confusion--Smoke--Cold,--hunger & filthyness--A pox on my bad luck. Here -comes a bowl of beef soup,--full of burnt leaves and dirt, sickish -enough to make a hector spue--away with it, Boys--I'll live like the -Chameleon upon Air."[374] - -While in overfed and well-heated Philadelphia officers and privates took -the morning air to clear the brain from the night's pleasures, John -Marshall and his comrades at Valley Forge thus greeted one another: -"Good morning Brother Soldier (says one to another) how are you?--All -wet, I thank'e, hope you are so--(says the other)."[375] Still, these -empty, shrunken men managed to squeeze some fun out of it. When reveille -sounded, the hoot of an owl would come from a hut door, to be answered -by like hoots and the cawing of crows; but made articulate enough to -carry in this guise the cry of "'No meat!--No meat!' The distant vales -Echo'd back the melancholy sound--'No Meat!--No Meat!'... What have you -for our Dinners, Boys? [one man would cry to another] 'Nothing but Fire -Cake and Water, Sir.' At night--'Gentlemen, the Supper is ready.' What -is your Supper, Lads? 'Fire Cake & Water, Sir.'" - -Just before Christmas Surgeon Waldo writes: "Lay excessive Cold & -uncomfortable last Night--my eyes are started out from their Orbits like -a Rabbit's eyes, occasion'd by a great Cold--and Smoke. What have you -got for Breakfast, Lads? 'Fire Cake and Water, Sir.' The Lord send that -our Commissary of Purchases may live on Fire Cake & Water till their -glutted Gutts are turned to Pasteboard." - -He admonishes: "Ye who Eat Pumpkin Pie and Roast Turkies--and yet Curse -fortune for using you ill--Curse her no more--least she reduce you ... -to a bit of Fire Cake & a Draught of Cold Water, & in Cold -Weather."[376] - -Heart-breaking and pitiful was the aspect of these soldiers of liberty. -"There comes a Soldier--His bare feet are seen thro' his worn out -Shoes--his legs nearly naked from the tatter'd remains of an only pair -of stockings--his Breeches not sufficient to cover his Nakedness--his -Shirt hanging in Strings--his hair dishevell'd--his face meagre--his -whole appearance pictures a person foresaken & discouraged. He comes, -and crys with an air of wretchedness & despair--I am Sick--my feet -lame--my legs are sore--my body cover'd with this tormenting Itch--my -Cloaths are worn out--my Constitution is broken--my former Activity is -exhausted by fatigue--hunger & Cold!--I fail fast I shall soon be no -more! And all the reward I shall get will be--'Poor Will is dead.'"[377] - -On the day after Christmas the soldiers waded through snow halfway to -their knees. Soon it was red from their bleeding feet.[378] The cold -stung like a whip. The huts were like "dungeons and ... full as -noisome."[379] Tar, pitch, and powder had to be burned in them to drive -away the awful stench.[380] The horses "died by hundreds every week"; -the soldiers, staggering with weakness as they were, hitched themselves -to the wagons and did the necessary hauling.[381] If a portion of earth -was warmed by the fires or by their trampling feet, it froze again into -ridges which cut like knives. Often some of the few blankets in the army -were torn into strips and wrapped around the naked feet of the soldiers -only to be rent into shreds by the sharp ice under foot.[382] Sick men -lay in filthy hovels covered only by their rags, dying and dead comrades -crowded by their sides.[383] - -As Christmas approached, even Washington became so disheartened that he -feared that "this army must dissolve;"[384] and the next day he again -warned Congress that, unless the Commissary were quickly improved, "this -army must inevitably ... starve, dissolve, or disperse."[385] - -Early in 1778 General Varnum wrote General Greene that "The situation of -the Camp is such that in all human probability the Army must soon -dissolve. Our desertions are astonishingly great."[386] "The army must -dissolve!" "The army must dissolve!"--the repeated cry comes to us like -the chant of a saga of doom. - -Had the British attacked resolutely, the Americans would have been -shattered beyond hope of recovery.[387] On February 1, 1778, only five -thousand and twelve men out of a total of more than seventeen thousand -were capable of any kind of service: four thousand were unfit for duty -because of nakedness.[388] The patriot prisoners within the British -lines were in even worse case, if we credit but half the accounts then -current. "Our brethren," records Surgeon Waldo in his diary, "who are -unfortunately Prisoners in Philadelphia, meet with the most savage & -inhumane treatments--that Barbarians are Capable of inflicting.... One -of these poor unhappy men--drove to the last extreem by the rage of -hunger--eat his own fingers up to the first joint from the hand, before -he died. Others eat the Clay--the Lime--the Stones--of the Prison Walls. -Several who died in the Yard had pieces of Bark, Wood,--Clay & Stones in -their mouths--which the ravings of hunger had caused them to take in the -last Agonies of Life."[389] - -The Moravians in Bethlehem, some miles away from Valley Forge, were the -only refuge of the stricken patriots. From the first these Christian -socialists were the Good Samaritans of that ghastly winter. This little -colony of Germans had been overrun with sick and wounded American -soldiers. Valley Forge poured upon it a Niagara of starvation, disease, -and death. One building, scarcely large enough for two hundred and fifty -beds, was packed with nearly a thousand sick and dying men. Dysentery -reduced burly strength to trembling weakness. A peculiar disease rotted -blood and bones. Many died on the same foul pallet before it could be -changed. The beds were "heaps of polluted litter." Of forty of John -Marshall's comrades from a Virginia regiment, which was the "pride of -the Old Dominion," only three came out alive.[390] "A violent putrid -fever," testifies Marshall, "swept off much greater numbers than all the -diseases of the camp."[391] - -Need, was there not, at Valley Forge for men of resolve so firm and -disposition so sunny that they would not yield to the gloom of these -indescribable months? Need, was there not, among these men, for spirits -so bright and high that they could penetrate even the death-stricken -depression of this fetid camp with the glow of optimism and of hope? - -Such characters were there, we find, and of these the most shining of -all was John Marshall of the Virginia line.[392] He was a very torch of -warmth and encouragement, it appears; for in the journals and diaries -left by those who lived through Valley Forge, the name of John Marshall -is singled out as conspicuous for these comforting qualities. - -"Although," writes Lieutenant Philip Slaughter, who, with the "two -Porterfields and Johnson," was the messmate of John Marshall, "they -were reduced sometimes to a single shirt, having to wrap themselves in a -blanket when that was washed"[393] and "the snow was knee-deep all the -winter and stained with blood from the naked feet of the soldiers,"[394] -yet "nothing discouraged, nothing disturbed" John Marshall. "If he had -only bread to eat," records his fellow officer, "it was just as well; if -only meat it made no difference. If any of the officers murmured at -their deprivations, he would shame them by good-natured raillery, or -encourage them by his own exuberance of spirits. - -"He was an excellent companion, and idolized by the soldiers and his -brother officers, whose gloomy hours were enlivened by his inexhaustible -fund of anecdote.... John Marshall was the best tempered man I ever -knew,"[395] testifies his comrade and messmate. - -So, starving, freezing, half blind with smoke, thinly clad and almost -shoeless, John Marshall went through the century-long weeks of Valley -Forge, poking fun wherever he found despondency, his drollery bringing -laughter to cold-purpled lips, and, his light-hearted heroism shaming -into erectness the bent backs of those from whom hope had fled. At one -time it would be this prank; another time it would be a different -expedient for diversion. By some miracle he got hold of a pair of silk -stockings and at midnight made a great commotion because the leaves he -had gathered to sleep on had caught fire and burned a hole in his -grotesque finery.[396] - -High spirits undismayed, intelligence shining like a lamp, common sense -true as the surveyor's level--these were the qualities which at the -famine camp at Valley Forge singled the boyish Virginia officer out of -all that company of gloom. Just before the army went into winter -quarters Captain-Lieutenant Marshall was appointed "Deputy Judge -Advocate in the Army of the United States,"[397] and at the same time, -by the same order, James Monroe was appointed aide-de-camp to Lord -Stirling, one of Washington's generals.[398] - -Such was the confidence of his fellow officers and of the soldiers -themselves in Marshall's judgment and fairness that they would come to -him with their disputes and abide by his decision; and these tasks, it -seems, the young Solomon took quite seriously. He heard both sides with -utmost patience, and, having taken plenty of time to think it over, -rendered his decision, giving the reasons therefor in writing.[399] So -just after he had turned his twenty-second year, we find John Marshall -already showing those qualities which so distinguished him in after -life. Valley Forge was a better training for Marshall's peculiar -abilities than Oxford or Cambridge could have been. - -His superiority was apparent, even to casual observers, notwithstanding -his merriment and waggishness. One of a party visiting Valley Forge said -of the stripling Virginia officer: "By his appearance then we supposed -him about twenty-two or twenty-three years of age. Even so early in -life ... he appeared to us _primus inter pares_, for amidst the many -commissioned officers he was discriminated for superior intelligence. -Our informant, Colonel Ball, of another regiment in the same line,[400] -represented him as a young man, not only brave, but signally -intelligent."[401] - -Marshall's good humor withstood not only the horrors of that terrible -winter, but also Washington's iron military rule. The Virginia -lieutenant saw men beaten with a hundred stripes for attempting to -desert. Once a woman was given a hundred lashes and drummed out of the -army. A lieutenant was dismissed from the service in disgrace for -sleeping and eating with privates, and for buying a pair of shoes from a -soldier.[402] Bitter penalties were inflicted on large numbers of -civilians for trying to take flour, cattle, and other provisions to the -British in Philadelphia;[403] a commissary was "mounted on a horse, back -foremost, without a Saddle, his Coat turn'd wrong side out his hands -tied behind him & drummed out of the Army (Never more to return) by all -the Drums in the Division."[404] - -What held the patriot forces together at this time? George Washington, -and he alone.[405] Had he died, or had he been seriously disabled, the -Revolution would have ended. Had typhoid fever seized Washington for a -month, had any of those diseases, with which the army was plagued, -confined him, the patriot standard would have fallen forever. Washington -was the soul of the American cause. Washington was the Government. -Washington was the Revolution. The wise and learned of every land agree -on this. Professor Channing sums it all up when he declares: "Of all men -in history, not one so answers our expectations as Washington. Into -whatever part of his life the historian puts his probe, the result is -always satisfactory."[406] - -Yet intrigue and calumny sought his ruin. From Burgoyne's surrender on -through the darkest days of Valley Forge, the Conway cabal shot its -filaments through Congress, society, and even fastened upon the army -itself. Gates was its figurehead, Conway its brain, Wilkinson its tool, -Rush its amanuensis, and certain members of Congress its accessories -before the fact. The good sense and devotion of Patrick Henry, who -promptly sent Washington the anonymous letter which Rush wrote to the -Virginia Governor,[407] prevented that shameful plot from driving -Washington out of the service of his country. - -Washington had led his army to defeat after defeat while Gates had -gained a glorious victory; Gates was the man for the hour--down, then, -with the incompetent Virginian, said the conspirators. The Pennsylvania -Legislature, wroth that Howe's army had not been beaten, but allowed to -occupy the comfortable Capital of the State, remonstrated to Congress. -That body, itself, was full of dissatisfaction with the -Commander-in-Chief. Why would he not oust the British from Philadelphia? -Why had he allowed Howe to escape when that general marched out to meet -him? As the first step toward Washington's downfall, Congress created a -new Board of War, with Gates as President; Conway was made -Inspector-General.[408] - -The conspirators and those whom their gossip could dupe lied about -Washington's motives. His abilities, it was said, were less than -ordinary; and his private conduct, went the stealthy whisper, was so bad -as to prove the hypocrisy of his deportment.[409] Nor were Washington's -generals spared. Greene was a sycophant, said these assassins of -character; Sullivan a braggart; Stirling "a lazy, ignorant drunkard." -These poisoners of reputation declared that General Knox and Alexander -Hamilton were "paltry satellites" of Washington and flatterers of his -vanity.[410] So cunning, subtle, and persistent were these sappers and -miners of reputation that even the timely action of Patrick Henry in -sending Washington Rush's unsigned attack might not have prevented the -great American's overthrow; for envy of Washington's strength, suspicion -of his motives, distrust of his abilities, had made some impression -even on men like John Adams.[411] - -The great American bore himself with dignity, going hardly further than -to let his enemies know that he was aware of their machinations.[412] At -last, however, he lashed out at Congress. Let that body look to the -provisioning of the army if it expected the soldiers to fight. The -troops had no food, no clothing. The Quartermaster-General had not been -heard from for five months. Did his critics think "the soldiers were -made of stocks and stones?" Did they think an active winter campaign -over three States with starving naked troops "so easy and practicable a -business? I can assure those gentlemen," writes Washington, "that it is -a much easier and less distressing thing to draw remonstrances in a -comfortable room by a good fireside, than to occupy a cold, bleak hill, -and sleep under frost and snow, without clothes or blankets.... I have -exposed myself to detraction and calumny" because "I am obliged to -conceal the true state of the army from public view.... No day nor -scarce an hour passes without" an officer tendering his -resignation.[413] - -Washington was saved finally by the instinctive faith which that part of -the common people who still supported the Revolution had in their great -leader, and by his soldiers' stanch devotion, which defeat after defeat, -retreat hard upon the heels of preceding retreat, hunger and nakedness, -wounds and sickness could not shake. - -"See the poor Soldier," wrote Surgeon Waldo at Valley Forge. "He labours -thro' the Mud & Cold with a Song in his mouth, extolling War & -Washington."[414] - -Congress soon became insignificant in numbers, only ten or twelve -members attending, and these doing business or idling as suited their -whim.[415] About the only thing they did was to demand that Washington -strike Philadelphia and restore the members of this mimetic government -to their soft, warm nests. Higher and yet more lofty in the esteem of -his officers and men rose their general. Especially was this true of -John Marshall for reasons already given, which ran back into his -childhood. - -In vain Washington implored the various States to strengthen Congress by -sending their best men to this central body. Such able men as had not -taken up arms for their country refused to serve in Congress. Nearly -every such man "was absorbed in provincial politics, to the exclusion of -any keen and intelligent interest in the central Government of his -nation."[416] - -Amidst the falling snow at Valley Forge, Washington thus appealed to -Colonel Harrison in Virginia: "America never stood in more eminent need -of the wise, patriotic, and spirited exertions of her Sons than at this -period.... The States, separately, are too much engaged in their local -concerns.... The States ... have very inadequate ideas of the present -danger."[417] The letter could not be sent from that encampment of ice -and death for nearly two weeks; and the harassed commander added a -postscript of passionate appeal declaring that "our affairs are in a -more distressed, ruinous, and deplorable condition than they have been -in since the commencement of the War."[418] - -"You are beseeched most earnestly, my dear Col^o Harrison," pleaded -Washington, "to exert yourself in endeavoring to rescue your Country -by ... sending your best and ablest Men to Congress--these characters -must not slumber nor sleep at home in such times of pressing -danger--they must not content themselves in the enjoyment of places of -honor or profit in their Country [Virginia][419] while the common -interests of America are mouldering and sinking into irretrievable ... -ruin, in which theirs also must ultimately be involved."[420] - -With such men, Washington asserted, "party disputes and personal -quarrels are the great business of the day, whilst the momentous -concerns of an empire [America][421] ... are but secondary -considerations." Therefore, writes Washington, in angry exasperation, -"in the present situation of things, I cannot help asking--Where is -Mason--Wythe--Jefferson?"[422] - -"Where is Jefferson?" wrote Washington in America's darkest hour, when -the army was hardly more than an array of ragged and shoeless skeletons, -and when Congress was so weak in numbers and ability that it had become -a thing of contempt. Is it not probable that the same question was asked -by the shivering soldiers and officers of the Continental army, as they -sat about the smoking fires of their noisome huts sinking their -chattering teeth into their "Fire Cake" and swallowing their brackish -water? If Washington would so write, is it not likely that the men would -so talk? For was not Jefferson the penman who had inscribed the -Declaration of Independence, for which they were fighting, suffering, -dying? - -Among the Virginians especially there must have been grave questionings. -Just as to John Marshall's army experience the roots of the greatest of -his constitutional opinions may clearly be traced, so the beginnings of -his personal estimate of Thomas Jefferson may be as plainly found in -their relative situations and conduct during the same period. - -John Marshall was only a few days beyond his twentieth year when, with -his Culpeper Minute Men, he fought the British at Great Bridge. Thomas -Jefferson at that time was thirty-two years old; but the prospect of -battle on Virginia's soil did not attract him. At Valley Forge, John -Marshall had just entered on his twenty-third year, and Thomas -Jefferson, thirty-five years old, was neither in the army nor in -Congress. Marshall had no fortune; Jefferson was rich.[423] - -So, therefore, when as reserved a man as Washington had finally and with -great effort trained himself to be, asked in writing, "Where is -Jefferson?" is it not a reasonable inference that the Virginia officers -in the familiar talk of comrades, spoke of Jefferson in terms less mild? - -And, indeed, where was Thomas Jefferson? After serving in Congress, he -refused point-blank to serve there again and resigned the seat to which -he had been reëlected. "The situation of my domestic affairs renders it -indispensably necessary that I should solicit the substitution of some -other person," was the only excuse Jefferson then gave.[424] He wanted -to go to the State Legislature instead, and to the State Legislature he -went. His "domestic affairs" did not prevent that. In his Autobiography, -written forty-four years afterward (1821), Jefferson declares that he -resigned from Congress and went to the State Legislature because "our -[State] legislation under the regal government had many very vicious -points which urgently required reformation and I thought I could be of -more use in forwarding that work."[425] - -So while the British revels were going on in Philadelphia and the -horrors of Valley Forge appeared to be bringing an everlasting night -upon American liberty, and when the desperation of the patriot cause -wrung from the exasperated Washington his appeal that Virginia's ablest -men should strengthen the feeble and tottering Congress, Jefferson was -in the State Legislature. But he was not there merely enjoying office -and exclusively engaged in party politics as Washington more than -intimates. He was starting such vital reforms as the abolition of -entails, the revision of the criminal code, the establishment of a free -school system, the laying of the legal foundations of religious -freedom.[426] - -In short, Jefferson was sowing the seeds of liberalism in Virginia. But -it is only human nature that breasts bearing the storm of war should not -have thrilled in admiration of this civil husbandry. It was but natural -that the benumbed men at Valley Forge should think the season early for -the planting of State reforms, however needful, when the very ground of -American independence was cold and still freezing with patriot -misfortune and British success. - -Virginia's Legislature might pass all the so-called laws it liked; the -triumph of the British arms would wipe every one of them from the -statute books. How futile, until America was free, must all this -bill-drafting and reforming have appeared to the hard-driven men on the -Schuylkill's Arctic hills! "Here are we," we can hear them say, "in -worse case than most armies have been in the whole history of the world; -here are we at Valley Forge offering our lives, wrecking our health, -losing the little store we have saved up, and doing it gladly for the -common American cause; and there, in safe and comfortable Williamsburg -or at sumptuous Monticello, is the man who wrote our Declaration of -Independence, never venturing within the sound of cannon or smell of -powder and even refusing to go to Congress." - -The world knows now that Jefferson was not to be blamed. He was not a -man of arms, dreaded the duties of a soldier, had no stomach for -physical combat.[427] He was a philosopher, not a warrior. He loved to -write theories into laws that correct civil abuses by wholesale, and to -promote the common good by sweeping statutes. Also, he was a born -politician, skillful and adroit in party management above any man in our -history.[428] - -But as a man of action in rough weather, as an executive in stern times, -he himself admitted his deficiency.[429] So we know to-day and better -understand this great reformer, whose devotion to human rights has made -men tolerant of his grave personal shortcomings. Nothing of this, -however, could have occurred to the starving, shivering patriot soldiers -in their awful plight at Valley Forge. Winning the war was their only -thought, as always is the soldier's way. - -Early in April, 1778, when, but for the victory at Saratoga, the -Revolution seemed well-nigh hopeless to all but the stoutest hearts, an -old and valued English friend begged Washington to give up the -apparently doomed American cause. The Reverend Andrew Burnaby appealed -to him for American and British reunion. "Must the parent and the child -be forever at variance? And can either of them be happy, independent of -the other?" The interests of the two countries are the same; "united -they will constitute the fairest and happiest state in the world; -divided they will be quite the reverse. It is not even possible that -America should be happy, unconnected with Great Britain." In case -America should win, the States will fall asunder from civil discord. The -French, "that false and treacherous people," will desert the Americans. -Great Britain and America have "the same interest, the same lineage, the -same language, the same liberty, the same religion, connecting them." -Everybody in England wants reunion; even the Government is anxious to -"rectify ... errors and misunderstandings." It is time to "heal the -wounds on both sides." Washington can achieve this "divine purpose" and -"thereby acquire more glory and confer more real and lasting service, -both to your own country and to mankind in general than ... ever yet -happened to the lot of any one man."[430] - -This subtle plea, designed to prepare the way for the British -"Commission of Conciliation," neither flattered nor tempted Washington. -It insulted him. He acted more vigorously than ever; and, soon -afterward, his answer was delivered with cannon and bayonet on the field -of Monmouth.[431] - -When the winter had passed, Washington once more appealed to Congress to -cease its bickering and indecision. That body was jealous of the army, -he declared, whereas, said he, "We should all be considered, Congress -and Army, as one people, embarked in one cause, in one interest; acting -on the same principle, and to the same end"--a philosophy which a young -Virginia officer was then absorbing and continued to absorb, until it -became the ruling force in his life. - -"No history extant," continues Washington, "can furnish an instance of -an army's suffering such uncommon hardships ... and bearing them with -the same patience and fortitude. To see men without clothes to cover -their nakedness, without blankets to lie on, without shoes, by which -their marches might be traced by the blood from their feet, and almost -as often without provisions as with them, marching through the frost and -snow, and at Christmas taking up their winter quarters within a day's -march of the enemy, without a house or hut to cover them, 'till they -could be built, and submitting to it without a murmur, is proof of -patience and obedience which, in my opinion can scarce be -paralleled."[432] - -Further shaming Congress into action, Washington says that "with us ... -the officer ... must break in upon his private fortune for present -support, without a prospect of future relief"; while, with the British, -company commands "are esteemed so honorable and so valuable that they -have sold of late from fifteen to twenty-two hundred pounds sterling -and ... four thousand guineas have been given for a troop of -dragoons."[433] - -Finally came the spring of 1778. The spirits of the men rose with the -budding of the trees. Games and sport alternated with drill and policing -of the camp. The officers made matches for quoits, running, and jumping. -Captain-Lieutenant Marshall was the best athlete in his regiment. He -could vault over a pole "laid on the heads of two men as high as -himself." A supply from home had reached him at last, it appears, and in -it were socks. So sometimes Marshall ran races in his stocking feet. In -knitting this foot apparel, his mother had made the heels of white yarn, -which showed as he ran. Thus came his soldier nickname of "Silver -Heels."[434] - -As spring advanced, the troops recovered their strength and, finally, -were ready and eager again to meet the enemy. Washington had persuaded -General Greene to accept the vital office of Quartermaster-General; and -food, clothing, and munitions had somewhat relieved the situation.[435] -Baron von Steuben had wrought wonders in the drill and discipline of the -men and in the officers' knowledge of their technical duties.[436] "I -should do injustice if I were to be longer silent with regard to the -merits of the Baron de [von] Steuben" Washington told Congress, in -hearty appreciation of the Prussian general's services.[437] - -Another event of immense importance cheered the patriot forces and -raised patriot hopes throughout America. The surrender of Burgoyne had -encouraged the French statesmen to attempt the injury of England by -helping the revolting colonies. On May 6, 1778, the treaty of alliance -with Louis XVI was laid before Congress.[438] The miseries of the past -winter were forgotten by the army at Valley Forge in the joy over the -French Monarch's open championship of the American cause and his attack -upon the British.[439] For it meant trained troops, ships of war, -munitions, and money. It meant more--it signified, in the end, war by -France upon England. - -The hills of Valley Forge were vocal with huzzas and the roar of cannon. -Songs filled the air. The army paraded. Sermons were preached. The -rebound went to heights of enthusiasm equaling the former depths of -despair.[440] Marshall, we may be sure, joined with his characteristic -zest in the patriots' revel of happiness. Washington alone had -misgivings. He feared that, because of the French alliance, Congress and -the States would conclude that "we have nothing more to do" and so -"relapse into a state of supineness and perfect security."[441] -Precisely this occurred. - -Soon, however, other inspiriting tidings came--the British, it was said, -were about to quit Philadelphia. The gayety in that city had continued -throughout the winter, and just before the evacuation, reached its -climax in a festival of almost unbelievable opulence and splendor. -Processions of flower-decked boats, choruses, spectacles, and parades -crowded the day; dancing and music came with sunset, and at midnight, -lighted by hundreds of wax candles, twelve hundred people sat down to a -dinner of Oriental luxury served by negroes clad in the rich costumes of -the East "with silver collars and bracelets."[442] - -When, on June 18, the Royal forces abandoned the city, the Americans -were quick in pursuit. On June 28, a day of blistering heat, the battle -of Monmouth was fought. That scorching Sunday "was long remembered all -over the United States as the most sultry day which had ever been -endured since mankind learned to read the thermometer."[443] - -It must have been very hot indeed, for Marshall himself speaks of "the -intense heat";[444] and he disliked extreme terms. Marshall was one of -the advance guard[445] under Wayne, with Lee in command of the division. -In a previous council of war most of the higher officers were decidedly -against risking the action; but Washington overruled them and ordered -Lee to attack the British force "the moment it should move from its -ground."[446] - -The Commander-in-Chief, with the main body of American troops, was to -come to Lee's support. It is unnecessary to go over the details of Lee's -unhappy blunder, his retreat, Washington's Berserker rage and stinging -rebuke on the battlefield in sight and hearing of officer and private, -the turning of the rout into attack, and attack into victory by the -sheer masterfulness of the mighty Virginian. From ten o'clock until -nightfall the conflict raged, the Americans generally successful. - -The overpowering sun made the action all but insufferable. Many died -from the effects of the furnace-like heat. The fighting was heavy and -often hand to hand. Throughout the day Washington was the very soul of -battle. His wrath at Lee's retreat unleashed the lion in him. He rode -among the troops inspiring, calming, strengthening, steadying. Perhaps -at no time in his life, except at Braddock's defeat, was his peculiar -combination of cool-headed generalship and hot-blooded love of combat so -manifest in a personal way as on this blazing June day at Monmouth. - -"Never," testifies Lafayette, who commanded part of the advance and -fought through the whole battle, "was General Washington greater in war -than in this action. His presence stopped the retreat. His dispositions -fixed the victory. His fine appearance on horseback, his calm courage, -roused by the animation produced by the vexation of the morning, gave -him the air best calculated to excite enthusiasm."[447] - -When Washington was preparing the final stroke, darkness fell. The -exhausted Americans, their clothing drenched with sweat, slept on their -arms upon the field of battle, their General-in-Chief himself lying on -the ground among the living, the wounded, and the dead. Somewhere on -that hard-fought ground, Captain-Lieutenant John Marshall stretched -himself by his comrades. Washington was determined to press the attack -at break of day. But at midnight the British stole away so silently that -the Americans did not hear a sound from their retreat.[448] The -Americans lost eight officers and sixty-one privates killed, one -hundred and sixty wounded, and one hundred and thirty missing. The -British left more than two hundred and fifty dead upon the field.[449] - -Upon Charles Lee most accounts of the battle of Monmouth have placed the -brand of infamy. But John Marshall did not condemn Lee utterly. There -were, it appears, two sides of the business--the difficulty of the -ground, the mistake made by Scott, a reinforcement of the British rear, -and other incidents.[450] These appealed even to Washington when the -calm of judgment returned to him after the battle was fought and his -blazing wrath had cooled; and had Lee not sent insulting letters to the -Commander-in-Chief, it is probable that no further action would have -been taken.[451] - -Marshall had been in the fight from first to last; he had retreated -unwillingly with the other five thousand men whom Lee commanded; he was -a fighting man, always eager for the shock of arms; he cherished a -devotion to Washington which was the ruling attachment of his -life--nevertheless, Marshall felt that more was made of Lee's misconduct -than the original offense deserved. Writing as the chosen biographer of -Washington, Marshall gives both sides of this controversy.[452] - -This incident throws light upon Marshall's temperament. Other historians -in their eulogy of Washington, have lashed the memory of Lee naked -through the streets of public scorn. Marshall refuses to join the chorus -of denunciation. Instead, he states the whole case with fairness.[453] - -Three days after Monmouth, he was promoted to a full captaincy;[454] -and, as we have seen, he had been made Deputy Judge Advocate at Valley -Forge. Holding these two offices, Marshall continued his military -service. - -The alliance with the French King, followed by the American success at -Monmouth, lulled the patriots into an unwarranted feeling of security. -Everybody seemed to think the war was over. Congress became more -lethargic than ever, the States more torpid and indifferent. The British -had seized the two points commanding King's Ferry on the North River, -thus cutting the communication between the small American forces on -opposite sides of the Hudson.[455] To restore this severed connection -was important; and it was essential to arouse once more the declining -interest of the people. Washington resolved to take Stony Point, the -then well-nigh impregnable position dominating King's Ferry from the New -Jersey side. - -A body of light infantry was carefully selected from all ranks. It was -the flower of Washington's troops in health, stability, courage, and -discipline. Upon this "_élite_ of the army," says Dawson, "the safety -of the Highlands and, indirectly, that of the cause of America, were -dependent."[456] This corps of picked soldiers was intended for quick -and desperate enterprises of extra hazard. John Marshall was one of -those selected.[457] Their first notable task was to take Stony Point by -assault. Anthony Wayne was placed in command. "I have much at heart," -Washington told Wayne, in the capture of this position, "the importance -of which ... is too obvious to need explanation."[458] - -Yet even to these men on missions of such moment, supplies came tardily -and in scant quantities. Wayne's "men were almost naked."[459] - -Finally, on June 15, 1779, the time came for the storming of the fort. -It was washed on three sides by the waters of the Hudson and a marsh -separated it from the solid land on the west. Heavy guns were on the -great hill of rock; lighter batteries were placed on its slope; two rows -of abatis were farther down; and the British ships in the river -commanded almost every point of attack.[460] - -A party of Wayne's men was detailed to remove obstructions, capture the -sentries, and, in general, prepare the way for the assault by the first -detachment of the Light Infantry, which was to advance with unloaded -muskets, depending exclusively on the bayonet.[461] The fort was taken -by those assigned to make the initial attempt, Colonel Fleury being the -first to enter the stronghold. Below at the edge of the marsh waited the -major part of Wayne's little force, among whom was the future Chief -Justice of the United States. - -If the state of Wayne's nerves is an indication, we know how the young -Virginia captain felt, there in the midnight, holding himself in -readiness for the order to advance. For early in the evening Wayne thus -wrote to his brother-in-law: "This will not reach your eye until the -Writer is no mor^e--the Enclosed papers ... [will] enable [you] to -defend the Character and Support the Honor of the man who ... fell in -defense of his Country.... Attend to the Education of my Little _Son & -Daughter_--I fear that their tender Mother will not Survive this -Stroke."[462] But the British were overcome more easily than anybody had -thought possible,[463] and, though wounded, Wayne survived to give more -displays of his genuine heroism, while Providence spared John Marshall -for a no less gallant and immeasurably greater part in the making of the -American Nation.[464] - -But the brilliant exploit went for nothing. The Americans failed to take -Verplanck's Point on the eastern bank of the river and the patriot -forces were still separated. Unable to spare enough men to garrison -Stony Point permanently and since the Ferry remained under the British -guns, Washington moved his army to the Highlands. The British at once -reoccupied the abandoned fort which Wayne's men had just captured. - -A detail from the Light Infantry was placed under Major Henry Lee of -Virginia, who was instructed to watch the main forces of the enemy. -Among Lee's flying detachment was Captain John Marshall. For three weeks -this scouting expedition kept moving among the ravines, hills, and -marshes, always in close touch with the British. "At Powles Hook, a -point of land on the west side of the Hudson, immediately opposite the -town of New York, penetrating deep into the river,"[465] the enemy had -erected works and garrisoned them with several hundred men. The British -had made the Hook an island by digging a deep ditch through which the -waters of the river flowed; and otherwise had rendered their position -secure. - -The daring Lee resolved to surprise and capture the defending force, and -Washington, making sure of lines of retreat, approved the adventure. All -night of August 18, 1779, Lee's men marched stealthily among the steep -hills, passed the main body of the British army who were sleeping -soundly; and at three o'clock in the morning crossed the ditch, entered -the works, and carried away one hundred and fifty-nine prisoners, losing -in the swift, silent effort only two killed and three wounded.[466] This -audacious feat fired the spirits of the patriot forces and covered the -British with humiliation and chagrin. - -Here, except for a small incident in Arnold's invasion of Virginia, John -Marshall's active participation in actual warfare ended. He was sent -home[467] because of the expiration of the term of enlistments of the -regiments in which he had commanded and the excess of officers which -this created.[468] The Revolution dragged along; misfortune and -discouragement continued to beat upon the granite Washington. The -support of Louis XVI was a staff upon which, substantial as it was, the -people of the States leaned too heavily. Their exertions relaxed, as we -have seen; Jefferson, patriot and reformer, but not efficient as an -executive, was Governor of Virginia; and John Marshall waited in vain -for the new command which never appeared. - -On December 30, 1780, Jefferson received positive news of Arnold's -invasion.[469] He had been warned by Washington that just this event was -likely to occur;[470] but he had not summoned to the colors a single man -of the militia, probably fifty thousand of whom were available,[471] nor -taken any measures to prepare for it. Not until the hostile vessels -entered Virginia waters to disembark the invading force was General -Nelson sent to watch the enemy and call out the local militia of the -adjacent vicinity; and not until news came that the British were on -their way up the James River did the Governor summon the militia of the -neighboring counties. The Royal soldiers reached Richmond on January 4, -1781, without opposition; there Arnold burned some military factories -and munitions, and returned down the river. John Marshall hastened to -the point of danger, and was one of the small American force that -ambushed the British some distance below Westover, but that scattered in -panic at the first fire of the invaders.[472] - -Jefferson's conduct at this time and especially during the subsequent -invasion of the State has given an unhappy and undeserved coloring to -his personal character.[473] It all but led to his impeachment by the -Virginia Legislature;[474] and to this day his biographers are -needlessly explanatory and apologetic in regard to this phase of his -career. These incidents confirmed the unfortunate impressions of -Jefferson which Marshall and nearly all the Virginia officers and -soldiers had formed at Valley Forge. Very few of them afterward changed -their unfavorable opinion.[475] - -It was his experience, then, on the march, in camp, and on the -battlefield, that taught John Marshall the primary lesson of the -necessity of efficient government. Also his military life developed his -real temperament, which was essentially conservative. He had gone into -the army, as he himself declared, with "wild and enthusiastic -notions,"[476] unlike those of the true Marshall. It did not occur to -this fighting Virginia youth when, responding to Patrick Henry's call, -he marched southward under the coiled-rattlesnake flag inscribed "Don't -tread on me," that anything was needed except to drive the oppressor -into the sea. A glorious, vague "liberty" would do the rest, thought the -stripling backwoods "shirtman," as indeed almost all of those who -favored the patriot cause seemed to think.[477] - -And when in blue and buff, as an officer of the Continental army, he -joined Washington, the boyish Virginia lieutenant was still a frontier -individualist, though of the moderate type. But four years of fighting -and suffering showed him that, without a strong and practical -government, democracy cannot solve its giant problems and orderly -liberty cannot live. The ramshackle Revolutionary establishment was, he -found, no government at all. Hundreds of instances of its incredible -dissensions and criminal inefficiency faced him throughout these four -terrible years; and Marshall has recorded many of them. - -Not only did each State do as it pleased, as we have seen, but these -pompous sovereignties actually interfered in direct and fatal fashion -with the Continental army itself. For example, when the soldiers of the -line from one State happened to be in another State, the civil power of -the latter often "attempted to interfere and to discharge them, -notwithstanding the fact that they were not even citizens of that -State."[478] The mutiny of underfed, poorly clothed, unpaid troops, even -in the State lines; the yielding of Congress to their demands, which, -though just in themselves, it was perilous to grant on compulsion;[479] -the discontent of the people caused by the forcible State seizure of -supplies,--a seizure which a strong National Government could not have -surpassed in harshness,[480]--were still other illustrations of the -absolute need of an efficient central power. A few "judicious patriots" -did urge the strengthening of National authority, but, writes Marshall, -they were helpless to "correct that fatal disposition of power [by -States and Congress] which had been made by enthusiasm uninstructed by -experience."[481] Time and again Marshall describes the utter absence of -civil and military correlations and the fearful results he had felt and -witnessed while a Revolutionary officer. - -Thus it is that, in his service as a soldier in the War for our -Independence, we find the fountain-head of John Marshall's National -thinking. And every succeeding circumstance of his swift-moving and -dramatic life made plainer and clearer the lesson taught him on red -battlefield and in fetid camp. No one can really understand Marshall's -part in the building of the American Nation without going back to these -sources. For, like all living things, Marshall's constructive opinions -were not made; they grew. They were not the exclusive result of -reasoning; they were the fruit of an intense and vivid human experience -working upon a mind and character naturally cautious, constructive, and -inclined to order and authority. - - -FOOTNOTES: - -[355] It appears that, throughout the Revolution, Pennsylvania's -metropolis was noted for its luxury. An American soldier wrote in 1779: -"Philada. may answer very well for a man with his pockets well lined, -whose pursuit is idleness and dissipation. But to us who are not in the -first predicament, and who are not upon the latter errand, it is -intolerable.... A morning visit, a dinner at 5 o'clock--Tea at 8 or -9--supper and up all night is the round _die in diem_.... We have -advanced as far in luxury in the third year of our Indepeny. as the old -musty Republics of Greece and Rome did in twice as many hundreds." -(Tilghman to McHenry, Jan. 25, 1799; Steiner, 25.) - -[356] Trevelyan, iv, 279. - -[357] _Ib._, 280. - -[358] _Ib._ - -[359] The influence of Margaret Shippen in causing Arnold's treason is -now questioned by some. (See Avery, vi, 243-49.) - -[360] Trevelyan, iv, 281-82. - -[361] _Ib._, 278-80. - -[362] _Ib._, 268-69; also Marshall, i, 215. The German countrymen, -however, were loyal to the patriot cause. The Moravians at Bethlehem, -though their religion forbade them from bearing arms, in another way -served as effectually as Washington's soldiers. (See Trevelyan, iv, -298-99.) - -[363] Trevelyan, iv, 290. - -[364] The huts were fourteen by sixteen feet, and twelve soldiers -occupied each hut. (Sparks, 245.) - -[365] "The men were literally naked [Feb. 1] some of them in the fullest -extent of the word." (Von Steuben, as quoted in Kapp, 118.) - -[366] _Hist. Mag._, v, 170. - -[367] Washington to President of Congress, Dec. 23, 1777; _Writings_: -Ford, vi, 260. - -[368] Marshall, i, 213. - -[369] _Ib._, 215. - -[370] Washington to President of Congress, Dec. 23, 1777; _Writings_: -Ford, vi, 258. - -[371] "The poor soldiers were half naked, and had been half starved, -having been compelled, for weeks, to subsist on simple flour alone and -this too in a land almost literally flowing with milk and honey." -(Watson's description after visiting the camp, Watson, 63.) - -[372] Marshall (1st ed.), iii, 341. - -[373] _Hist. Mag._, v, 131. - -[374] _Ib._ - -[375] _Ib._, 132. - -[376] _Hist. Mag._, v, 132-33. - -[377] _Hist. Mag._, v, 131-32. - -[378] Trevelyan, iv, 297. - -[379] _Ib._ For putrid condition of the camp in March and April, 1778, -see Weedon, 254-55 and 288-89. - -[380] Trevelyan, iv, 298. - -[381] _Ib._ - -[382] Personal narrative; Shreve, _Mag. Amer. Hist._, Sept., 1897, 568. - -[383] Trevelyan, iv, 298. - -[384] Washington to President of Congress, Dec. 22, 1777; _Writings_: -Ford, vi, 253. - -[385] Washington to President of Congress, Dec. 23, 1777; _ib._, 257. - -[386] General Varnum to General Greene, Feb. 12, 1778, Washington MSS., -Lib. Cong., no. 21. No wonder the desertions were so great. It was not -only starvation and death but the hunger-crazed soldiers "had daily -temptations thrown out to them of the most alluring nature," by the -British and Loyalists. (Chastellux, translator's note to 51.) - -[387] Marshall, i, 227. - -[388] _Ib._ - -[389] _Hist. Mag._, v, 132. This is, probably, an exaggeration. The -British were extremely harsh, however, as is proved by the undenied -testimony of eye-witnesses and admittedly authentic documentary -evidence. For their treatment of American prisoners see Dandridge: -_American Prisoners of the Revolution_, a trustworthy compilation of -sources. For other outrages see Clark's Diary, _Proc._, N.J. Hist. Soc., -vii, 96; Moore's _Diary_, ii, 183. For the Griswold affair see Niles: -_Principles and Acts of the Revolution_, 143-44. For transportation of -captured Americans to Africa and Asia see Franklin's letter to Lord -Stormont, April 2, 1777; Franklin's _Writings_: Smyth, vii, 36-38; also -Moore's _Diary_, i, 476. For the murder of Jenny M'Crea see Marshall, i, -200, note 9, Appendix, 25; and Moore's _Diary_, i, 476; see also Miner: -_History of Wyoming_, 222-36; and British officer's letter to Countess -of Ossory, Sept. 1, 1777; _Pa. Mag. Hist. and Biog._, i, footnote to -289; and Jefferson to Governor of Detroit, July 22, 1779; _Cal. Va. St. -Prs._, i, 321. For general statement see Marshall (1st ed.), iii, 59. -These are but a few of the many similar sources that might be cited. - -[390] Trevelyan, iv, 299. - -[391] Marshall, i, 227. - -[392] John Marshall's father was also at Valley Forge during the first -weeks of the encampment and was often Field Officer of the Day. -(Weedon.) About the middle of January he left for Virginia to take -command of the newly raised State Artillery Regiment. (Memorial of -Thomas Marshall; _supra._) John Marshall's oldest brother, Thomas -Marshall, Jr., seventeen years of age, was commissioned captain in a -Virginia State Regiment at this time. (Heitman, 285.) Thus all the male -members of the Marshall family, old enough to bear arms, were officers -in the War of the Revolution. This important fact demonstrates the -careful military training given his sons by Thomas Marshall before -1775--a period when comparatively few believed that war was probable. - -[393] This was the common lot; Washington told Congress that, of the -thousands of his men at Valley Forge, "few men have more than one shirt, -many only the moiety of one and some none at all." (Washington to -President of Congress, Dec. 23, 1777; _Writings_: Ford, vi, 260.) - -[394] Slaughter, 107-08. - -[395] Howe, 266. - -[396] Slaughter, 108. - -[397] Weedon, 134; also, Heitman, 285. - -[398] _Ib._ - -[399] Description of Marshall at Valley Forge by eye-witness, in _North -American Review_ (1828), xxvi, 8. - -[400] Ninth Virginia. (Heitman, 72.) - -[401] _North American Review_ (1828), xxvi, 8. - -[402] Weedon, Feb. 8, 1778, 226-27. Washington took the severest -measures to keep officers from associating with private soldiers. - -[403] _Ib._, 227-28. - -[404] _Ib._, Jan. 5, 1778; 180. - -[405] See Washington's affecting appeal to the soldiers at Valley Forge -to keep up their spirits and courage. (Weedon, March 1, 1778, 245-46.) - -[406] Channing, ii, 559. - -[407] See Rush's anonymous letter to Henry and the correspondence -between Henry and Washington concerning the cabal. (Henry, i, 544-51.) - -[408] Marshall, i, 217. - -[409] Trevelyan, iv, 301. - -[410] _Ib._, 303-04. - -[411] "The idea that any one Man Alone can save us is too silly for any -Body but such weak Men as Duché to harbor for a Moment." (Adams to Rush, -Feb. 8, 1778; _Old Family Letters_, 11; and see Lodge: _Washington_, i, -208; also Wallace, chap. ix.) - -[412] Sparks, 252; and Marshall, i, 218. - -[413] Washington to President of Congress, Dec. 23, 1777; _Writings_: -Ford, vi, 257-65. And see Washington's comprehensive plans for the -reorganization of the entire military service. (Washington to Committee -of Congress, Jan. 28, 1778; _ib._, 300-51.) - -[414] _Hist. Mag._, v, 131. - -[415] On April 10, 1778, Ædanus Burke of South Carolina broke a quorum -and defied Congress. (Secret Journals of Congress, April 10, 11, 24, 25, -1778, i, 62; and see Hatch, 21.) - -[416] Trevelyan, iv, 291-92. - -[417] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii, -297-98. - -[418] _Ib._ - -[419] At this period and long after a State was referred to as "the -country." - -[420] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii, -297-98. - -[421] Until after Jefferson's Presidency, our statesmen often spoke of -our "empire." Jefferson used the term frequently. - -[422] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii, -301-02. - -[423] "My estate is a large one ... to wit upwards of ten thousand acres -of valuable land on the navigable parts of the James river and two -hundred negroes and not a shilling out of it is or ever was under any -incumbrance for debt." (Jefferson to Van Staphorst and Hubbard, Feb. 28, -1790; _Works_: Ford, vi, 33.) At the time of Valley Forge Jefferson's -estate was much greater, for he had sold a great deal of land since -1776. (See Jefferson to Lewis, July 29, 1787; _ib._, v, 311.) - -[424] Jefferson to Pendleton, July, 1776; _ib._, ii, 219-20. - -[425] Jefferson's _Autobiography_; _Works_: Ford, i, 57. - -[426] Tucker, i, 92 _et seq._; Randall, i, 199 _et seq._; _Works_: Ford, -ii, 310, 323, 324. - -[427] Bloodshed, however, Jefferson thought necessary. See _infra_, vol. -II, chap. I. - -[428] See vol. II of this work. - -[429] Jefferson's _Autobiography_; _Works_: Ford, i, 79. - -[430] Burnaby to Washington, April 9, 1788; _Cor. Rev._: Sparks, ii, -100-02. Washington sent no written answer to Burnaby. - -[431] See _infra_. - -[432] Washington to Banister, April 21, 1778; _Writings_: Ford, vi, -477-87. In thus trying to arouse Congress to a sense of duty, Washington -exaggerates the patience of his troops. They complained bitterly; many -officers resigned and privates deserted in large numbers. (See _supra_.) - -[433] _Ib._ - -[434] Thayer, 12. For camp sports, see Waldo's poem, _Hist. Mag._, vii, -272-74. - -[435] Lossing, ii, 595, _et seq._ - -[436] Marshall, i, 230. And see Hatch's clear account of the training -given by this officer (63). To the work of Von Steuben was due the -excellent discipline under fire at Monmouth. And see Kapp, already -cited; and Bolton, 132. Even Belcher says that our debt to Von Steuben -is as great as that to Lafayette. (Belcher, ii, 14.) - -[437] Washington to President of Congress, April 30, 1778; _Writings_: -Ford, vi, 507, and footnote to 505-06. And see Channing, iii, 292. - -[438] See Channing, iii, 286, 288; and Marshall, i, 235, 236. - -[439] Marshall, i, 237. - -[440] Sparks, 267; and Moore's _Diary_, i, 48-50. - -[441] Washington to McDougall, May 5, 1778; _Writings_: Ford, vii, 6. -Washington was advised of the treaty with the French King before it was -formally presented to Congress. - -[442] Description by Major André, who took part in this amazing -performance, reprinted in _American Historical and Literary -Curiosities_, following plate 26. And see Moore's _Diary_, ii, 52-56. - -[443] Trevelyan, iv, 376. - -[444] Marshall, i, 252. - -[445] Marshall speaks of "one thousand select men" under Wayne; -Maxwell's division was with Wayne under Lee; Marshall was in the battle, -and it seems certain that he was among Wayne's "select men" as on former -and later occasions. - -[446] Marshall, i, 252. - -[447] Lafayette to Marshall; Marshall, i, footnote to 255. - -[448] Marshall, i, 254-59. - -[449] For descriptions of the battle of Monmouth see Washington to -President of Congress, July 1, 1778; _Writings_: Ford, vii, 76-86; and -to John Augustine Washington, July 4, 1778; _ib._, 89-92. Also Marshall, -i, 251-56; Trevelyan, iv, 376-80; Irving, iii, 423-34; Sparks, 272-78; -Lossing, ii, 354-65. - -[450] Marshall, i, 251-56. - -[451] _Ib._, 257. - -[452] _Ib._, 257-58. - -[453] Girardin follows Marshall in his fair treatment of Lee. (Burk, iv, -290.) - -[454] He was promoted July 1, 1778. (Heitman, 285.) - -[455] The whole patriot army everywhere, except in the extreme south and -west, now numbered only sixteen thousand men. (Marshall, i, 306-07.) - -[456] The fullest and most accurate account of the capture of Stony -Point, and conditions immediately preceding, is given by Dawson in his -_Assault on Stony Point_. - -[457] Binney, in Dillon, iii, 315-16. The care in the selection of the -various commands of "light infantry," so often used by Washington after -the first year of the war, is well illustrated by his orders in this -case. "The officers commanding regiments," runs Washington's orders, -"will be particularly careful in the choice of the men.... The Adjutant -General is desired to pass the men ... under critical inspection, and -return all who on any account shall appear unfit for this kind of -service to their regiments, to be replaced by others whom he shall -approve." (Washington's Order Book, iii, 110-11; MS., Lib. Cong.) - -[458] Washington to Wayne (Private and Confidential), July 1, 1779; -Dawson, 18-19. - -[459] Dawson, 20. Wayne's demand for sustenance and clothing, however, -is amusing. "The Light Corps under my Command," writes Wayne, "... have -had but two days fresh Provision ... nor more than three days allowance -of Rum _in twelve days_, which article I borrowed from Gen^l McDougall -with a Promise to Replace it. I owe him Seventy five Gallons--must -therefore desire you to forward three Hod^{ds} [hogsheads] of Rum to -this place with all possible Dispatch together with a few fat sheep & -ten Head of good Cattle." (Wayne to Issuing Commissary, July 9, 1779; -_ib._, 20-21.) - -Wayne wrote to Washington concerning clothing: "I have an [word -illegible] Prejudice in favor of an Elegant Uniform & Soldierly -Appearance--... I would much rathar risque my life and Reputation at the -Head of the same men in an Attack Clothed & Appointed as I could -wish--with a Single Charge of Ammunition--than to take them as they -appear in Common with Sixty Rounds of Cartridges." (Dawson, 20-21.) - -Washington wrote in reply: "I agree perfectly with you." (_Ib._, 21.) - -[460] Marshall, i, 310. - -[461] Wayne's order of battle was as picturesque as it was specific. -Officer and private were directed "to fix a Piece of White paper in the -most Conspicuous part of his Hat or Cap ... their Arms unloaded placing -their whole Dependence on the Bay^t.... If any Soldier presumes to take -his Musket from his Shoulder or Attempt to fire or begin the battle -until Ordered by his proper Officer he shall be Instantly put to death -by the Officer next him.... Should any Soldier ... attempt to Retreat -one Single foot or Sculk in the face of danger, the Officer next to him -is Immediately to put him to death." (_Ib._, 35-38.) - -[462] Wayne to Delaney, July 15, 1779; Dawson, 46-47. - -[463] The generous and even kindly treatment which the Americans -accorded the vanquished British is in striking contrast with the -latter's treatment of Americans under similar circumstances. When the -fort was taken, the British cried, "_Mercy, mercy, dear, dear -Americans_," and not a man was injured by the victors after he ceased to -resist. (Dawson, 53; and Marshall, i, 311.) - -[464] The fort was captured so quickly that the detachment to which -Marshall was assigned had no opportunity to advance. - -[465] Marshall, i, 314. - -[466] _Ib._, 314-16. - -[467] The rolls show Marshall in active service as captain until -December 9, 1779. (Records, War Dept.) He retired from the service -February 12, 1781. (Heitman, 285.) - -[468] Binney, in Dillon, iii, 290. There often were more officers of a -State line than there were men to be officered; this was caused by -expiring enlistments of regiments. - -[469] Tucker, i, 136. - -[470] Marshall, i, 418. - -[471] _Ib._, 139. - -[472] Marshall, i, 419; Binney, in Dillon, iii, 290. - -[473] Even the frightened Virginia women were ashamed. "Such terror and -confusion you have no idea of. Governor, Council, everybody -scampering.... How dreadful the idea of an enemy passing through such a -country as ours committing enormities that fill the mind with horror and -returning exultantly without meeting one impediment to discourage them." -(Eliza Ambler to Mildred Smith, 1781 MS. Also _Atlantic Monthly_, -lxxxiv, 538-39.) Miss Ambler was amused, too, it seems. She humorously -describes a boastful man's precipitate flight and adds: "But this is not -more laughable than the accounts we have of our illustrious G-[overno]-r -[Jefferson] who, they say, took neither rest nor food for man or horse -till he reached C-[arte]-r's mountain." (_Ib._) This letter, as it -appears in the _Atlantic Monthly_, differs slightly from the manuscript, -which has been followed in this note. - -These letters were written while the laughing young Tarleton was riding -after the flying Virginia Government, of which Eliza Ambler's father was -a part. They throw peculiar light on the opinions of Marshall, who at -that time was in love with this lady's sister, whom he married two years -later. (See _infra_, chap. v.) - -[474] An inquiry into Jefferson's conduct was formally moved in the -Virginia Legislature. But the matter was not pressed and the next year -the Legislature passed a resolution of thanks for Jefferson's -"impartial, upright, and attentive Administration." (See Eckenrode's -thorough treatment of the subject in his _Revolution in Virginia_, chap. -vii. And see Tucker, i, 149-56, for able defense of Jefferson; and Dodd, -63-64; also Ambler, 37.) - -[475] Monroe, Bland, and Grayson are the only conspicuous exceptions. - -[476] Story, in Dillon, iii, 338. - -[477] This prevalent idea is well stated in one of Mrs. Carrington's -unpublished letters. "What sacrifice would not an American, or Virginian -(even) at the earliest age have made for so desireable an end--young as -I was [twelve years old when the war began] the Word Liberty so -_continually_ sounding in my ears seemed to convey an idea of everything -that was desirable on earth--true that in attaining it, I was to see -every present comfort abandoned; a charming home where peace and -prosperous fortune afforded all the elegancies of life, where nature and -art united to render our residence delightful, where my ancestors had -acquired wealth, and where my parents looked forward to days of ease and -comfort, all this was to be given up; but in infancy the love of change -is so predominant that we lose sight of consequences and are willing to -relinquish present good for the sake of novelty, this was particularly -the case with me." (Mrs. Carrington to her sister Nancy, March, 1809; -MS.; and see _infra_, chap. VIII.) - -[478] Marshall, i, 355-65. - -[479] _Ib._, 422-24. - -[480] _Ib._, 425. - -[481] Marshall, i, 425. - - - - -CHAPTER V - -MARRIAGE AND LAW BEGINNINGS - - He was always and under all circumstances an enthusiast in love. - (Mrs. Carrington, of Marshall's devotion to his wife.) - - -It was upon a night of gentle gayety in the late winter or early spring -of 1779-80 that Captain John Marshall first met Mary Ambler. When he -went back to Virginia to take charge of troops yet to be raised, he -visited his father, then commanding at the village of Yorktown.[482] -More than a year had gone by since Colonel Marshall had left his son at -Valley Forge. On this visit befell the most important circumstance of -John Marshall's private life. While he was waiting for his new command, -an event came to pass which relieved his impatience to prolong still -further his four years of active warfare and inspired him to improve -this period of enforced absence from the front, by preparing himself -for his chosen profession. - -Jacquelin Ambler had been one of Yorktown's wealthiest men, and his -house was called a "mansion." But the war had ruined him -financially;[483] and the year 1780 found the Ambler family dwelling in -humble quarters. "The small retired tenement" to which reduced -circumstances forced him to take his invalid wife and young children -stood next door to the headquarters of Colonel Thomas Marshall. The -Ambler family was under Colonel Marshall's protection, for the father's -duties as State Councillor kept him at Williamsburg.[484] But the -reverse of Jacquelin Ambler's fortunes did not make this little house -less attractive than his "mansion" had been. - -The unusual charm of his daughters rendered that modest abode very -popular. Indeed, this quality of pleasing seems to have been a common -possession of the Ambler family, and has become historic. It was this -very Jacquelin Ambler for whom Rebecca Burwell threw over Thomas -Jefferson. This Virginia belle was the love of Jefferson's youth. She -was the "Campana in die,"[485] "Belinda," "Adnileb," and "R. B." of -Jefferson's letters.[486] But Rebecca Burwell preferred Jacquelin -Ambler and became his wife.[487] The Ambler daughters inherited from -both mother and father that beauty, grace, and goodness which gave them -their extraordinary personal appeal. - -During John Marshall's visit to his father the young ladies of Yorktown -saw to it that a "ball" was given. All the officers had been invited, of -course; but none of them aroused such interest as did Captain John -Marshall of the Eleventh Virginia Regiment of the line. - -The fame of this young soldier, fresh from the war, was very bright in -Virginia. His name was on the lips of all the fair attendants of the -dance. They were in a quiver of expectancy at the prospect of meeting -the gallant captain who had fought under the great Washington and who -had proved himself a hero at Brandywine and Germantown, at Valley Forge -and Monmouth. - -Years afterwards, Eliza, the eldest of the Ambler daughters, described -the event in a letter full of color written to her sister. "We had been -accustomed to hear him [Marshall] spoken of by all as a very _paragon_," -writes Mrs. Carrington, "we had often seen letters from him fraught -with filial and paternal affection. The eldest of fifteen children, -devoted from his earliest years to his younger brothers and sisters, he -was almost idolized by them, and every line received from him was read -with rapture."[488] - -"Our expectations were raised to the highest pitch," writes the elder -sister, "and the little circle of York was on tiptoe on his arrival. Our -girls particularly were emulous who should be first introduced"; but -Mary Ambler, then only fourteen years old, and very diffident and -retiring, astonished her sister and friends by telling them that "we -were giving ourselves useless trouble; for that she, for the first time, -had made up her mind to go to the ball, though she had not even been at -dancing school, and was resolved to set her cap at him and eclipse us -all."[489] - -Great was their disappointment when finally Captain Marshall arrived. -His ungainly dress, slouch hat, and rustic bearing instantly quenched -their enthusiasm.[490] They had looked forward to seeing a handsome, -romantic figure, brilliantly appareled, and a master of all the pleasing -graces; instead they beheld a tall, loose-jointed young man, thin to -gauntness, whose clothes were hanging about him as if upon a rack, and -whose manners were awkward and timid to the point of embarrassment. No -game was he for Cupid's bow, thought these belles of old Yorktown. - -"I, expecting an Adonis, lost all desire of becoming agreeable in his -eyes when I beheld his awkward figure, unpolished manners, and total -negligence of person";[491] thus writes Eliza Ambler of the impression -made upon her by the young soldier's disheveled aspect and unimpressive -deportment. But Mary Ambler stuck to her purpose, and when John Marshall -was presented to her, both fell in love at first sight. Thus began a -lifelong romance which, in tenderness, exaltation, and constancy is -unsurpassed in the chronicle of historic affections. - -It was no longer alone the veneration for a father that kept the son in -Yorktown. Day followed day, and still the gallant captain tarried. The -unfavorable first judgment gave way to appreciation. He soon became a -favorite at every house in the village.[492] His gift of popularity was -as great, it seems, among women as among men; and at the domestic -fireside as well as in the armed camp. Everybody liked John Marshall. -There was a quality in him that inspired confidence. Those who at first -had been so disappointed in his dress and manners soon forgot both in -his wholesome charm. They found him delightfully companionable.[493] -Here was preëminently a social being, they discovered. He liked people, -and wanted people to like him. He was full of fun and hearty laughter; -and his rare good sense and sheer manliness furnished solid foundation -to his lighter qualities. - -[Illustration: PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE -DESCRIBING THEIR COURTSHIP DATED AT WASHINGTON, FEBRUARY 23, 1824 -(_Facsimile_)] - -So every door in Yorktown was thrown open to Captain John Marshall. But -in Jacquelin Ambler's house was the lodestone which drew him. April had -come and the time of blossoming. On mellow afternoons, or by candlelight -when the sun had set, the young lover spent as much time as the -proprieties would permit with Mary Ambler, telling her of the war, no -doubt; and, as her sister informs us, reading poetry by the hour.[494] -Through it all he made love as hard as he could. He wooed as ardently -and steadily as he had fought.[495] - -The young lover fascinated the entire Ambler family. "Under the slouched -hat," testifies Mary Ambler's sister, "there beamed an eye that -penetrated at one glance the inmost recesses of the human character; and -beneath the slovenly garb there dwelt a heart complete with every -virtue. From the moment he loved my sister he became truly a brother to -me.... Our whole family became attached to him, and though there was -then no certainty of his becoming allied to us, we felt a love for him -that can never cease.... There was no circumstance, however trivial, in -which we were concerned, that was not his care." - -He would "read to us from the best authors, particularly the Poets, with -so much taste and feeling, and pathos too, as to give me an idea of -their sublimity, which I should never have had an idea of. Thus did he -lose no opportunity of blending improvement with our amusements, and -thereby gave us a taste for books which probably we might never -otherwise have had."[496] - -The time had come when John Marshall must acquire a definite station in -civil life. This was especially necessary if he was to take a wife; and -married he would be, he had decided, whenever Mary Ambler should be old -enough and would consent. He followed his parents' wishes[497] and began -his preparation for the bar. He told his sweetheart of his purpose, of -course, and her family "learned [of it] with pleasure."[498] William and -Mary College, "the only public seminary of learning in the State,"[499] -was only twelve miles from Yorktown; and there the young officer -attended the law lectures of George Wythe for perhaps six weeks[500]--a -time so short that, in the opinion of the students, "those who finish -this Study [law] in a few months, either have strong natural parts or -else they know little about it."[501] Recalling a criticism of one of -Marshall's "envious contemporaries" some years later, Mrs. Carrington -says: "Allusion was made to his short stay at William and Mary, and that -he could have gained little there."[502] - -It is said also that Marshall took a course in philosophy under -President Madison, then the head of the little college and afterwards -Bishop of Virginia; but this is unlikely, for while the soldier-student -took careful notes of Wythe's lectures, there is not a word in his -notebook[503] concerning any other college activity. The faculty -consisted of five professors.[504] The college was all but deserted at -that time and closed entirely the year after John Marshall's flying -attendance.[505] - -Although before the Revolution "the Necessary Expence of each Scholar -_yearly_ ... [was] only 15 £ Currency,"[506] one of Marshall's fellow -students testifies that: "The amazing depreciation of our Currency has -raised the price of Every Article so enormously that I despair'd of my -Father's ability to support me here another year.... Board & entring -under two Professors amounts to 4000^{wt} of Tobacco."[507] - -The intercourse of students and faculty was extremely democratic. There -was a "college table" at which the students took their meals. According -to the college laws of that time, beer, toddy, and spirits and water -might be served, if desired.[508] The students were not required to wear -either coats or shoes if the weather was warm.[509] - -At a later period the students boarded at private houses in the -town.[510] Jefferson, who, several years before Marshall's short -attendance, was a student at William and Mary, describes the college and -another public building as "rude, mis-shapen piles, which, but that they -have roofs, would be taken for brick-kilns."[511] Chastellux, however, -declares that "the beauty of the edifice is surpassed [only] by the -richness of its library and that still farther, by the distinguished -merit of several of the professors," and he describes the college as "a -noble establishment ... which does honour to Virginia."[512] - -The youths attending William and Mary during Marshall's brief sojourn -were disgusted by the indifference of the people of the vicinity toward -the patriot cause. "The want of Men, Money, Provisions, & still more of -Public Virtue & Patriotism is universal--a melancholy Lethargick -disposition pervades all Ranks in this part of the Country, they appear -as if determined to struggle no more, but to 'stand still & see what the -Lord will do for them,'" wrote John Brown in July, 1780.[513] - -Mr. Wythe, the professor of law, was the life of the little institution -in this ebbing period of war-time. He established "a Moot Court, held -monthly or oftener ... Mr. Wythe & the other professors sit as Judges. -Our Audience consists of the most respectable of the Citizens, before -whom we plead our Causes, given out by Mr. Wythe Lawyer like I assure -you." The law professor also "form'd us into a Legislative Body, -Consisting of about 40 members." Wythe constituted himself Speaker of -these seedling lawmakers and took "all possible pains to instruct us in -the Rules of Parliament." These nascent Solons of old William and Mary -drew original bills, revised existing laws, debated, amended, and went -through all the performances of a legislative body.[514] - -The parent chapter of the Phi Beta Kappa Society had been instituted at -the college; and to this Marshall was immediately elected. "At a meeting -of the Society the 18 of May, 1780, Capt. John Marshall being -recommended as a gentleman who would make a worthy member of this -Society was balloted for & received."[515] This is an important date; -for it fixes with reasonable certainty the time of Marshall's entrance -at William and Mary. He was probably the oldest of all the students; his -army service made him, by far, the most interesting and notable; his -extraordinary social qualities never failed to render him popular. It -is, therefore, certain that he was made a member of Phi Beta Kappa -without much delay. He probably entered college about May 1.[516] - -At once we find the new member appointed on the society's debating team. -Two students were selected to "declaim" the question and two to "argue" -it. - -"Mr. Cabell & Mr. Peyton Short appointed to declaim the Question whether -any form of government is more favorable to our new virtue than the -Commonwealth. - -"Mr. Joseph Cabell and Mr. Marshall to argue the same. An adjournment. -William Short President. - -"At a meeting in course Saturday June y^e 3^{rd}, 1780, Mr. President -leaving y^e chair with Mr. Fitzhugh to y^e same. Mr. W^m Cabell -according to order delivered his declamation on y^e question given out. -Mr. Peyton Short, being unprepared, was silent on y^e occasion. Mr. -Marshall, a gentleman not immediately interested, argued y^e -Question."[517] - -But it was not debating on which John Marshall was intent, nor any other -college duties. He had hard work, it appears, to keep his mind on the -learned words that fell from the lips of Mr. Wythe; for on the inside -cover and opposite page of the book in which he made notes of Wythe's -law lectures,[518] we find in John Marshall's handwriting the words, -"Miss Maria Ambler"; and again "Miss M. Ambler"; and still again, this -time upside down, "Miss M. Ambler--J. Marshall"; and "John Marshall, -Miss Polly Am."; and "John, Maria"; and "John Marshall, Miss Maria"; and -"Molly Ambler"; and below this once more, "Miss M. Ambler"; on the -corner of the page where the notes of the first lecture are recorded is -again inscribed in large, bold letters the magic word, "Ambler."[519] - -Jacquelin Ambler had been made Treasurer of State, and, early in June, -1780, the family removed from Yorktown to Richmond, stopping for a day -or two in Williamsburg. While there "a ball was ... given ... by certain -gentlemen in compliment ... 'to the Misses Amblers.'" Eliza Ambler -describes the incidents of this social event. The affair was "simple and -frugal as to its viands," she writes, "but of the brilliancy of the -company too much cannot be said; it consisted of more Beauty and -Elegance than I had ever witnessed before.... I was transported with -delight." Yet she could not "treat ... the prime mover in this civility -with common good manners.... His more successful friend Marshall, was -devoted to my sister."[520] - -This "ball" ended John Marshall's college studies; the lure of Mary -Ambler was greater than that of learning to the none too studious -captain. The abrupt ending[521] of the notes he was making of Mr. -Wythe's lectures, in the midst of the course, otherwise so inexplicable, -was caused by her two days' sojourn in the college town. Forthwith he -followed to Richmond, where, for two weeks he gayly played the part of -the head of the family (acted "Pa," as Marshall quaintly expresses it), -apparently in Jacquelin Ambler's absence.[522] - -Although he had scarcely begun his studies at William and Mary; although -his previous instruction by professional teachers was meager and -fragmentary; and although his father could well afford the small expense -of maintaining him at Williamsburg long enough for him to secure at -least a moderate education, John Marshall never returned to -college.[523] No more lectures of Professor Wythe for the young lover. -He would begin his professional career at once and make ready for the -supreme event that filled all his thoughts. So while in Richmond he -secured a license to practice law. Jefferson was then Governor, and it -was he who signed the license to the youth who was to become his -greatest antagonist. Marshall then went to Fauquier County, and there, -on August 28, 1780, was admitted to the bar. "John Marshall, Gent., -produced a license from his Excellency the Governor to practice law and -took the oaths prescribed by act of Assembly," runs the entry in the -record.[524] - -He waited for the recruiting of the new troops he was to command, and -held himself in readiness to take the field, as indeed he rushed to do -without orders when Arnold's invasion came. But the new troops never -were raised and Marshall finally left the service. "I continued in the -army until the year 1781," he tells us, "when, being without a command, -I resigned my commission in the interval between the invasion of -Virginia by Arnold and Phillips."[525] - -During this season of inaction he resolved to be inoculated against the -smallpox. This was another effect which falling in love had on the young -soldier; for he could, had he wished, have had this done more than once -while with Washington's army.[526] He would now risk his health no -longer. But the laws of Virginia made the new method of treating -smallpox almost impossible.[527] So away on foot[528] went John Marshall -to Philadelphia to be made proof against this disfiguring malady. - -According to Marshall's own account, he covered the ground at an amazing -pace, averaging thirty-five miles a day; but when he arrived, so -disreputable did he appear that the tavern refused to take him in.[529] -Long-bearded and slovenly clothed, with battered hat and uncouth -manners, he gave the unfavorable first impression which the same causes -so often produced throughout his life. This is not to be wondered at, -for, writing twenty years afterward, when Marshall as Chief Justice was -at the height of his career, his sister-in-law testifies that his "total -negligence of person ... often produced a blush on her [Marshall's -wife's] cheek."[530] But he finally secured lodgings, was inoculated, -and, made secure from the attacks of the dreaded scourge, back he fared -to Virginia and Mary Ambler. - -And Marshall made love as he made war, with all his might. A very -hurricane of a lover he must have been; for many years afterward he -declared to his wife's sister that "he looked with astonishment at the -present race of lovers, so totally unlike what he had been -himself."[531] In a touching letter to his wife, written almost half a -century later, Marshall thus recalls the incidents of his courtship:-- - -"I begin with the ball at York, and with the dinner on the fish at your -house the next day: I then retrace my visit to York, our splendid -assembly at the Palace[532] in Williamsburg, my visit to Richmond where -I acted Pa for a fortnight, my return the ensuing fall and the very -welcome reception you gave me on your arrival from Dover, our little -tiffs & makings up, my feelings while Major Dick[533] was courting you, -my trip to the cottage,[534] the lock of hair, my visit again to -Richmond the ensuing fall, and all the thousand indescribable but deeply -affecting instances of your affection or coldness which constituted for -a time the happiness or misery of my life and will always be recollected -with a degree of interest which can never be lost while recollection -remains."[535] - -When he left the army in 1781, Marshall, although a member of the bar, -found no legal business to do.[536] He probably alternated between the -Oak Hill plantation in Fauquier County, where his help was sadly needed, -and Richmond, where the supreme attraction drew him. Thus another year -wore on. In this interval John Marshall engaged in politics, as was the -custom of young gentlemen of standing and ambition; and in the fall of -1782 was elected to the House of Delegates from Fauquier County.[537] -This honor was a material help, not only in his career, but in his suit -for the hand of Mary Ambler. - -Also, membership in the Legislature required him to be, where his heart -was, in Richmond, and not two months had John Marshall been in the -Capital as a member of Virginia's Legislature when he was married. "In -January [3d] 1783," writes Marshall, "I intermarried with Mary Willis -Ambler, the second daughter of Mr. Jacquelin Ambler, then Treasurer of -Virginia, who was the third son of Mr. Richard Ambler, a gentleman who -had migrated from England, and settled at York Town, in Virginia."[538] - -The Ambler abode in Richmond was not a romantic place for the wedding. -The primitive town was so small that when the Ambler family reached it -Eliza exclaimed, "_where_ we are to lay our weary heads Heaven knows!" -And she describes the house her father rented as "a little dwelling" so -small that "our whole family can scarcely stand up altogether in it"; -but Jacquelin Ambler took it because, poor as it was, it was "the only -decent tenement on the hill."[539] - -The elder Ambler sister thus pictures the Richmond of 1780: "This little -town is made up of Scotch factors who inhabit small tenements scattered -here and there from the river to the hill. Some of them look, as Colonel -[Thomas] Marshall has observed, as if the poor Caledonians had brought -them over on their backs, the weakest of whom being glad enough to stop -at the bottom of the hill, others a little stronger proceeding higher, -whilst a few of the stoutest and the boldest reached the summit."[540] -Eight years after the Amblers moved to Richmond, Jefferson wrote: "The -town below Shockoe creek is so deserted you cannot get a person to live -in a house there rent free."[541] - -But Mary's cousin, John Ambler, who, at twenty-one years of age, found -himself "one of the richest men in the State of Virginia,"[542] solved -the difficulty by offering his country seat for the wedding.[543] Mary -Ambler was only seventeen when she became the young lawyer's bride,[544] -and John Marshall was a little more than ten years older. After the -bridegroom had paid the minister his fee, "he had but one solitary -guinea left."[545] - -This does not mean that John Marshall was without resources, but it -indicates the scarcity of ready money in Virginia at the close of the -war. Indeed, Marshall's father, while not yet the wealthy man he -afterwards became,[546] had, as we have seen, already acquired very -considerable property. He owned at this time at least two thousand acres -in Fauquier County;[547] and twenty-two negroes, nine of them tithable -(sixteen years old), twelve horses, and twenty-two head of cattle.[548] - -When John Marshall married Miss Ambler, his father gave him one negro -and three horses.[549] The following year (1784) the Tithable Book shows -but five tithable negroes, eight young negroes, eight horses, and -eighteen head of cattle in Thomas Marshall's name. He evidently sold his -other slaves and personal property or took them with him to Kentucky. So -it is likely that the slaves, horses, and cattle left behind were given -to his son, together with a part of Thomas Marshall's Fauquier County -farm.[550] - -During the Revolution Thomas Marshall was, like most other Continental -officers, in sore need of money. He tried to sell his land to Washington -for cash. Washington was anxious to buy "Lands in my own Neck at -(almost) any price ... in ye way of Barter ... for Negroes ... or ... -for any thing else (except Breeding Mares and Stock)." But he could not -pay money. He estimated, by memory, Thomas Marshall's land at £3000, at -a time when, because of depreciated money and inflated prices, "a Barrl. -of Corn which used to sell for 10/ will now fetch 40--when a Barl. of -Porke that formerly could be had for £3 sells for £15." So Washington -in 1778 thought that "Marshall is not a necessitous man." When it came -to trading, the father of his country was keen and suspicious, and he -feared, it would seem, that his boyhood friend and comrade in arms would -"practice every deception in his power in order to work me ... up to his -price."[551] - -Soon after John Marshall met Mary Ambler at the "ball" at Yorktown, and -just before he went to William and Mary College, his father sold this -very land that Washington had refused to purchase. On March 28, 1780, -Thomas Marshall conveyed to Major Thomas Massey [Massie] one thousand -acres in Fauquier County for "thirty thousand pounds Currency."[552] -This was a part of the seventeen hundred acres for which the elder -Marshall had paid "nine hundred and twelve pounds ten shillings" seven -years before.[553] The change shows the startling depreciation of -Virginia currency as well as Continental paper, both of which in 1780 -had reached a very low point and were rapidly going down.[554] - -[Illustration: _Mary Ambler Marshall_] - -It reveals, too, the Marshall family's extreme need of cash, a want -sorely felt by nearly everybody at this period; and the familiar fact -that ownership of land did not mean the ready command of money. The year -after John Marshall's marriage he wrote to James Monroe: "I do not know -what to say to your scheme of selling out. If you can execute it you -will have made a very capital sum, if you can retain your lands you -will be poor during life unless you remove to the western country, but -you have secured for posterity an immense fortune"; and Marshall tells -Monroe that the latter can avail himself of the knowledge of Kentucky -lands possessed by the members of the Marshall family who were on the -ground.[555] - -Writing twenty years later of economic conditions during the period now -under review, Marshall says: "Real property was scarcely vendible; and -sales of any article for ready money could be made only at a ruinous -loss.... In every quarter were found those who asserted it to be -impossible for the people to pay their public or private debts."[556] - -So, although his father was a very well-to-do man when John Marshall -began married life, he had little or no ready money, and the son could -not expect much immediate paternal assistance. Thomas Marshall had to -look out for the bringing-up of a large number of other children and to -consider their future; and it is this fact which probably induced him to -seek fortune anew in the Kentucky wilderness after he was fifty years of -age. Legend has it that Thomas Marshall made his venture on Washington's -advice. At any rate, he settled, permanently, in Kentucky in the fall of -1783.[557] - -The fledgling lawyer evidently expected to start upon a legal career in -the county of his birth; but immediately after marrying Miss Ambler, he -established himself at Richmond, where her family lived, and there began -the practice of the law. While his marriage into the Ambler family was -inspired exclusively by an all-absorbing love, the alliance was a -fortunate one for John Marshall from the practical point of view. It -gave him the support of a powerful State official and one of the -best-liked men in all Virginia. A favor asked by Jacquelin Ambler was -always granted if possible; and his recommendation of any one was final. -The Ambler household soon became the most attractive in Richmond, as it -had been in Yorktown; and Marshall's marriage to Mary Ambler gave him a -social standing which, in the Virginia of that day, was a very great -asset in business and politics. - -The house to which he took his bride was a tiny one-story affair of -wood, with only two rooms; the best house the Amblers themselves could -secure, as we have seen, was so small that the "whole family" could -scarcely crowd into it. Three years before John Marshall and his young -wife set up housekeeping, Richmond could "scarce afford one comfort in -life."[558] According to Mrs. Carrington the dwelling-houses had no -curtains for the windows.[559] The streets were open spaces of earth, -unpaved and without sidewalks. Many years after Marshall established -himself at the new and raw Virginia Capital, Main Street was still -unpaved, deep with dust when dry and so muddy during a rainy season that -wagons sank up to the axles. Footways had been laid only at intervals -along the town's chief thoroughfare; and piles of ashes and cinders were -made to serve as street-crossings, from which, if one misstepped on a -dark and rainy night, he found himself deep in the mire. A small stream -flowed diagonally across Main Street, flooding the surface; and the -street itself ended in gullies and swamps.[560] In 1783 the little town -was, of course, still more primitive. - -There were no brick or stone buildings in Richmond when Marshall was -married. The Capitol, itself, was an ugly structure--"a mere wooden -barn"--on an unlovely site at the foot of a hill.[561] The private -dwellings, scattered about, were the poor, mean, little wooden houses -already described by Eliza Ambler. - -Trade was in the hands of British merchants who managed to retain their -commercial hold in spite of the Revolution.[562] Rough, heavy wagons -drawn by four or six horses brought in the produce of the country, which -included "deer and bear skins, furs, ginseng, snake-root," and even -"dried rattlesnakes ... used to make a viper broth for consumptive -patients."[563] These clumsy vehicles were sometimes a month in covering -less than two hundred miles.[564] Specie was the money chiefly used in -the back country and the frontier tradesmen made remittances to Richmond -by placing a "bag of gold or silver in the centre of a cask of melted -wax or tallow ... or [in a] bale of hemp."[565] - -There was but one church building and attendance was scanty and -infrequent.[566] The principal amusement was card-playing, in which -everybody indulged,[567] and drinking was the common practice.[568] The -town sustained but one tavern which was kept by a Neapolitan named -Farmicola. This hostelry had two large rooms downstairs and two above. -The beds were under the roof, packed closely together and unseparated by -partitions. When the Legislature met, the inn was crowded; and -"Generals, Colonels, Captains, Senators, Assembly-men, Judges, Doctors, -Clerks, and crowds of Gentlemen of every weight and calibre and every -hue of dress, sat altogether about the fire, drinking, smoking, -singing, and talking ribaldry."[569] - -Such were conditions in the town of Richmond when John Marshall hazarded -his adventure into the legal profession there in 1783. But it was the -seat of the State Government, and the place where the General Court of -Appeals and the High Court of Chancery were located. Yet small, poor, -and mean as was the Virginia Capital of that day, not even Philadelphia, -New York, or Boston could boast of a more brilliant bar. - -Randolph and Wickham, Innes and Ronald, Campbell and Call, and others -whose distinction has made the bar of the Old Dominion historic, -practiced at Richmond. And the court around which this extraordinary -constellation gathered was equally eminent. Pendleton, whose intellect -and industry more than supplied early defects in education, was -president of the Court of Appeals; Wythe was one of the judges of the -High Court of Chancery, of which he afterwards became sole chancellor; -Paul Carrington and others of almost equal stature sat with Pendleton on -the Supreme Bench. Later on appeared the erudite, able, and commanding -Roane, who, long afterwards, when Marshall came into his own, was to be -his most formidable antagonist in the clash of courts. - -Among such lawyers and before a court of this high quality the young -attorney from the backwoods of Fauquier County began his struggle for a -share of legal business. He had practically no equipment except his -intellect, his integrity, and his gift for inspiring confidence and -friendship. Of learning in the law, he had almost none at all. He had -read Blackstone, although not thoroughly;[570] but the only legal -training that Marshall had received was acquired during his few weeks at -William and Mary College. And in this romantic interval, as we have -seen, he was thinking a good deal more about Mary Ambler than about -preparing himself for his career. - -We know exactly to which of Wythe's lectures Marshall had listened; for -he took notes of them. He procured a thick, blank book strongly bound in -calf. In this he wrote in a large, firm hand, at the top of the page, -the topics of lectures which Wythe had announced he would give, leaving -after each headline several pages for notes.[571] Since these notes are -a full record of Marshall's only formal instruction in the law, a -complete list of the subjects, together with the space allotted to each, -is as important as it is interesting. - -On the subject of Abatement he wrote three pages; on Accounts, two -pages; on Accord and Satisfaction, one page; Actions in General, one and -a half pages; Actions Local and Transitory, one fourth page; Actions Qui -Tam, one and one fourth pages; Actions on the Case, three and one half -pages; Agreements, three pages; Annuity and Rent Charge, two pages; -Arbitrament and Award, one and one half pages; Assault and Battery, two -thirds of a page; Assignment, one half page; Assumpsit, one and a half -pages; Attachment, one half page; Audita Querela, one fourth page; -Authority, one fourth page; Bail in Civil Causes, one half page; Bail in -Criminal Causes, one and two thirds pages; Bailment, two pages; Bargain -and Sale, one half page; Baron and Feme, four pages; Bastardy, three -quarters page; Bills of Sale, one half page; Bills of Exceptions, one -half page; Burglary, one page; Carriers, one page; Certiorari, one half -page; Commitments, one half page; Condition, five and one half pages; -Coparceners, one and one half pages; Costs, one and one fourth pages; -Covenant, three pages; Curtesy of England, one half page; Damages, one -and one half pages; Debt, one and one half pages; Descent, one and one -half pages; Detinue, one half page; Devises, six and one half pages; -Disseisin, two lines; Distress, one and two thirds pages; Dower, two -pages; Duress, one third page; Ejectment, two and two thirds pages; -Election, two thirds page; Error, two and one third pages; Escape in -Civil Cases, one and one fifth pages; Estates in Fee Simple, three -fourths page; Estate for Life and Occupancy, one and four fifths pages; -Evidence, four pages, two lines; Execution, one and five sixths pages; -Executors and Administrators, eleven pages; Extinguishment, two thirds -page; Extortion, one half page; Felony, three and one sixth pages; -Forcible Entry and Detainer, three fourths page; Forgery, three pages; -Forfeiture, two and four fifths pages; Fraud, three pages, one line; -Grants, three and three fourths pages; Guardian, two and five sixths -pages; Heir and Ancestor, five pages, two lines; Idiots and Lunatics, -three pages; Indictments, four pages, three lines; Infancy and Age, nine -and one half pages; Information, one and one fifth pages; Injunction, -one and two thirds pages; Inns and Innkeepers, two and two thirds pages; -Joint Tenants and Tenants in Common, nine and one sixth pages; Jointure, -three pages. - -We find six pages he had reserved for notes on the subject of Juries -left blank, and two blank pages follow the caption, "Justice of the -Peace." But he made seventeen and two thirds pages of notes on the -subjects of Leases and Terms for Years, and twelve and one half pages on -the subject of Legacies. This ended his formal legal studies; for he -made no notes under the remaining lecture subjects.[572] - -Not an ideal preparation to attract clients, we must admit, nor to serve -them well when he got them. But slender and elementary as was his store -of learning, his apparel, manners, and habits were even less likely to -bring business to this meagerly equipped young advocate. - -Marshall made practically no money as a lawyer during his first year in -Richmond. Most of his slender income seems to have been from his salary -as a member of the Legislature.[573] He enters in his Account Book in -1783 (where it begins) several receipts "by my civil list warrants," -and several others, "Rec^d. from Treasury." Only four fees are entered -for the whole year--one for three pounds, another for two pounds, eleven -shillings, one for two pounds, ten shillings, and a fourth for two -pounds, eight shillings. - -On the contrary, he paid one pound, two shillings, sixpence for "advice -fee given the attorney for opinion on surveyors fees." He bought "one -pair Spectacles" for three shillings and ninepence. His sociable nature -is revealed at the beginning of his career by entries, "won at Whist -24-1-4" and "won at Whist 22/"; and again "At Backgammon 30/-1-10." Also -the reverse entry, "Lost at Whist £3 14/."[574] - -The cost of living in Richmond at the close of the Revolution is shown -by numerous entries. Thirty-six bushels of oats cost Marshall three -pounds, ten shillings, sixpence. He paid one pound for "one pair -stockings"; and one pound, eighteen shillings, sixpence for a hat. In -1783 a tailor charged him one pound, eight shillings, sixpence for -"making a Coat." He enters "stockings for P.[olly][575] 6 dollars." A -stove "Dutch Oven" cost fourteen shillings and eightpence; and "150 -bushels coal for self 7-10" (seven pounds, ten shillings). - -In October of the year of his marriage he paid six shillings for wine -and "For rum £9-15." His entries for household expenditures for these -months give an idea of the housekeeping: "Given Polly 6 dollars -£4-10-6; ... a coffe pot 4/; 1 yd. Gauze 3/6; 2 Sugar boxes £1-7-6; -Candlestick &c. 3/6 1 y^{d}. Linnen for P. 2/6; 2 pieces of bobbin 1/6; -Tea pot 3/; Edging 3/6; Sugar pot 1/6; Milk 1/; Thimble 4/2; -Irons 9/,... Tea 20/."[576] - -The entries in Marshall's Account Book for the first year and a half of -his married life are indiscriminately and poorly made, without dates of -receipts and expenditures. Then follows a period up to June, 1785, where -the days of the month are stated. Then come entries without dates; and -later, the dates sometimes are given and sometimes not. Marshall was as -negligent in his bookkeeping as he was in his dress. Entries in the -notebook show on their face his distaste for such details. The Account -Book covers a period of twelve years, from 1783 to 1795. - -He was exceedingly miscellaneous in his expenses. On January 14, 1784, -he enters as items of outlay: "Whist 30/" and "Whist 12/," "cow -£3-12-8" and "poker 6/," "To Parson 30/." This date is jammed in, -plainly an afterthought, and no more dates are specified until June 7. -Other characteristic entries at this time are, on one day, "Turkeys 12/ -Wood 24/ Whist £18"; and on another day, "Beef 26/8--Backgammon £6." An -important entry, undated, is, "Paid the University in the hands of Mr. -Tazewell for Col^o Marshall as Surveyor of Fayette County 100" -(pounds).[577] - -On July 5, 1784, he enters among receipts "to my service in the Assembly -34-4" (pounds and shillings); and among his expenses for June 22 of that -year, he enters "lost at Whist £19" and on the 26th, "Col^o [James] -Monroe & self at the Play 1-10"[578] (one pound, ten shillings). A week -later the theater again cost him twelve shillings; and on the third he -enters an outlay "to one Quarter cask wine 14" (pounds, or about fifty -dollars Virginia currency). On the same day appears a curious entry of -"to the play 13/" and "Pd for Col^o Monroe £16-16." He was lucky at -whist this month, for there are two entries during July, "won at whist -£10"; and again, "won at whist 4-6" (four pounds, six shillings). He -contributes to St. John's Church one pound, eight shillings. During this -month their first child was born to the young couple;[579] and there are -various entries for the immediate expenses of the event amounting to -thirteen pounds, four shillings, and threepence. The child was -christened August 31 and Marshall enters, "To house for christening 12/ -do. 2/6." - -The Account Book discloses his diversified generosity. Preacher, -horse-race, church, festival, card-game, or "ball" found John Marshall -equally sympathetic in his contributions. He was looking for business -from all classes in exactly the same way that young lawyers of our own -day pursue that object. Also, he was, by nature, extremely sociable and -generous. In Marshall's time the preachers bet on horses and were -pleasant persons at balls. So it was entirely appropriate that the young -Richmond attorney should enter, almost at the same time, "to Mr. -Buchanan 5" (pounds)[580] and "to my subscription for race £4-4";[581] -"Saint Taminy 11 Dollars--3-6"[582] (three pounds, six shillings); and -still again, "paid my subscription to the ball 20/-1"; and later, -"expenses at St. John's [church] 2-3" (pounds and shillings). - -Marshall bought several slaves. On July 1, 1784, he enters, "Paid for -Ben 90-4"[583] (ninety pounds, four shillings). And in August of that -year, "paid for two Negroes £30" and "In part for two servants £20." -And in September, "Paid for servants £25," and on November 23, "Kate & -Evan £63." His next purchase of a slave was three years later, when he -enters, May 18, 1787, "Paid for a woman bought in Gloster £55." - -Shoeing two horses in 1784 cost Marshall eight shillings; and a hat for -his wife cost three pounds. For a bed-tick he paid two pounds, nine -shillings. We can get some idea of the price of labor by the following -entry: "Pd. Mr. Anderson for plaistering the house £10-2." Since he was -still living in his little rented cottage, this entry would signify that -it cost him a little more than thirty-five dollars, Virginia currency, -to plaster two rooms in Richmond, in 1784. Possibly this might equal -from seven to ten dollars in present-day money. He bought his first -furniture on credit, it appears, for in the second year of his married -life he enters, December "31st P^d. M^r. Mason in part for furniture 10" -(pounds). - -At the end of the year, "Pd balance of my rent 43-13" (pounds and -shillings). During 1784, his third year as a lawyer, his fees steadily -increased, most of them being about two pounds, though he received an -occasional fee of from five to nine pounds. His largest single fee -during this year was "From Mr. Stead 1 fee 24" (pounds). - -He mixed fun with his business and politics. On February 24, 1784, he -writes to James Monroe that public money due the latter could not be -secured. "The exertions of the Treasurer & of your other friends have -been ineffectual. There is not one shilling in the Treasury & the keeper -of it could not borrow one on the faith of the government." Marshall -confides to Monroe that he himself is "pressed for money," and adds that -Monroe's "old Land Lady Mrs. Shera begins now to be a little -clamorous.... I shall be obliged I apprehend to negotiate your warrants -at last at a discount. I have kept them up this long in hopes of drawing -Money for them from the Treasury." - -But despite financial embarrassment and the dull season, Marshall was -full of the gossip of a convivial young man. - -"The excessive cold weather," writes Marshall, "has operated like magic -on our youth. They feel the necessity of artificial heat & quite wearied -with lying alone, are all treading the broad road to Matrimony. Little -Steward (could you believe it?) will be married on Thursday to Kitty -Haie & Mr. Dunn will bear off your old acquaintance Miss Shera. - -"Tabby Eppes has grown quite fat and buxom, her charms are renovated & -to see her & to love her are now synonimous terms. She has within these -six weeks seen in her train at least a score of Military & Civil -characters. Carrington, Young, Selden, Wright (a merchant), & Foster -Webb have alternately bow'd before her & been discarded. - -"Carrington 'tis said has drawn off his forces in order to refresh them -& has march'd up to Cumberland where he will in all human probability be -reinforced with the dignified character of Legislator. Webb has returned -to the charge & the many think from their similitude of manners & -appetites that they were certainly designed for each other. - -"The other Tabby is in high spirits over the success of her antique -sister & firmly thinks her time will come next, she looks quite spruce & -speaks of Matrimony as of a good which she yet means to experience. -Lomax is in his county. Smith is said to be electioneering. Nelson has -not yet come to the board. Randolph is here and well.... Farewell, I am -your J. Marshall."[584] - -Small as were the comforts of the Richmond of that time, the charm, -gayety, and hospitality of its inhabitants made life delightful. A young -foreigner from Switzerland found it so. Albert Gallatin, who one day was -to be so large a factor in American public life, came to Richmond in -1784, when he was twenty-two years old. He found the hospitality of the -town with "no parallel anywhere within the circle of my travels.... -Every one with whom I became acquainted," says Gallatin, "appeared to -take an interest in the young stranger. I was only the interpreter of a -gentleman, the agent of a foreign house that had a large claim for -advances to the State.... Every one encouraged me and was disposed to -promote my success in life.... John Marshall, who, though but a young -lawyer in 1783, was almost at the head of the bar in 1786, offered to -take me in his office without a fee, and assured me that I would become -a distinguished lawyer."[585] - -During his second year in Richmond, Marshall's practice showed a -reasonable increase. He did not confine his legal activities to the -Capital, for in February we find thirteen fees aggregating thirty-three -pounds, twelve shillings, "Rec^d. in Fauquier" County. The accounts -during this year were fairly well kept, considering that happy-go-lucky -John Marshall was the bookkeeper. Even the days of the month for -receipts and expenditures are often given. He starts out with active -social and public contributions. On January 18, 1785, he enters, "my -subscription to Assemblies [balls] 4-4" (pounds and shillings), and -"Jan. 29 Annual subscription for Library 1-8" (pound, shillings). - -On January 25, 1785, he enters, "laid out in purchasing Certificates -35-4-10." And again, July 4, "Military Certificates pd for self £13-10-2 -at 4 for one £3-7-7. Interest for 3 years £2-8 9." A similar entry is -made of purchases made for his father; on the margin is written, "pd -commissioners." - -[Illustration: _Richmond in 1800_] - -He made his first purchase of books in January, 1785, to the amount of -"£4-12/." He was seized with an uncommon impulse for books this year, it -appears. On February 10 he enters, "laid out in books £9-10-6." He -bought eight shillings' worth of pamphlets in April. On May 5, Marshall -paid "For Mason's Poems" nine shillings. On May 14, "books 17/-8" and -May 19, "book 5/6" and "Blackstones Commentaries[586] 36/," and May -20, "Books 6/." On May 25, there is a curious entry for "Bringing books -in stage 25/." On June 24, he purchased "Blair's Lectures" for one -pound, ten shillings; and on the 2d of August, a "Book case" cost him -six pounds, twelve shillings. Again, on September 8, Marshall's entries -show, "books £1-6," and on October 8, "Kaim's Principles of Equity 1-4" -(one pound, four shillings). Again in the same month he enters, "books -£6-12," and "Spirit of Law" (undoubtedly Montesquieu's essay), twelve -shillings. - -But, in general, his book-buying was moderate during these formative -years as a lawyer. While it is difficult to learn exactly what -literature Marshall indulged in, besides novels and poetry, we know that -he had "Dionysius Longinus on the Sublime"; the "Works of Nicholas -Machiavel," in four volumes; "The History and Proceedings of the House -of Lords from the Restoration," in six volumes; the "Life of the Earl of -Clarendon, Lord High Chancellor of England"; the "Works of C. -Churchill--Poems and Sermons on Lord's Prayer"; and the "Letters of Lord -Chesterfield to his son." A curious and entertaining book was a -condensed cyclopædia of law and business entitled "Lex Mercatoria -Rediviva or The Merchant's Directory," on the title-page of which is -written in his early handwriting, "John Marshall Richmond."[587] -Marshall also had an English translation of "The Orations of Æschines -and Demosthenes on the Crown."[588] - -Marshall's wine bills were very moderate for those days, although as -heavy as a young lawyer's resources could bear. On January 31, 1785, he -bought fourteen shillings' worth of wine; and two and a half months -later he paid twenty-six pounds and ten shillings "For Wine"; and the -same day, "beer 4d," and the next day, "Gin 30/." On June 14 of the same -year he enters, "punch 2/6," the next day, "punch 3/," and on the next -day, "punch 6/."[589] - -Early in this year Marshall's father, now in Kentucky and with opulent -prospects before him, gave his favorite son eight hundred and -twenty-four acres of the best land in Fauquier County.[590] So the -rising Richmond attorney was in comfortable circumstances. He was -becoming a man of substance and property; and this condition was -reflected in his contributions to various Richmond social and religious -enterprises. - -He again contributed two pounds to "S^t. Taminy's" on May 9, 1785, and -the same day paid six pounds, six shillings to "My club at -Farmicolas."[591] On May 16 he paid thirty shillings for a "Ball" and -nine shillings for "music"; and May 25 he enters, "Jockie Club 4-4" -(pounds and shillings). On July 5 he spent six shillings more at the -"Club"; and the next month he again enters a contribution to "S^t. Johns -[Episcopal Church] £1-16." He was an enthusiastic Mason, as we shall -see; and on September 13, 1785, he enters, "p^d. Mason's Ball -subscription for 10" (pounds). October 15 he gives eight pounds and four -shillings for an "Episcopal Meeting"; and the next month (November 2, -1785) subscribes eighteen shillings "to a ball." And at the end of the -year (December 23, 1785) he enters his "Subscription to Richmond Assem. -3" (pounds). - -Marshall's practice during his third year at the Richmond bar grew -normally. The largest single fee received during this year (1785) was -thirty-five pounds, while another fee of twenty pounds, and still -another of fourteen pounds, mark the nearest approaches to this -high-water mark. He had by now in Richmond two negroes (tithable), two -horses, and twelve head of cattle.[592] - -He was elected City Recorder during this year; and it was to the efforts -of Marshall, in promoting a lottery for the purpose, that the Masonic -Hall was built in the ambitious town.[593] - -The young lawyer had deepened the affection of his wife's family which -he had won in Yorktown. Two years after his marriage the first husband -of his wife's sister, Eliza, died; and, records the sorrowing young -widow, "my Father ... dispatched ... my darling Brother Marshall to -bring me." Again the bereaved Eliza tells of how she was "conducted by -my good brother Marshall who lost no time" about this errand of comfort -and sympathy.[594] - -February 15, 1786, he enters an expense of twelve pounds "for moving my -office" which he had painted in April at a cost of two pounds and -seventeen shillings. This year he contributed to festivities and social -events as usual. In addition to his subscriptions to balls, assemblies, -and clubs, we find that on May 22, 1786, he paid nine shillings for a -"Barbecue," and during the next month, "barbecue 7/" and still again, -"barbecue 6/." On June 15, he "paid for Wine 7-7-6," and on the 26th, -"corporation dinner 2-2-6." In September, 1786, his doctor's bills were -very high. On the 22d of that month he paid nearly forty-five pounds -for the services of three physicians.[595] - -Among the books purchased was "Blair's sermons" which cost him one pound -and four shillings.[596] In July he again "P^d. for S^t. Taminy's feast -2" (pounds). The expense of traveling is shown by several entries, such -as, "Expenses up & down to & from Fauquier 4-12" (four pounds, twelve -shillings); and "Expenses going to Gloster &c 5" (pounds); "expenses -going to W^{ms}burg 7" (pounds); and again, "expenses going to and -returning from Winchester 15" (pounds); and still again, "expenses going -to W^{ms}burg 7" (pounds). On November 19, Marshall enters, "For quarter -cask of wine 12-10" (twelve pounds and ten shillings). On this date we -find, "To Barber 18" (shillings)--an entry which is as rare as the -expenses to the theater are frequent. - -He appears to have bought a house during this year (1786) and enters on -October 7, 1786, "P^d. Mr. B. Lewis in part for his house £70 cash & 5£ -in an order in favor of James Taylor----75"; and November 19, 1786, -"Paid Mr. B. Lewis in part for house 50" (pounds); and in December he -again "P^d. Mr. Lewis in part for house 27-4" (twenty-seven pounds, four -shillings); and (November 19) "P^d. Mr. Lewis 16" (pounds); and on the -28th, "Paid Mr. Lewis in full 26-17-1 1/4." - -In 1786, the Legislature elected Edmund Randolph Governor; and, on -November 10, 1786, Randolph advertised that "The General Assembly having -appointed me to an office incompatible with the further pursuit of my -profession, I beg leave to inform my clients that John Marshall Esq. -will succeed to my business in General &c."[597] - -At the end of this year, for the first time, Marshall adds up his -receipts and expenditures, as follows: "Received in the Year 1786 -according to the foregoing accounts 508-4-10." And on the opposite page -he enters[598]-- - - To my expenses 432______________________ - 1 8 - --------------------------- - 433 -- 8 - -In 1787 Marshall kept his accounts in better fashion. He employed a -housekeeper in April, Mrs. Marshall being unable to attend to domestic -duties; and from February, 1787, until May of the following year he -enters during each month, "Betsy Mumkins 16/." The usual expenditures -were made during this year, and while Marshall neglects to summarize his -income and outlay, his practice was still growing, although slowly. On -December 3, 1787, his second child was born.[599] - -In January of 1787 occurred the devastating Richmond fire which -destroyed much of the little city;[600] and on February 7, Marshall -enters among his expenses, "To my subscription to the sufferers by fire -21" (pounds). - -Marshall's name first appears in the reports of the cases decided by the -Virginia Court of Appeals in 1786. In May of that year the court handed -down its opinion in Hite _et al. vs._ Fairfax _et al._[601] It involved -not only the lands directly in controversy, but also the validity of the -entire Fairfax title and indirectly that of a great deal of other land -in Virginia. Baker, who appears to have been the principal attorney for -the Fairfax claimants, declared that one of the contentions of the -appellants "would destroy every title in the Commonwealth." The case was -argued for the State by Edmund Randolph, Attorney-General, and by John -Taylor (probably of Caroline). Marshall, supporting Baker, acted as -attorney for "such of the tenants as were citizens of Virginia." The -argument consumed three days, May 3 to 5 inclusive.[602] - -Marshall made an elaborate argument, and since it is the first of his -recorded utterances, it is important as showing his quality of mind and -legal methods at that early period of his career. Marshall was a little -more than thirty years old and had been practicing law in Richmond for -about three years. - -The most striking features of his argument are his vision and foresight. -It is plain that he was acutely conscious, too, that it was more -important to the settlers who derived their holdings from Lord Fairfax -to have the long-disputed title settled than it was to win as to the -particular lands directly in controversy. Indeed, upon a close study of -the complicated records in the case, it would seem that Joist Hite's -claim could not, by any possibility, have been defeated. For, although -the lands claimed by him, and others after him, clearly were within the -proprietary of Lord Fairfax, yet they had been granted to Hite by the -King in Council, and confirmed by the Crown; Lord Fairfax had agreed -with the Crown to confirm them on his part; he or his agents had -promised Hite that, if the latter would remain on the land with his -settlers, Fairfax would execute the proper conveyances to him, and -Fairfax also made other guarantees to Hite. - -But it was just as clear that, outside of the lands immediately in -controversy, Lord Fairfax's title, from a strictly legal point of view, -was beyond dispute except as to the effect of the sequestration -laws.[603] It was assailed, however, through suggestion at least, both -by Attorney-General Randolph and by Mr. Taylor. There was, at this time, -a strong popular movement on foot in Virginia to devise some means for -destroying the whole Fairfax title to the Northern Neck. Indeed, the -reckless royal bounty from which this enormous estate sprang had been -resented bitterly by the Virginia settlers from the very beginning;[604] -the people never admitted the justice and morality of the Fairfax grant. -Also, at this particular period, there was an epidemic of debt -repudiation, evasion of contracts and other obligations, and assailing -of titles.[605] - -So, while Baker, the senior Fairfax lawyer, referred but briefly to the -validity of the Fairfax title and devoted practically the whole of his -argument to the lands involved in the case then before the court, -Marshall, on the other hand, made the central question of the validity -of the whole Fairfax title the dominant note of his argument. Thus he -showed, in his first reported legal address, his most striking -characteristic of going directly to the heart of any subject. - -Briefly reported as is his argument in Hite vs. Fairfax, the qualities -of far-sightedness and simple reasoning, are almost as plain as in the -work of his riper years:-- - -"From a bare perusal of the papers in the cause," said Marshall, "I -should never have apprehended that it would be necessary to defend the -title of Lord _Fairfax_ to the Northern Neck. The long and quiet -possession of himself and his predecessors; the acquiescence of the -country; the several grants of the crown, together with the various acts -of assembly recognizing, and in the most explicit terms admitting his -right, seemed to have fixed it on a foundation, not only not to be -shaken, but even not to be attempted to be shaken. - -"I had conceived that it was not more certain, that there was such a -tract of country as the Northern Neck, than that Lord _Fairfax_ was the -proprietor of it. And if his title be really unimpeachable, to what -purpose are his predecessors criminated, and the patents they obtained -attacked? What object is to be effected by it? Not, surely, the -destruction of the grant; for gentlemen cannot suppose, that a grant -made by the crown to the ancestor for services rendered, or even for -affection, can be invalidated in the hands of the heir because those -services and affection are forgotten; or because the thing granted has, -from causes which must have been foreseen, become more valuable than -when it was given. And if it could not be invalidated in the hands of -the heir, much less can it be in the hands of a purchaser. - -"Lord _Fairfax_ either was, or was not, entitled to the territory; if he -was, then it matters not whether the gentlemen themselves, or any -others, would or would not have made the grant, or may now think proper -to denounce it as a wise, or impolitic, measure; for still the title -must prevail; if he was not entitled, then why was the present bill -filed; or what can the court decree upon it? For if he had no title, he -could convey none, and the court would never have directed him to make -the attempt. - -"In short, if the title was not in him, it must have been in the crown; -and, from that quarter, relief must have been sought. The very filing of -the bill, therefore, was an admission of the title, and the appellants, -by prosecuting it, still continue to admit it.... - -"It [the boundary] is, however, no longer a question; for it has been -decided, and decided by that tribunal which has the power of determining -it. That decision did not create or extend Lord _Fairfax's_ right, but -determined what the right originally was. The bounds of many patents are -doubtful; the extent of many titles uncertain; but when a decision is -once made on them, it removes the doubt, and ascertains what the -original boundaries were. If this be a principle universally -acknowledged, what can destroy its application to the case before the -court?" - -The remainder of Marshall's argument concerns the particular dispute -between the parties. This, of course, is technical; but two paragraphs -may be quoted illustrating what, even in the day of Henry and Campbell, -Wickham and Randolph, men called "Marshall's eloquence." - -"They dilate," exclaimed Marshall, "upon their hardships as first -settlers; their merit in promoting the population of the country; and -their claims as purchasers without notice. Let each of these be -examined. - -"Those who explore and settle new countries are generally bold, hardy, -and adventurous men, whose minds, as well as bodies, are fitted to -encounter danger and fatigue; their object is the acquisition of -property, and they generally succeed. - -"None will say that the complainants have failed; and, if their -hardships and danger have any weight in the cause, the defendants shared -in them, and have equal claim to countenance; for they, too, with -humbler views and less extensive prospects, 'have explored, bled for and -settled a, 'till then, uncultivated desert.'"[606] - -Hite won in this particular case; but, thanks to Marshall's argument, -the court's decision did not attack the general Fairfax title. So it was -that Marshall's earliest effort at the bar, in a case of any magnitude, -was in defense of the title to that estate of which, a few years later, -he was to become a principal owner.[607] Indeed, both he and his father -were interested even then; for their lands in Fauquier County were -derived from or through Fairfax. - -Of Marshall's other arguments at this period, no record exists. We know, -however, from his Account Book, that his business increased steadily; -and, from tradition, that he was coming to be considered the ablest of -the younger members of the distinguished Richmond bar. For his services -in this, his first notable case, Marshall received one hundred and nine -pounds, four shillings, paid by fifty-seven clients. Among those -employing the young attorney was George Washington. In the account of -fees paid him in Hite vs. Fairfax, he enters: "Gen^l G. Washington 1-4" -(pounds and shillings) and "A. Washington 1-4." Marshall's record of -this transaction is headed: "List of fees rec'd from Ten^{ts} Fairfax -Ad^s Hite," referring to the title of the case in the lower court. - -An evidence of his growing prosperity is the purchase from Aquella and -Lucy Dayson of two hundred and sixty acres of land in Fauquier County, -for "one hundred and sixty pounds current money of Virginia."[608] This -purchase, added to the land already given him by his father,[609] made -John Marshall, at thirty-one years of age, the owner of nearly one -thousand acres of land in Fauquier. - -Marshall's Account Book shows his generosity toward his brothers and -sisters, who remained in Virginia when Thomas Marshall went to Kentucky -to establish himself. There are frequent entries of money advanced to -his brothers, particularly James M., as, "Given my brother James £3-9"; -or, "To my brother James £36-18," etc. Marshall's sister Lucy lived in -his house until her marriage to the wealthy John Ambler.[610] The young -lawyer was particularly attentive to the wants of his sister Lucy and -saw to it that she had all the advantages of the Virginia Capital. In -his Account Book we find many entries of expenses in her behalf; as, for -example, "for Lucy £5-8-3"; and again, a few days later, "given -Eliza[611] for Lucy" four pounds, sixteen shillings; and still later, -"for Lucy 10-6" (ten pounds, six shillings); and, "P^d. for Lucy -entering into dancing school 2-2" (two pounds, two shillings). - -Throughout Marshall's Account Book the entries that most frequently -occur are for some expense for his wife. There is hardly a page without -the entry, "given Polly" so much, or "for Polly" so much, and the -entries are for liberal amounts. For instance, on January 15, 1785, he -enters, "Sundries for Polly £8-6-8 1/2"; on the 18th, "Given Polly 6/"; -on the 25th, "for Polly 11/ 7 1/2"; and on the 29th, "Given Polly for a -hat 36/." And later, "Given Polly 56/" and "Given Polly 2-16" (pounds -and shillings); and "for Polly £3." "For Polly 5-7-5"; "Sundries for -Polly, 12-6" and "Left with Polly 10-4" (pounds and shillings). "Given -Polly £1-8"; "Gloves for Polly 7/6." Such entries are very numerous. - -The young wife, who had become an invalid soon after her marriage, -received from her husband a devotion and care which realized poetic -idealism. "His exemplary tenderness to our unfortunate sister is without -parallel," testifies Mrs. Carrington. "With a delicacy of frame and -feeling that baffles all description, she became, early after her -marriage, a prey to an extreme nervous affliction which more or less has -embittered her comfort thro' life; but this only served to increase his -care and tenderness.... He is always and under every circumstance an -enthusiast in love."[612] - -Marshall's affection for his wife grew with the years and was nourished -by her increasing infirmities. It is the most marked characteristic of -his entire private life and is the one thing which differentiates him -sharply from most of the eminent men of that heroic but, socially, -free-and-easy period. Indeed, it is in John Marshall's worship of his -delicate and nerve-racked wife that we find the beginnings of that -exaltation of womankind, which his life, as it unrolls, will disclose. - -[Illustration: PAGE OF MARSHALL'S ACCOUNT BOOK, MAY, 1787 -(_Facsimile_)] - -John Marshall's respect, admiration, reverence, for woman became so -notable that it was remarked by all who knew him, and remains to this -day a living tradition in Richmond. It resembled the sentiment of the -age of chivalry. While the touching incidents, glowing testimonials, and -most of the letters that reveal this feature of Marshall's character -occur more vividly after he ascended the bench,[613] the heart of the -man cannot be understood as we go along without noting the circumstance -in his earlier married life. - - -FOOTNOTES: - -[482] Mrs. Carrington to her sister Nancy, 1810; _Atlantic Monthly_, -lxxxiv, 546; and same to same, March, 1809; MS. Thomas Marshall was now -Colonel of the Virginia State Regiment of Artillery and continued as -such until February 26, 1781, when his men were discharged and he became -"a reduced officer." (Memorial of Thomas Marshall, _supra._ See Appendix -IV.) This valuable historical document is the only accurate account of -Thomas Marshall's military services. It disproves the statement -frequently made that he was captured when under Lincoln at Charleston, -South Carolina, May 12, 1780. Not only was he commanding the State -Artillery in Virginia at that time, but on March 28 he executed a deed -in Fauquier County, Virginia, and in June he was assisting the Ambler -family in removing to Richmond. (See _infra._) If a Thomas Marshall was -captured at Charleston, it must have been one of the many others of that -name. There was a South Carolina officer named Thomas Marshall and it is -probably he to whom Heitman refers. Heitman (ed. 1914), 381. For account -of the surrender of Charleston, see McCrady, iii, 507-09. - -[483] "Certain it is that another Revolutionary War can never happen to -affect and ruin a family so completely as ours has been!" It "involved -our immediate family in poverty and perplexity of every kind." (Mrs. -Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, 545-47.) - -[484] _Ib._ - -[485] Dog Latin and crude pun for "bell in day." - -[486] Jefferson to Page and to Fleming, from Dec. 25, 1762, to March 20, -1764; _Works_: Ford, i, 434-52. In these delightful letters Jefferson -tells of his infatuation, sometimes writing "Adnileb" in Greek. - -"He is a boy and is indisputably in love in this good year 1763, and he -courts and sighs and tries to capture his pretty little sweetheart, but -like his friend George Washington, fails. The young lady will not be -captured!" (Susan Randolph's account of Jefferson's wooing Rebecca -Burwell; _Green Bag_, viii, 481.) - -[487] Tradition says that George Washington met a like fate at the hands -of Edward Ambler, Jacquelin's brother, who won Mary Cary from the young -Virginia soldier. While this legend has been exploded, it serves to -bring to light the personal attractiveness of the Amblers; for Miss Cary -was very beautiful, heiress of a moderate fortune, and much sought -after. It was Mary Cary's sister by whom Washington was captivated. -(Colonel Wilson Miles Cary, in Pecquet du Bellet, i, 24-25.) - -[488] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. Of the letters which John Marshall wrote home while in the army, -not one has been preserved. - -[489] _Ib._ - -[490] _Ib._ - -[491] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. - -[492] _Hist. Mag._, iii, 165. While this article is erroneous as to -dates, it is otherwise accurate. - -[493] _Ib._, 167. - -[494] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. - -[495] _Hist. Mag._, iii, 167. - -[496] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. - -[497] _Supra_, chap. II. - -[498] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. - -[499] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 65. - -[500] Mrs. Carrington to her sister Nancy; _supra._ William and Mary was -the first American institution of learning to adopt the modern lecture -system. (Tyler; _Williamsburg_, 153.) The lecture method was inaugurated -Dec. 29, 1779 (_ib._, 174-75), only four months before Marshall entered. - -[501] John Brown to Wm. Preston, Feb. 15, 1780; _W. and M. C. Q._, ix, -76. - -[502] Mrs. Carrington to her sister Nancy; MS. - -[503] See _infra._ - -[504] The Reverend James Madison, Professor of Natural Philosophy and -Mathematics; James McClung, Professor of Anatomy and Medicine; Charles -Bellini, Professor of Modern Languages; George Wythe, Professor of Law; -and Robert Andrews, Professor of Moral and Intellectual Philosophy. -(_History of William and Mary College_, Baltimore, 1870, 70-71.) There -was also a fencing school. (John Brown to Wm. Preston, Feb. 15, 1780; -_W. and M. C. Q._, ix, 76.) - -[505] _History of William and Mary College_, Baltimore, 1870, 45. -"Thirty Students and three professors joined the army at the beginning -of the Revolutionary War." (_Ib._, 41.) Cornwallis occupied -Williamsburg, June, 1781, and made the president's house his -headquarters. (Tyler: _Williamsburg_, 168.) - -[506] Fithian, 107. - -[507] John Brown to Wm. Preston, Jan. 26, 1780; _W. and M. C. Q._, ix, -75. Seventeen years later the total cost to a student for a year at the -college was one hundred and fifty to one hundred and seventy dollars. -(La Rochefoucauld, iii, 49-56.) The annual salary of the professors was -four hundred dollars and that of the president was six hundred dollars. - -[508] In Marshall's time the college laws provided that "No liquors -shall be furnished or used at [the college students'] table except beer, -cider, toddy or spirits and water." (_History of William and Mary -College_ (Baltimore, 1870), 44; and see Fithian, Feb. 12, 1774, 106-07.) - -Twelve years after Marshall took his hasty law course at William and -Mary College, a college law was published prohibiting "the drinking of -spirituous liquors (except in that moderation which becomes the prudent -and industrious student)." (_History of William and Mary College_, 44.) - -In 1769 the Board of Visitors formally resolved that for professors to -marry was "contrary to the principles on which the College was founded, -and their duty as Professors"; and that if any professor took a wife -"his Professorship be immediately vacated." (Resolution of Visitors, -Sept. 1, 1769; _ib._, 45.) This law was disregarded; for, at the time -when Marshall attended William and Mary, four out of the five professors -were married men. - -The college laws on drinking were merely a reflection of the customs of -that period. (See chaps. VII and VIII.) This historic institution of -learning turned out some of the ablest and best-educated men of the -whole country. Wythe, Bland, Peyton and Edmund Randolph, Taylor of -Caroline, Nicholas, Pendleton, Madison, and Jefferson are a few of the -William and Mary's remarkable products. Every one of the most -distinguished families of Virginia is found among her alumni. (See -Catalogue of Alumni, _History of William and Mary College_, 73-147. An -error in this list puts John Marshall in the class of 1775 instead of -that of 1780; also, he did not graduate.) - -[509] _Infra_, chap. VII. - -[510] La Rochefoucauld, iii, 49; and see Schoepf, ii, 79-80. - -William Wirt, writing twenty-three years after Marshall's short -attendance, thus describes the college: "They [Virginians] have only one -publick seminary of learning.... This college ... in the niggardly -spirit of parsimony which they dignify with the name of economy, these -democrats have endowed with a few despicable fragments of surveyors' -fees &c. thus converting their national academy into a mere _lazaretto_ -and feeding its ... highly respectable professors, like a band of -beggars, on the scraps and crumbs that fall from the financial table. -And, then, instead of aiding and energizing the police of the college, -by a few civil regulations, they permit their youth to run riot in all -the wildness of dissipation." (Wirt: _The British Spy_, 131, 132.) - -[511] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 69. - -[512] Chastellux, 299. It is difficult to reconcile Jefferson's -description of the college building with that of the French traveler. -Possibly the latter was influenced by the French professor, Bellini. - -[513] John Brown to Col. Wm. Preston, July 6, 1780: _W. and M. C. Q._, -ix, 80. - -[514] John Brown to Col. Wm. Preston, July 6, 1780; _W. and M. C. Q._, -ix, 80. - -[515] Records, Phi Beta Kappa Society of William and Mary College, -printed in _W. and M. C. Q._, iv, 236. - -[516] Dr. Lyon G. Tyler, now President of William and Mary College, -thinks that this date is approximately correct. - -[517] Records, Phi Beta Kappa Society of William and Mary College; -printed in, _W. and M. C. Q._, iv, 236. - -[518] See _infra._ - -[519] Marshall's Notebook; MS. See _infra._ - -[520] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv, -536. - -[521] See _infra._ - -[522] Marshall to his wife, _infra._ - -[523] Marshall could have had at least one year at William and Mary, for -the college did not close until June, 1781. Also he could have continued -to attend for several weeks after he left in June, 1780; for student -John Brown's letters show that the college was still open on July 20 of -that year. - -[524] County Court Minutes of Fauquier County, Virginia, 1773-80, 473. - -[525] _Autobiography._ - -[526] Marshall, with other officers, did go to Philadelphia in January -or February of 1777 to be inoculated for smallpox (Marshall to Colonel -Stark, June 12, 1832, supporting latter's pension claim; MSS. Rev. War, -S. F. no. 7592, Pension Bureau); but evidently he was not treated or the -treatment was not effective. - -[527] First, the written permission to be inoculated had to be secured -from all the justices of the county; next, all the neighbors for two -miles around must consent--if only one of them refused, the treatment -could not be given. Any physician was fined ten thousand dollars, if he -inoculated without these restrictions. (Hening, ix, 371.) If any one was -stricken with smallpox, he was carried to a remote cabin in the woods -where a doctor occasionally called upon him. (La Rochefoucauld, iii, -79-80; also De Warville, 433.) - -[528] Horses were very scarce in Virginia at this time. It was almost -impossible to get them even for military service. - -[529] _Southern Literary Messenger_ (quoting from a statement by -Marshall), ii, 183. - -[530] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -547. - -[531] _Ib._, 548. A story handed down through generations of lawyers -confirms Mrs. Carrington. "I would have had my wife if I had had to -climb Alleghanys of skulls and swim Atlantics of blood" the legend makes -Marshall say in one of his convivial outbursts. (The late Senator Joseph -E. McDonald to the author.) - -[532] "The Palace" was a public building "not handsome without but ... -spacious and commodious within and prettily situated." ("Notes on -Virginia": Jefferson; _Works_: Ford, iv, 69.) - -[533] Richard Anderson, the father of the defender of Fort Sumter. -(Terhune: _Colonial Homesteads_, 97.) - -[534] A country place of Edward Ambler's family in Hanover County. (See -Pecquet du Bellet, i, 35.) Edward Ambler was now dead. His wife lived at -"The Cottage" from the outbreak of the war until her death in 1781. -(_Ib._, 26; and Mrs. Carrington to Mrs. Dudley, Oct. 10, 1796; MS.) - -[535] Marshall to his wife, Feb. 23, 1826; MS. - -[536] Most of the courts were closed because of the British invasion. -(Flanders, ii, 301.) - -[537] _Infra_, chap. VI. - -[538] _Autobiography._ - -[539] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv, -537. - -[540] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv, -537. - -[541] Jefferson to Short, Dec. 14, 1788; _Works_: Ford, vi, 24. Twelve -years after Marshall's marriage, there were but seven hundred houses in -Richmond. (Weld, i, 188.) - -[542] Pecquet du Bellet, i, 35-37. He was very rich. (See inventory of -John Ambler's holdings, _ib._) This opulent John Ambler married John -Marshall's sister Lucy in 1792 (_ib._, 40-41); a circumstance of some -interest when we come to trace Marshall's views as influenced by his -connections and sympathies. - -[543] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -548. - -[544] She was born March 18, 1766, and married January 3, 1783. (Paxton, -37.) Marshall's mother was married at the same age. - -[545] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, -548. - -[546] Thomas Marshall's will shows that he owned, when he died, several -years later, an immense quantity of land. - -[547] _Supra_, chap. II. - -[548] Fauquier County Tithable Book, 1783-84; MS., Va. St. Lib. - -[549] _Ib._ - -[550] See _infra._ - -[551] Washington to Lund Washington, Aug. 15, 1778; _Writings_: Ford, -vii, 151-52. - -[552] Records of Fauquier County (Va.), Deed Book, vii, 533. - -[553] _Supra_, chap. II. - -[554] See _infra_, chap. VIII. - -[555] Marshall to Monroe, Dec. 28, 1784; Monroe MSS., vii, 832; Lib. -Cong. - -[556] Marshall, ii, 104. - -[557] Marshall to Monroe, Dec. 12, 1783; Draper Collection, Wis. Hist. -Soc. Thomas Marshall first went to Kentucky in 1780 by special -permission of the Governor of Virginia and while he was still Colonel of -the State Artillery Regiment. (Humphrey Marshall, i, 104, 120.) During -his absence his regiment apparently became somewhat demoralized. (Thomas -Marshall to Colonel George Muter, Feb. 1781; MS. Archives, Va. St. Lib. -and partly printed in _Cal. Va. St. Prs._, i, 549.) Upon his return to -Virginia, he was appointed Surveyor of a part of Kentucky, November 1, -1780. (Collins: _History of Kentucky_, i, 20.) The following year he was -appointed on the commission "to examine and settle the Public Accts in -the Western Country" and expected to go to Kentucky before the close of -the year, but did not, because his military certificates were not given -him in time. (Thomas Marshall to Governor Harrison, March 17, 1781; -_Cal. Va. St. Prs._, i, 578; and to Lieutenant-Governor Jameson, Oct. -14, 1781; _ib._, 549.) He opened his surveyor's office in Kentucky in -November, 1782. (Butler: _History of Kentucky_, 138.) In 1783 he -returned to Virginia to take his family to their new home, where he -remained until his death in 1802. (Paxton, 19.) Thomas Marshall was -immediately recognized as one of the leading men in this western -Virginia district, and was elected to the Legislature and became -"Surveyor [Collector] of Revenue for the District of Ohio." (See -_infra_, chaps, III and V.) - -[558] Betsy Ambler to Mildred Smith; _Atlantic Monthly_, lxxxiv, 537. - -[559] Mrs. Carrington to Mildred Smith, Jan. 10, 1786; MS. - -[560] Mordecai, 45-47. - -[561] _Ib._, 40. - -[562] Mordecai, chap. ii. - -[563] _Ib._, 51-52. This was more than twenty years after Marshall and -his young wife started housekeeping in Richmond. - -[564] _Ib._, 53. - -[565] _Ib._ - -[566] Meade, i, 140; Schoepf, ii, 62. - -[567] Mordecai, chap, xxi; Schoepf, ii, 63 _et seq._ - -[568] See _supra_, chaps. I and VII. - -[569] Schoepf, ii, 64. Marshall frequented this place and belonged to a -club which met there. (See entries from Marshall's Account Book, -_infra._) - -[570] _Supra_, chap. II. - -[571] This invaluable Marshall source is not a law student's commonplace -book alphabetically arranged, but merely a large volume of blank leaves. -It is six inches wide by eight in length and more than one in thickness. -The book also contains Marshall's accounts for twelve years after his -marriage. All reference hereafter to his receipts and expenses are from -this source. - -[572] The notes are not only of lectures actually delivered by Wythe, -but of Marshall's reading on topics assigned for study. It is probable -that many of these notes were made after Marshall left college. - -[573] See _infra_, chap. VI. - -[574] Such entries as these denote only Marshall's social and friendly -spirit. At that period and for many years afterward card-playing for -money was universal in Virginia (La Rochefoucauld, iii, 77; and -Mordecai, ed. 1856, chap. xxi), particularly at Richmond, where the -women enjoyed this pastime quite as much as the men. (_Ib._) This, -indeed, was the case everywhere among women of the best society who -habitually played cards for money. (Also see Chastellux, 333-34.) - -[575] Marshall's wife. - -[576] The references are to pounds, shillings, and pence. Thus "3 14/" -means three pounds and fourteen shillings. "30-5-10" means thirty -pounds, five shillings, and tenpence; or "3/6" means three shillings, -sixpence. Where the Account Book indicates the amount without the signs -of denomination, I have stated the amount indicated by the relative -positions of the figures in the Account Book. Computation should be by -Virginia currency (which was then about three and one half dollars to -the Virginia pound) and not by the English pound sterling. This is not -very helpful, however, because there is no standard of comparison -between the Virginia dollar of that period and the United States dollar -of to-day. It is certain only that the latter has greater purchasing -power than the former. All paper money had greatly depreciated at the -time, however. - -[577] The "University" was William and Mary College, then partly -supported by a portion of the fees of official surveyors. Thomas -Marshall was now Surveyor of Fayette County, Kentucky. (See _supra._) -This entry occurs several times. - -[578] Such entries are frequent throughout his Account Book. During his -entire life, Marshall was very fond of the theater. (See _infra_, II, -chap, V; also vol. III of this work.) - -[579] Thomas Marshall, born July 21, 1784. (Paxton, 90.) - -[580] Buchanan was the Episcopal clergyman in Richmond at the time. -(Meade, i, 29, 140.) - -[581] The races at Richmond, held bi-annually, were the great social -events of Virginia. (Mordecai, 178 _et seq._) - -[582] This fixes the equivalent in State dollars for Virginia pounds and -shillings. - -[583] He already owned one tithable negro in Fauquier County in 1783. -(Fauquier County Tithable Book, 1783-84; MS., Va. St. Lib. See _supra._) - -[584] Marshall to Monroe, Feb. 24, 1784; MS., N.Y. Pub. Lib. Compare -with Jefferson's sentimental letters at the same age. Very few of -Marshall's letters during this period are extant. This one to Monroe is -conspicuously noticeable for unrestraint and joyousness. As unreserved -as he always was in verbal conversation, Marshall's correspondence soon -began to show great caution, unlike that of Jefferson, which increased, -with time, in spontaneity. Thus Marshall's letters became more guarded -and less engaging; while Jefferson's pen used ever more highly colored -ink and progressively wrote more entertaining if less trustworthy -matter. - -[585] Gallatin to Maxwell, Feb. 15, 1848; Gallatin's _Writings_: Adams, -ii, 659. Also see Mordecai, 94-95. - -[586] His father must have kept, for the time being, the Blackstone -purchased in 1772, although the volume later turned up in Marshall's -possession. - -[587] This book, with the others named, bears the signature of Marshall -at this period of his life. They are the only books in existence which -certainly were bought by Marshall at that time, all other volumes he is -positively known to have had in his library being published at a later -date. All except one of those named, with others hereafter mentioned, -are in the possession of Judge J. K. M. Norton, Alexandria, Virginia. -The _Lex Mercatoria_ is, of course, in English. It is a large book -containing seven hundred seventy-five pages, seven by eight inches, -firmly bound in calf. It is "compiled from many standard authorities." -While it is an encyclopædia of law and business containing items such as -a comparison of the values of money of all lands, it is very readable -and entertaining. It is just the kind of book from which Marshall could -have derived information without being wearied by research. John Adams -also had a copy of Malynes's _Lex Mercatoria_, which seems to have been -a common possession of commercial lawyers throughout the country. - -[588] This book is now in the possession of Hon. William Marshall -Bullitt, of Louisville, Kentucky. - -[589] The numerous entries of this kind occurring throughout Marshall's -Account Book must not be misunderstood. At that time and for many -decades afterward, the habitual use of whiskey, wine, rum, brandy, etc., -was the universal custom. They were bought in quantities and consumed -much as ordinary table waters now are. The common people, especially -those in the South, distilled their own stimulants. The people of New -England relied on the great distilleries of Boston and vicinity for rum, -of which they consumed enormous quantities. (See _infra_, chap. VII; -also chap. II, vol. II, of this work.) - -[590] Records of Fauquier County (Va.), Deed Book, viii, 241, March 16, -1785. - -[591] The tavern kept by Farmicola, where Marshall's club met. (See -_supra._) - -[592] Henrico County Tithable Book; Va. St. Lib. He had, of course, -other slaves, horses, and cattle on his Fauquier County plantation. - -[593] Christian, 28. - -[594] Eliza Ambler to Mildred Smith, July 10, 1785; MS.; also printed in -_Atlantic Monthly_, lxxxiv, 540-41. - -[595] Drs. McClurg, Foushee, and Mackie. - -[596] This book was purchased for his wife, who was extremely religious. -The volume is in the possession of Judge J. K. M. Norton, Alexandria, -Virginia. On the fly-leaf appears, "Mrs. Mary W. Marshall," in -Marshall's handwriting. The book was also useful to Marshall for his own -study of rhetoric, since Blair's sermons stood very high, at this time, -as examples of style. - -[597] Christian, 29, 30. - -[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. - - - - -CHAPTER VI - -IN THE LEGISLATURE AND COUNCIL OF STATE - - 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 -visitors wanted 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 favorite costume. 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. Thomas -Jefferson, 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 has twice 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 at length 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 -"Col^o. R. 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 esq^r of 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] - -[Illustration: MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF -STATE, 1784] - -[Illustration: MARSHALL'S SIGNATURE IN 1797] - -[Illustration: SIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D -VIRGINIA REGIMENT] - -Marshall's signature to the minutes of the Council is 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 collision with 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] - -[Illustration: FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE -(_Facsimile_)] - -When the Legislature convened, nine days again passed 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 Paine to 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. Incidents like -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 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 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 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 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 -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 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 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] - -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 whites[743] 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 amendments[750] 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. - - -FOOTNOTES: - -[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 Cong^s 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 ag^{st} Cong^s, 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._) - -This amazing bill actually passed the House on its first and second -reading and there seems to be no doubt that it would have become a law -had not Henry at that time been elected Governor, which took him "_out -of the way_," to use Madison's curt phrase. John Marshall favored this -bill. - -[741] Journal, H.D. (2d Sess., 1784), 41. - -[742] _Ib._ - -[743] See note 5, p. 239, _ante_. - -[744] Marshall to Monroe, Dec., 1784; MS. Monroe Papers, Lib. Cong.; -also partly quoted in Henry, ii, 219. - -[745] See _infra_, chap. IX. - -[746] One of the curious popular errors concerning our public men is -that which pictures Washington as a calm person. On the contrary, he was -hot-tempered and, at times, violent in speech and action. It was with -the greatest difficulty that he trained himself to an appearance of -calmness and reserve. - -[747] Story, in Dillon, iii, 338, 343. - -[748] Journal, H.D. (Oct. Sess., 1787), 7. - -[749] _Ib._, 11, 15. - -[750] _Pennsylvania Packet_, Nov. 10, 1787: Pa. Hist. Soc. - -[751] _Infra_, chaps. XI and XII. - -[752] _Pennsylvania Packet_, Nov. 10, 1787; also see in Rowland, ii, -176. - -[753] _Infra_, chaps. IX, XII; and also Washington to Lafayette, Feb. 7, -1788; _Writings_: Ford, xi, 220. - -[754] _Pennsylvania Packet_, Nov. 10, 1787; Pa. Hist. Soc. - -[755] Journal, H.D. (Oct. Sess., 1787), 15. - -[756] _Ib._ - -[757] _Ib._, 95. - -[758] _Ib._ (Dec., 1787), 143, 177. - -[759] Hening, xii, 462-63. - - - - -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. - -When Washington, as President, was on his way to meet Congress, his -carriage stuck in the mud, and only after it had been pried up with -poles and pulled out by ropes could the Father of his Country proceed on -his journey;[765] and this, too, over the principal highway of Maryland. -"My nerves have not yet quite recovered the shock of the _wagon_," wrote -Samuel Johnston of a stage trip from Baltimore to New York two years -after our present Government was established.[766] Richard Henry Lee -objected to the Constitution, because, among other things, "many -citizens will be more than three hundred miles from the seat of this -[National] government";[767] and "as many assessors and collectors of -federal taxes will be above three hundred miles from the seat of the -federal government as will be less."[768] - -The best road throughout its course, in the entire country, was the one -between Boston and New York; yet the public conveyance which made -regular trips with relays of horses in the most favorable season of the -year usually took an entire week for the journey.[769] The stage was -"shackling"; the horses' harness "made of ropes"; one team hauled the -stage only eighteen miles; the stop for the night was made at ten -o'clock, the start next morning at half-past two; the passengers often -had to "help the coachman lift the coach out of the quagmire."[770] - -Over parts even of this, the finest long highway in the United States, -the stage had to struggle against rocks and to escape precipices. "I -knew not which to admire the most in the driver, his intrepidity or -dexterity. I cannot conceive how he avoided twenty times dashing the -carriage to pieces,"[771] testifies a traveler. In central -Massachusetts, the roads "were intolerable" even to a New Englander; and -"the country was sparsely inhabited by a rude population."[772] In -Rhode Island not far from Providence the traveler was forced to keep -mounting and dismounting from his horse in order to get along at -all.[773] Dr. Taylor, in the Massachusetts Convention of 1788, arguing -for frequent elections, said that it would take less than three weeks -for Massachusetts members of Congress to go from Boston to -Philadelphia.[774] - -Farmers only a short distance from New York could not bring their -produce to the city in the winter because the roads were -impassable.[775] Up State, in Cooper's Otsego settlement, "not one in -twenty of the settlers had a horse and the way lay through rapid -streams, across swamps or over bogs.... If the father of a family went -abroad to labour for bread, it cost him three times its value before he -could bring it home."[776] As late as 1790, after forty thousand acres -in this region had been taken up "by the poorest order of men ... there -were neither roads nor bridges"; and about Otsego itself there was not -even "any trace of a road."[777] Where Utica now stands, the opening -through the wilderness, which went by the name of a road, was so nearly -impassable that a horseback traveler could make no more than two miles -an hour over it. Rocks, stumps, and muddy holes in which the horse sank, -made progress not only slow and toilsome, but dangerous.[778] - -Twenty days was not an unusual time for ordinary wagons, carrying -adventurous settlers to the wilderness west of the Alleghanies, to cross -Pennsylvania from Philadelphia to Pittsburg;[779] and it cost a hundred -and twenty dollars a ton to haul freight between these points.[780] -Three years after our present Government was established, twenty out of -twenty-six lawsuits pending in Philadelphia were settled out of court -"rather than go ninety miles from Phil^a for trial."[781] - -Talleyrand, journeying inland from the Quaker City about 1795, was -"struck with astonishment" at what he beheld: "At less than a hundred -and fifty miles distance from the Capital," he writes, "all trace of -men's presence disappeared; nature in all her primeval vigor confronted -us. Forests old as the world itself; decayed plants and trees covering -the very ground where they once grew in luxuriance." And Talleyrand -testifies that the fields, only a few miles' walk out of the "cities," -had been "mere wildernesses of forest" at the time the Constitution was -adopted.[782] - -"The length and badness of the roads from hence [Mount Vernon] to -Philadelphia" made Washington grumble with vexation and disgust;[783] -and Jefferson wrote of the President's Southern tour in 1791: "I shall -be happy to hear that no accident has happened to you in the bad -roads ... that you are better prepared for those to come by lowering -the hang [body] of your carriage and exchanging the coachman for two -postilions ... which [are] ... essential to your safety."[784] - -No more comfortable or expeditious, if less dangerous, was travel by -boat on the rivers. "Having lain all night in my Great Coat and Boots in -a berth not long enough for me," chronicles Washington of this same -Presidential journey, "we found ourselves in the morning still fast -aground."[785] - -So difficult were the New Jersey roads that the stout and well-kept -harness with which Washington always equipped his horses was badly -broken going through New Jersey in 1789.[786] "The roads [from Richmond -to New York] thro' the whole were so bad that we could never go more -than three miles an hour, some times not more than two, and in the -night, but one," wrote Jefferson[787] in March, 1790. - -A traveler starting from Alexandria, Virginia, to visit Mount Vernon, -nine miles distant, was all day on the road, having become lost, in the -"very thick woods." So confusing was the way through this forest that -part of this time he was within three miles of his destination.[788] -Twelve years after our present Government was established James A. -Bayard records of his journey to the Capital: "Tho' traveling in the -mail stage ... we were unable to move at more than the rate of two or -three miles an hour."[789] - -Throughout Virginia the roads were execrable and scarcely deserved the -name. The few bridges usually were broken.[790] The best road in the -State was from Williamsburg, the old Capital, to Richmond, the new, a -distance of only sixty-three miles; yet, going at highest speed, it -required two days to make the trip.[791] Traveling in Virginia was -almost exclusively by horseback; only negroes walked.[792] According to -Grigsby, the familiar vision in our minds of the picturesque coach -comfortably rolling over attractive highways, with postilions and -outriders, which we now picture when we think of traveling in old -Virginia, is mostly an historical mirage; for, says Grigsby, "coaches -were rarely seen. There were thousands of respectable men in the -Commonwealth who had never seen any other four-wheeled vehicle than a -wagon and there were thousands who had never seen a wagon" at the time -when the Constitution was ratified.[793] - -If horseback journeys were sore trials to the rider, they were -desperately hard and sometimes fatal to the poor brute that carried -him. In crossing unfordable rivers on the rude ferryboats, the horses' -legs frequently were broken or the animals themselves often killed or -drowned.[794] From Fredericksburg to Alexandria the roads were -"frightfully bad."[795] As late as 1801 the wilderness was so dense just -above where the City of Washington now stands that Davis called it "the -wilds of the Potomac." In most parts of Virginia a person unacquainted -with the locality often became lost in the forests.[796] South of -Jamestown the crude and hazardous highways led through "eternal -woods."[797] - -A short time before the Revolution, General Wilkinson's father bought -five hundred acres on the present site of the National Capital, -including the spot where the White House now stands; but his wife -refused to go there from a little hamlet near Baltimore where her family -then lived, because it was so far away from the settlements in the -backwoods of Maryland.[798] A valuable horse was stolen from a Virginia -planter who lived one hundred and forty miles from Richmond; but, -although the thief was known, the expense of going to the Capital with -witnesses was double the value of the horse, and so the planter pocketed -his loss.[799] It cost more to transport tobacco from Augusta County, -Virginia, to market than the tobacco was worth, so difficult and -expensive was the carriage.[800] - -A sergeant in a Virginia regiment during the Revolutionary War, living -in a part of the State which at present is not two hours' ride from the -Capital, petitioned the House of Delegates in 1790 for payment of his -arrears because he lived so far away from Richmond that he had found it -impossible to apply within the time allowed for the settlement of his -accounts in the regular way.[801] In 1785 the price of tobacco on the -James River or the Rappahannock, and in Philadelphia varied from twenty -to ninety-five per cent, although each of these places was "the same -distance from its ultimate market,"[802] so seriously did want of -transportation affect commerce. "The trade of this Country is in a -deplorable Condition ... the loss direct on our produce & indirect on -our imports is not less than 50 per ct.," testifies Madison.[803] - -Only in the immediate neighborhood of Philadelphia, Boston,[804] or New -York, neither of which "cities" was as large as a moderate-sized inland -town of to-day, were highways good, even from the point of view of the -eighteenth century. In all other parts of America the roads in the -present-day sense did not exist at all. Very often such trails as had -been made were hard to find and harder to keep after they had been -found. Near the close of the Revolution, Chastellux became tangled up in -the woods on his way to visit Jefferson at Monticello "and travelled a -long time without seeing any habitation."[805] - -Whoever dared to take in North Carolina what, at present, would be a -brief and pleasant jaunt, then had to go through scores of miles of -"dreary pines" in which the traveler often lost his way and became -bewildered in the maze of the forest.[806] Again, the wanderer would -find himself in a desolation of swamp and wood without the hint of a -highway to follow out of it; and sleeping on the ground beneath the -trees of this wilderness, with only wild animals about him, was, for the -ordinary traveler, not an uncommon experience.[807] - -Even when the road could be traced, bears would follow it, so much was -it still a part of their savage domain.[808] The little traveling -possible when the weather was good was sometimes entirely suspended for -days after a rain or snowfall, even out of a "city" like Baltimore.[809] -Six years after the Constitution was adopted, Talleyrand found the -buildings of that ambitious town "disput[ing] the ground with trees -whose stumps have not yet been removed."[810] - -Such were the means of communication of a people scattered over a -territory of almost half a million square miles. The total population of -the United States was about three and a quarter millions; the same part -of the country to-day has a population of not far from fifty-five -millions. Including cities, and adding to these the more thickly settled -portions adjoining them, there were not in the original States seven -men, women, and children, all told, to the square mile. If we add -Kentucky, Tennessee, Ohio, Illinois, and Indiana, into which the -restless settlers already were moving, the people then living in the -United States were fewer than five persons to the square mile. - -The various little clusters of this scanty and widely separated -population were almost entirely out of touch one with another. -Inhabitants were scattered through those far-flung stretches called the -United States, but they were not a people. Scarcely any communication -existed between them; while such a thing as mail service was unknown to -all but a comparatively few thousands. It required six days and -sometimes nine to carry mail between Boston and New York. As late as -1794 a letter of Jefferson, then in Charlottesville, Virginia, to -Madison at Philadelphia, reached the latter nine days after it was -sent; and another letter between the same correspondents was eight days -on the journey.[811] - -Yet this was unusually expeditious. One month later, on January 26, -1795, Madison wrote Jefferson that "I have received your favor of Dec^r. -28, but [not] till three weeks after the date of it."[812] Summer, when -the post-riders made better time, seemed not greatly to increase the -dispatch of mail; for it took more than a month for a letter posted in -New York in that season of the year to reach an accessible Virginia -county seat.[813] Letters from Richmond, Virginia, to New York often did -not arrive until two months after they were sent.[814] But better time -was frequently made and a letter between these points was, commonly, -hurried through in a month.[815] - -Many weeks would go by before one could send a letter from an interior -town in Pennsylvania. "This Uniontown is the most obscure spot on the -face of the globe.... I have been here seven or eight weeks without one -opportunity of writing to the land of the living," complains a disgusted -visitor.[816] A letter posted by Rufus King in Boston, February 6, 1788, -to Madison in New York was received February 15;[817] and although -anxiously awaiting news, Madison had not, on February 11, heard that -Massachusetts had ratified the Constitution, although that momentous -event had occurred five days before.[818] New York first learned of that -historic action eight days after it was taken.[819] But for the -snail-like slowness of the post, the Constitution would certainly have -been defeated in the Virginia Convention of 1788.[820] - -Transatlantic mail service was far more expeditious considering the -distance; a letter from Jay in London reached Wolcott at Philadelphia in -less than eight weeks.[821] But it sometimes required five months to -carry mail across the ocean;[822] even this was very much faster than -one could travel by land in America. Four weeks from Cowes, England, to -Lynnhaven Bay, Virginia, was a record-breaking voyage.[823] - -Such letters as went through the post-offices were opened by the -postmasters as a matter of course, if these officials imagined that the -missives contained information, or especially if they revealed the -secret or familiar correspondence of well-known public men.[824] "By -passing through the post-office they [letters] should become known to -all" men, Washington cautioned Lafayette in 1788.[825] In 1791, the -first year of the Post-Office under our present Government, there were -only eighty-nine post-offices in the entire country.[826] "As late as -1791 there were only six post-offices in New Jersey and none south of -Trenton."[827] - -Yet letters were the principal means by which accounts of what was -happening in one part of the country were made known to the people who -lived in other sections; and this personal correspondence was by far the -most trustworthy source of information, although tinctured as it -naturally was by the prejudice of the writer and often nothing but -report of mere rumor. - -Newspapers were few in number and scanty in news. When the Constitution -was adopted, not many regularly issued newspapers were printed in the -whole country. Most of these were published in Philadelphia, Boston, New -York, and in two or three of the other larger towns. Only ten papers -were printed in Connecticut, one of the best informed and best served of -all the States, and of these several soon expired;[828] in Ridgefield, -with twelve hundred inhabitants, there were but four newspaper -subscribers.[829] In 1784, Virginia had only one newspaper, published at -Richmond twice a week.[830] - -These papers carried scarcely any news and the little they published was -often weeks and sometimes months old, and as uncertain as it was stale. -"It is but seldom that I have an opportunity of peeping into a -newspaper," wrote "Agricola" to the Salem (Massachusetts) "Gazette," -September 13, 1791, "and when it happens it is commonly a stale one of 2 -or 3 weeks back; but I lately met with your fresh Gazette of August -30th--may be I shan't see another for months to come."[831] "Newspaper -paragraphs, unsupported by other testimony, are often contradictory and -bewildering," wrote Washington of so big, important, and exciting news -as the progress of Shays's Rebellion.[832] On the same day Washington -complained to General Knox that he was "bewildered with those vague and -contradictory reports which are presented in the newspapers."[833] - -But what this pygmy press lacked in information it made up in personal -abuse. Denunciation of public men was the rule, scandal the fashion. -Even the mild and patient Franklin was driven to bitter though witty -protest. He called the press "THE SUPREMEST COURT OF JUDICATURE," which -"may judge, sentence, and condemn to infamy, not only private -individuals, but public bodies, &c. with or without inquiry or hearing, -_at the court's discretion_." This "Spanish Court of Inquisition," -asserts Franklin, works "in the dark" and so rapidly that "an honest, -good Citizen may find himself suddenly and unexpectedly accus'd, and in -the same Morning judg'd and condemn'd, and sentence pronounced against -him, that he is a _Rogue_ and a _Villian_." - -"The liberty of the press," writes Franklin, operates on citizens -"somewhat like the _Liberty of the Press_ that Felons have, by the -Common Law of England, before Conviction, that is, to be _press'd_ to -death or hanged." "Any Man," says he, "who can procure Pen, Ink, and -Paper, with a Press, and a huge pair of BLACKING BALLS, may -commissionate himself" as a court over everybody else, and nobody has -any redress. "For, if you make the least complaint of the _judge's_ -[editor's] conduct, he daubs his blacking balls in your face wherever he -meets you, and, besides tearing your private character to flitters marks -you out for the odium of the public, as an _enemy to the liberty of the -press_." Franklin declared that the press of that day was supported by -human depravity. - -Searching for a remedy which would destroy the abuse but preserve the -true liberty of the press, Franklin finally concludes that he has found -it in what he calls "the _liberty of the cudgel_." The great philosopher -advised the insulted citizen to give the editor "a good drubbing"; but -if the public should feel itself outraged, it should restrain itself -and, says Franklin, "in moderation content ourselves with tarring and -feathering, and tossing them [editors] in a blanket."[834] - -Even Jefferson was sometimes disgusted with the press. "What do the -foolish printers of America mean by retailing all this stuff in our -papers?--As if it were not enough to be slandered by one's enemies -without circulating the slanders among his friends also."[835] An -examination of the newspapers of that period shows that most of the -"news" published were accounts of foreign events; and these, of course, -had happened weeks and even months before. - -Poor, small, and bad as the newspapers of the time were, however, they -had no general circulation many miles from the place where they were -published. Yet, tiny driblets trickled through by the belated posts to -the larger towns and were hastily read at villages where the post-riders -stopped along the way. By 1790 an occasional country newspaper appeared, -whose only source of news from the outside world was a fugitive copy of -some journal published in the city and such tales as the country editor -could get travelers to tell him: whether these were true or false made -not the slightest difference--everything was fish that came to his -net.[836] - -Common schools in the present-day understanding of the term did not -exist. "There was not a grammar, a geography, or a history of any kind -in the school," testifies Samuel G. Goodrich[837] (Peter Parley) of -Ridgefield, Connecticut; and this at a time when the Constitution had -been adopted and our present Government was in operation. "Slates & -pencils were unknown, paper was imported, scarce and costly"; most -pupils in New England "cyphered on birch bark"; and a teacher who could -compute interest was considered "great in figures."[838] "The teacher -was not infrequently a person with barely education enough to satisfy -the critical requirements of some illiterate committeemen.... The pay -was only from three to five dollars a month, and two months during the -winter season was the usual term."[839] The half-dozen small but -excellent colleges and the few embryonic academies surrounded by -forests, where educated and devout men strove to plant the seeds of -institutions of learning, could not, altogether, reach more than a few -hundred pupils. - -"_Anthony McDonald_ teaches boys and girls their grammar tongue; also -Geography terrestrial and celestial--Old hats made as good as new." So -read the sign above the door of McDonald's "school" in Virginia, a dozen -years after Washington was elected President.[840] For the most part -children went untaught, except in "the three R's," which, in some -mysterious manner, had been handed down from father to son. Yet in the -back settlements it was common to find men of considerable property who -could not read or write; and some of those who could make out to read -did not know whether the earth was round or flat.[841] There were but -thirty students at Virginia's historic college in 1795. Weld dined with -President Madison, of William and Mary's, and several of the students -were at the table. Some of these young seekers after culture were -without shoes, some without coats; and each of them rose and helped -himself to the food whenever he liked.[842] - -Parts of the country, like the Mohawk Valley in New York, were fairly -settled and well cultivated.[843] In the more thickly inhabited parts of -New England there were order, thrift, and industry.[844] The houses of -the most prosperous farmers in Massachusetts, though "frequently but one -story and a garret," had "their walls papered"; tea and coffee were on -their tables when guests appeared; the women were clad in calicoes and -the men were both farmers and artisans.[845] Yet on the road from Boston -to Providence houses were seen already falling into decay; "women and -children covered with rags."[846] In Newport, Rhode Island, idle men -loafed on the street corners, houses were tumbling down from negligence, -grass grew in the public square, and rags were stuffed into the -windows.[847] - -In Connecticut the people were unusually prosperous; and one -enthusiastic Frenchman, judging that State from the appearance of the -country around Hartford, exclaimed: "It is really the Paradise of the -United States."[848] Weld found that, while the "southeast part of ... -Pennsylvania is better cultivated than any other part of America, yet -the style of farming is ... very slovenly.... The farmer ... in -England ... who rents fifty acres ... lives far more comfortably in -every respect than the farmer in Pennsylvania, or any other of the -middle states, who owns two hundred acres."[849] - -In the homes of Quaker farmers near Philadelphia, however, the furniture -was of black walnut, the beds and linen white and clean, the food varied -and excellent.[850] Yet a settler's house in the interior of -Pennsylvania was precisely the reverse, as the settler himself was the -opposite of the industrious and methodical Quaker husbandman. A log -cabin lighted only by the open door, and with the bare earth for a -floor, housed this pioneer and his numerous family. Often he was a man -who had lost both fortune and credit and therefore sought regions where -neither was necessary. When neighbors began to come in such numbers that -society (which to him meant government, order, and taxes) was formed, he -moved on to a newer, more desolate, and more congenial spot. Mostly -hunter and very little of a farmer, he with his nomad brood lived "in -the filth of his little cabin," the rifle or rod, and corn from the -meager clearing, supplying all his wants except that of whiskey, which -he always made shift to get. - -One idea and one alone possessed this type--the idea of independence, -freedom from restraint. He was the high priest of the religion of -do-as-you-like. He was the supreme individualist, the ultimate democrat -whose non-social doctrine has so cursed modern America. "He will not -consent to sacrifice a single natural right for all the benefits of -government,"[851] chronicles a sympathetic observer of these men. - -Freneau, a fervent admirer of this shiftless and dissolute type, thus -describes him and his home:-- - -/* - "Far in the west, a paltry spot of land, - That no man envied, and that no man owned, - A woody hill, beside a dismal bog-- - This was your choice; nor were you much to blame; - And here, responsive to the croaking frog, - You grubbed, and stubbed, - And feared no landlord's claim."[852] -*/ - -Nor was hostility to orderly society confined to this class. Knox wrote -Washington that, in Massachusetts, those who opposed the Constitution -acted "from deadly principle levelled at the existence of all government -whatever."[853] - -The better class of settlers who took up the "farms" abandoned by the -first shunners of civilization, while a decided improvement, were, -nevertheless, also improvident and dissipated. In a poor and slip-shod -fashion, they ploughed the clearings which had now grown to fields, -never fertilizing them and gathering but beggarly crops. Of these a part -was always rye or corn, from which whiskey was made. The favorite -occupation of this type was drinking to excess, arguing politics, -denouncing government, and contracting debts.[854] Not until debts and -taxes had forced onward this second line of pioneer advance did the -third appear with better notions of industry and order and less hatred -of government and its obligations.[855] - -In New England the out-push of the needy to make homes in the forests -differed from the class just described only in that the settler remained -on his clearing until it grew to a farm. After a few years his ground -would be entirely cleared and by the aid of distant neighbors, cheered -to their work by plenty of rum, he would build a larger house.[856] But -meanwhile there was little time for reading, small opportunity for -information, scanty means of getting it; and mouth-to-mouth rumor was -the settler's chief informant of what was happening in the outside -world. In the part of Massachusetts west of the Connecticut Valley, at -the time the Constitution was adopted, a rough and primitive people were -scattered in lonesome families along the thick woods.[857] - -In Virginia the contrast between the well-to-do and the masses of the -people was still greater.[858] The social and economic distinctions of -colonial Virginia persisted in spite of the vociferousness of democracy -which the Revolution had released. The small group of Virginia gentry -were, as has been said, well educated, some of them highly so, -instructed in the ways of the world, and distinguished in manners.[859] -Their houses were large; their table service was of plate; they kept -their studs of racing and carriage horses.[860] Sometimes, however, they -displayed a grotesque luxury. The windows of the mansions, when broken, -were occasionally replaced with rags; servants sometimes appeared in -livery with silk stockings thrust into boots;[861] and again dinner -would be served by naked negroes.[862] - -The second class of Virginia people were not so well educated, and the -observer found them "rude, ferocious, and haughty; much attached to -gaming and dissipation, particularly horse-racing and cock-fighting"; -and yet, "hospitable, generous, and friendly." These people, although by -nature of excellent minds, mingled in their characters some of the -finest qualities of the first estate, and some of the worst habits of -the lower social stratum. They "possessed elegant accomplishments and -savage brutality."[863] The third class of Virginia people were lazy, -hard-drinking, and savage; yet kind and generous.[864] "Whenever these -people come to blows," Weld testifies, "they fight just like wild -beasts, biting, kicking, and endeavoring to tear each other's eyes out -with their nails"; and he says that men with eyes thus gouged out were a -common sight.[865] - -The generation between the birth of Marshall and the adoption of the -Constitution had not modified the several strata of Virginia society -except as to apparel and manners, both of which had become worse than in -colonial times. - -Schoepf found shiftlessness[866] a common characteristic; and described -the gentry as displaying the baronial qualities of haughtiness, vanity, -and idleness.[867] Jefferson divides the people into two sections as -regards characteristics, which were not entirely creditable to either. -But in his comparative estimate Jefferson is far harsher to the Southern -population of that time than he is to the inhabitants of other States; -and he emphasizes his discrimination by putting his summary in parallel -columns. - -"While I am on this subject," writes Jefferson to Chastellux, "I will -give you my idea of the characters of the several States. - - In the North they are In the South they are - cool fiery - sober voluptuary - laborious indolent - persevering unsteady - independent independent - jealous of their own liberties, zealous for their own liberties, but - and just to those of others trampling on those of others - interested generous - chicaning candid - superstitious and hypocritical without attachment or pretensions to - in their religion any religion but that of the - heart. - -"These characteristics," continues Jefferson, "grow weaker and weaker by -graduation from North to South and South to North, insomuch that an -observing traveller, without the aid of the quadrant may always know his -latitude by the character of the people among whom he finds himself." - -"It is in Pennsylvania," Jefferson proceeds in his careful analysis, -"that the two characters seem to meet and blend, and form a people free -from the extremes both of vice and virtue. Peculiar circumstances have -given to New York the character which climate would have given had she -been placed on the South instead of the north side of Pennsylvania. -Perhaps too other circumstances may have occasioned in Virginia a -transplantation of a particular vice foreign to its climate." Jefferson -finally concludes: "I think it for their good that the vices of their -character should be pointed out to them that they may amend them; for a -malady of either body or mind once known is half cured."[868] - -A plantation house northwest of Richmond grumblingly admitted a lost -traveler, who found his sleeping-room with "filthy beds, swarming with -bugs" and cracks in the walls through which the sun shone.[869] The most -bizarre contrasts startled the observer--mean cabins, broken windows, no -bread, and yet women clad in silk with plumes in their hair.[870] Eight -years after our present National Government was established, the food of -the people living in the Shenandoah Valley was salt fish, pork, and -greens; and the wayfarer could not get fresh meat except at Staunton or -Lynchburg,[871] notwithstanding the surrounding forests filled with game -or the domestic animals which fed on the fields where the forests had -been cleared away. - -Most of the houses in which the majority of Virginians then lived were -wretched;[872] Jefferson tells us, speaking of the better class of -dwellings, that "it is impossible to devise things more ugly, -uncomfortable, and happily more perishable." "The poorest people," -continues Jefferson, "build huts of logs, laid horizontally in pens, -stopping the interstices with mud.... The wealthy are attentive to the -raising of vegetables, but very little so to fruits.... The poorer -people attend to neither, living principally on ... animal diet."[873] - -In general the population subsisted on worse fare than that of the -inhabitants of the Valley.[874] Even in that favored region, where -religion and morals were more vital than elsewhere in the Commonwealth, -each house had a peach brandy still of its own; and it was a man of -notable abstemiousness who did not consume daily a large quantity of -this spirit. "It is scarcely possible," writes Weld, "to meet with a man -who does not begin the day with taking one, two, or more drams as soon -as he rises."[875] - -Indeed, at this period, heavy drinking appears to have been universal -and continuous among all classes throughout the whole country[876] quite -as much as in Virginia. It was a habit that had come down from their -forefathers and was so conspicuous, ever-present and peculiar, that -every traveler through America, whether native or foreign, mentions it -time and again. "The most common vice of the inferior class of the -American people is drunkenness," writes La Rochefoucauld in 1797.[877] -And Washington eight years earlier denounced "drink which is the source -of all evil--and the ruin of half the workmen in this country."[878] -Talleyrand, at a farmer's house in the heart of Connecticut, found the -daily food to consist of "smoked fish, ham, potatoes, strong beer and -brandy."[879] - -Court-houses built in the center of a county and often standing entirely -alone, without other buildings near them, nevertheless always had -attached to them a shanty where liquor was sold.[880] At country taverns -which, with a few exceptions, were poor and sometimes vile,[881] -whiskey mixed with water was the common drink.[882] About Germantown, -Pennsylvania, workingmen received from employers a pint of rum each day -as a part of their fare;[883] and in good society men drank an -astonishing number of "full bumpers" after dinner, where, already, they -had imbibed generously.[884] The incredible quantity of liquor, wine, -and beer consumed everywhere and by all classes is the most striking and -conspicuous feature of early American life. In addition to the very -heavy domestic productions of spirits,[885] there were imported in 1787, -according to De Warville, four million gallons of rum, brandy, and other -spirits; one million gallons of wine; three million gallons of molasses -(principally for the manufacture of rum); as against only one hundred -and twenty-five thousand pounds of tea.[886] - -Everybody, it appears, was more interested in sport and spending than in -work and saving. As in colonial days, the popular amusements continued -to be horse-racing and cock-fighting; the first the peculiar diversion -of the quality; the second that of the baser sort, although men of all -conditions of society attended and delighted in both.[887] But the -horse-racing and the cock-fighting served the good purpose of bringing -the people together; for these and the court days were the only -occasions on which they met and exchanged views. The holding of court -was an event never neglected by the people; but they assembled then to -learn what gossip said and to drink together rather than separately, far -more than they came to listen to the oracles from the bench or even the -oratory at the bar; and seldom did the care-free company break up -without fights, sometimes with the most serious results.[888] - -Thus, scattered from Maine to Florida and from the Atlantic to the -Alleghanies, with a skirmish line thrown forward almost to the -Mississippi, these three and a quarter millions of men, women, and -children, did not, for the most part, take kindly to government of any -kind. Indeed, only a fraction of them had anything to do with -government, for there were no more than seven hundred thousand adult -males among them,[889] and of these, in most States, only -property-holders had the ballot. The great majority of the people seldom -saw a letter or even a newspaper; and the best informed did not know -what was going on in a neighboring State, although anxious for the -information. - -"Of the affairs of Georgia, I know as little as of those of -Kamskatska," wrote Madison to Jefferson in 1786.[890] But everybody did -know that government meant law and regulation, order and mutual -obligation, the fulfillment of contracts and the payment of debts. Above -all, everybody knew that government meant taxes. And none of these -things aroused what one would call frantic enthusiasm when brought home -to the individual. Bloated and monstrous individualism grew out of the -dank soil of these conditions. The social ideal had hardly begun to -sprout; and nourishment for its feeble and languishing seed was sucked -by its overgrown rival. - -Community consciousness showed itself only in the more thickly peopled -districts, and even there it was feeble. Generally speaking and aside -from statesmen, merchants, and the veterans of the Revolution, the idea -of a National Government had not penetrated the minds of the people. -They managed to tolerate State Governments, because they always had -lived under some such thing; but a National Government was too far away -and fearsome, too alien and forbidding for them to view it with -friendliness or understanding. The common man saw little difference -between such an enthroned central power and the Royal British Government -which had been driven from American shores. - -To be sure, not a large part of the half-million men able for the -field[891] had taken much of any militant part in expelling British -tyranny; but these "chimney-corner patriots," as Washington stingingly -described them, were the hottest foes of British despotism--after it had -been overthrown. And they were the most savage opponents to setting up -any strong government, even though it should be exclusively American. - -Such were the economic, social, and educational conditions of the masses -and such were their physical surroundings, conveniences, and -opportunities between the close of the War for Independence and the -setting-up of the present Government. All these facts profoundly -affected the thought, conduct, and character of the people; and what the -people thought, said, and did, decisively influenced John Marshall's -opinion of them and of the government and laws which were best for the -country. - -During these critical years, Jefferson was in France witnessing -government by a decaying, inefficient, and corrupt monarchy and -nobility, and considering the state of a people who were without that -political liberty enjoyed in America.[892] But the vagaries, the -changeableness, the turbulence, the envy toward those who had property, -the tendency to repudiate debts, the readiness to credit the grossest -slander or to respond to the most fantastic promises, which the newly -liberated people in America were then displaying, did not come within -Jefferson's vision or experience. - -Thus, Marshall and Jefferson, at a time destined to be so important in -determining the settled opinions of both, were looking upon opposite -sides of the shield. It was a curious and fateful circumstance and it -was repeated later under reversed conditions. - - -FOOTNOTES: - -[760] Weld, i, 37-38; also, Morris, ii, 393-94. - -[761] Weld, i, 38. - -[762] Baily's _Journal_ (1796-97), 108. - -[763] _Ib._, 109-10. - -[764] Professor Beard, in his exposition of the economic origins of the -Constitution, shows that nearly all of the men who framed it were -wealthy or allied with property interests and that many of them turned -up as holders of Government securities. (Beard: _Econ. I. C._, chap. V.) -As a matter of fact, none but such men could have gone to the Federal -Convention at Philadelphia, so great were the difficulties and so heavy -the expenses of travel, even if the people had been minded to choose -poorer and humbler persons to represent them; at any rate, they did not -elect representatives of their own class until the Constitution was to -be ratified and then, of course, only to State Conventions which were -accessible. - -[765] Weld, i, 47-48. - -[766] Johnston to Iredell, Jan. 30, 1790; McRee, ii, 279. - -[767] "Letters of a Federal Farmer," no. 2; Ford: _P. on C._, 292. - -[768] _Ib._, no. 3, 302. - -[769] De Warville made a record trip from Boston to New York in less -than five days. (De Warville, 122.) But such speed was infrequent. - -[770] Josiah Quincy's description of his journey from Boston to New York -in 1794. (Quincy: _Figures of the Past_, 47-48.) - -[771] De Warville, 138-39. - -[772] Watson, 266. - -[773] "The road is execrable; one is perpetually mounting and descending -and always on the most rugged roads." (Chastellux, 20.) - -[774] Elliott, ii, 21-22. - -[775] "In December last, the roads were so intollerably bad that the -country people could not bring their forage to market, though _actually -offered the cash on delivery_." (Pickering to Hodgdon; _Pickering_: -Pickering, i, 392.) - -[776] Cooper, 1875-86, as quoted in Hart, iii, 98. - -[777] _Ib._ - -[778] Watson, 270. Along one of the principal roads of New York, as late -as 1804, President Dwight discovered only "a few lonely plantations" and -he "occasionally found a cottage and heard a distant sound of an axe and -of a human voice. All else was grandeur, gloom, and solitude." (Halsey: -_Old New York Frontier_, 384.) - -[779] Hart, iii, 116. - -[780] _Mag. Western Hist._, i, 530. - -[781] Justice Cushing to Chief Justice Jay, Oct. 23, 1792; _Jay_: -Johnston, iii, 450. - -[782] _Memoirs of Talleyrand_: Broglie's ed., i, 176-77. - -[783] Washington to Jay, Nov. 19, 1790; _Jay_: Johnston, iii, 409. - -[784] Jefferson to Washington, March 27, 1791; _Cor. Rev._: Sparks, iv, -366. - -[785] Washington's _Diary_: Lossing, Feb. 25, 1791. - -[786] Washington to Jay, Dec. 13, 1789; _Jay_: Johnston, iii, 381. - -[787] Jefferson to T. M. Randolph, March 28, 1790; _Works_: Ford, vi, -36. - -[788] Weld, i, 91. - -[789] Bayard to Rodney, Jan. 5, 1801; _Bayard Papers_: Donnan, ii, 118. - -[790] Schoepf, ii, 46. - -[791] _Ib._, 78. - -[792] _Ib._, 45. - -[793] Grigsby, i, 26. - -[794] Weld, i, 170. - -[795] Watson, 60. - -[796] Davis, 372. - -[797] Schoepf, ii, 95. - -[798] Wilkinson: _Memoirs_, i, 9-10. The distance which General -Wilkinson's mother thought "so far away" was only forty miles. - -[799] Schoepf, ii, 53. - -[800] Zachariah Johnson, in Elliott, iii, 647. - -[801] Journal, H.D. (1790), 13. - -[802] Madison to Lee, July 7, 1785; _Writings_: Hunt, ii, 149-51. - -[803] _Ib._ - -[804] Boston was not a "city" in the legal interpretation until 1822. - -[805] Chastellux, 225. "The difficulty of finding the road in many parts -of America is not to be conceived except by those strangers who have -travelled in that country. The roads, which are through the woods, not -being kept in repair, as soon as one is in bad order, another is made in -the same manner, that is, merely by felling trees, and the whole -interior parts are so covered that without a compass it is impossible to -have the least idea of the course you are steering. The distances, too, -are so uncertain as in every county where they are not measured, that no -two accounts resemble each other. In the back parts of Pennsylvania, -Maryland, and Virginia, I have frequently travelled thirty miles for -ten, though frequently set right by passengers and negroes." (_Ib._ -Translator's note.) - -[806] Smyth, _Tour of the United States_, i, 102-103. - -[807] Watson, 40. "Towards the close of the day I found myself entangled -among swamps amid an utter wilderness, and my horse almost exhausted in -my efforts to overtake Harwood. As night closed upon me I was totally -bewildered and without a vestige of a road to guide me. Knowing the -impossibility of retracing my steps in the dark, through the mazes I had -traversed, I felt the necessity of passing the night in this solitary -desert ... in no trifling apprehension of falling a prey to wild beasts -before morning." (_Ib._) - -[808] _Ib._ - -[809] "I waited at Baltimore near a week before I could proceed on my -journey the roads being rendered impassable." (Baily's _Journal_ -(1796-97), 107.) - -[810] _Memoirs of Talleyrand_: Broglie's ed., i, 177. - -[811] Madison to Jefferson, Dec. 21, 1794; _Writings_: Hunt, vi, 227. - -[812] Madison to Jefferson, Jan. 26, 1795; _ib._, 230. - -[813] "Your favor of July 6 having been address^d to Williamsburg, -instead of _Orange C. Ho[u]se_, did not come to hand till two days ago." -(Madison to Livingston, Aug. 10, 1795; _ib._, vi, 234.) - -[814] Lee to Henry, May 28, 1789; Henry, iii, 387. - -[815] Lee to Henry, Sept. 27, 1789; Henry, iii, 402. - -[816] Ephraim Douglass to Gen. James Irvine, 1784; _Pa. Mag. Hist. and -Biog._, i, 50. - -[817] Madison to Washington, Feb. 15, 1788; and King to Madison, Feb. 6, -1788; _Writings_: Hunt, v, footnote to p. 100. - -[818] Madison to Washington, Feb. 11, 1788: _Writings_: Hunt, v, 99. - -[819] Madison to Washington, Feb. 15, 1788; _ib._, 100. - -[820] The Randolph-Clinton Correspondence; see _infra_, chap. x. - -[821] Jay to Wolcott, mailed June 23, and received by Wolcott Aug. 16, -1794; Gibbs, i, 157. - -[822] _Ib._, 160. - -[823] Jefferson to Short, Nov. 21, 1789; _Works_: Ford, vi, 20. - -[824] So notorious was this practice that important parts of the -correspondence of the more prominent politicians and statesmen of the -day always were written in cipher. Jefferson, Madison, and Monroe appear -to have been especially careful to take this precaution. (See -Washington's complaint of this tampering with the mails in a letter to -Fairfax, June 25, 1786; _Writings_: Sparks, ix, 175.) Habitual violation -of the mails by postmasters continued into the first decades of the -nineteenth century. - -[825] Washington to Lafayette, Feb. 7, 1788; _Writings_: Ford, xi, 218. - -[826] Kettell, in _Eighty Years' Progress_, ii, 174. - -[827] _Pa. Mag. Hist. and Biog._, ix, 444. - -[828] _Am. Ant. Soc. Pubs._, xxiii, Part ii, 254-330. - -[829] Goodrich, i, 61. - -[830] Schoepf, ii, 61; see note, _ib._ Even this journal died for want -of subscribers. - -[831] Salem _Gazette_, Sept. 13, 1791; Hist. Col., Topsfield (Mass.) -Hist. Soc., iii, 10. - -[832] Washington to Humphreys, Dec. 26, 1786; _Writings_: Ford, xi, -98-103. - -[833] Washington to General Knox, Dec. 26, 1786; _ib._, 103-05. - -[834] _Writings_: Smyth, x, 36 _et seq._ This arraignment of the press -by America's first journalist was written when Franklin was eighty-three -years old and when he was the most honored and beloved man in America, -Washington only excepted. It serves not only to illuminate the period of -the beginning of our Government, but to measure the vast progress during -the century and a quarter since that time. - -[835] Jefferson to Mrs. Adams, Paris, Sept. 25, 1785; _Works_: Ford, iv, -465. - -[836] "Country Printer," in Freneau, iii, 60. Freneau thus describes the -country editor of that day:-- - - "Three times a week, by nimble geldings drawn, - A stage arrives; but scarcely deigns to stop. - Unless the driver, far in liquor gone, - Has made some business for the black-smith-shop; - Then comes this printer's harvest-time of news, - Welcome alike from Christians, Turks, or Jews. - - "Each passenger he eyes with curious glance, - And, if his phiz be mark'd of courteous kind, - To conversation, straight, he makes advance, - Hoping, from thence, some paragraph to find, - Some odd adventure, something new and rare, - To set the town a-gape, and make it stare. - - "All is not Truth ('tis said) that travellers tell-- - So much the better for this man of news; - For hence the country round, that know him well, - Will, if he prints some lies, his lies excuse. - Earthquakes, and battles, shipwrecks, myriads slain-- - If false or true--alike to him are gain. - - "Ask you what matter fills his various page? - A mere farrago 'tis, of mingled things; - Whate'er is done on Madam Terra's stage - He to the knowledge of his townsmen brings: - One while, he tells of monarchs run away; - And now, of witches drown'd in Buzzard's bay. - - "Some miracles he makes, and some he steals; - Half Nature's works are giants in his eyes; - Much, very much, in wonderment he deals,-- - New-Hampshire apples grown to pumpkin size, - Pumpkins almost as large as country inns, - And ladies bearing, each,--three lovely twins." - -Freneau was himself a country printer in New Jersey, after editing the -_National Gazette_ in Philadelphia. Thus the above description was from -his personal experience and in a town in a thickly settled part, on the -main road between New York and Philadelphia. - -[837] Goodrich, i, 38. - -[838] A letter from Salem Town about 1786-87; in _American Journal of -Education_, xiii, 738. - -[839] Van Santvoord: _Memoirs of Eliphalet Nott_, 19. - -[840] Davis, 333. - -[841] "Many cannot read or write, and many that can, know nothing of -geography and other branches. The country is too thinly settled to carry -out a system of common schools." (Howe, 153, speaking of western -Virginia about 1830.) - -[842] Weld, i, 168. But President Tyler says that the boys Weld saw were -grammar-school pupils. - -[843] Watson, 269. - -[844] Chastellux, 319-20. - -[845] De Warville, 126-27. - -[846] _Ib._, 145 and 450. - -[847] _Ib._, 145. All travelers agree as to the wretched condition of -Rhode Island; and that State appears to have acted as badly as it -looked. "The ... infamous [scenes] in Rhode Island have done -inexpressable injury to the Republican character," etc. (Madison to -Pendleton, Feb. 24, 1787; _Writings_: Hunt, ii, 319.) - -[848] De Warville, 132. - -[849] Weld, i, 113. - -[850] De Warville, 186-87. - -[851] De Warville, 186 and 332. See La Rochefoucauld's description of -this same type of settler as it was several years after De Warville -wrote. "The Dwellings of the new settlers ... consist of huts, with -roofs and walls which are made of bark and in which the husband, wife -and children pass the winter wrapped up in blankets.... Salt pork and -beef are the usual food of the new settlers; their drink is water and -whiskey." (La Rochefoucauld, i, 293-96.) - -[852] Freneau, iii, 74. - -[853] Knox to Washington, Feb. 10, 1788; _Writings_: Ford, xi, footnote -to 229. And see _infra_, chap. VIII. - -[854] De Warville, 187. In 1797, La Rochefoucauld speaks of "the -credulity and ignorance of the half-savage sort of people who inhabit -the back settlements." (La Rochefoucauld, i, 293.) - -[855] "A relaxation is observable among all orders of society. -Drunkenness is the prevailing vice, and with few exceptions, the source -of all other evils. A spirit, or rather a habit, of equality is diffused -among this people as far as it possibly can go.... The inhabitants -exhibit to strangers striking instances both of the utmost cleanliness -and excessive nastiness," (La Rochefoucauld, i, 125.) - -During Washington's second term as President, La Rochefoucauld thus -describes manners in western Pennsylvania: "They are much surprised at a -refusal to sleep with one, two, or more men, in the same bed, or between -dirty sheets, or to drink after ten other persons out of the same dirty -glass.... Whiskey mixed with water is the common drink in the country." -(_Ib._) - -[856] _Ib._, i, 293-96. See _infra_, note 4, pp. 281-82. - -[857] Watson, 266. - -[858] "You see [in Maryland and Virginia] real misery and apparent -luxury insulting each other." (De Warville, 159.) - -[859] Chastellux, 279, and translator's note. - -[860] Anburey, ii, 331-32. - -[861] De Warville, 242. - -[862] "Soon after entering Virginia, and at a highly respectable house, -I was shocked ... at seeing for the first time, young negroes of both -sexes, from twelve even to fifteen years old, not only running about the -house but absolutely tending table, as naked as they came into the -world.... Several young women were at the table, who appeared totally -unmoved." (Watson, 33.) Watson's statement may perhaps be questionable; -a livelier description, however, was given with embellishments, some -years later. (See translator's note to Chastellux, 245; and see Schoepf, -ii, 47.) - -[863] Anburey, ii, 331-32. - -[864] _Ib._, 332-33. - -[865] Weld, i, 192. See Weld's description of "gouging." And see -Fithian's interesting account; Fithian, 242-43. - -[866] Schoepf, ii, 89. - -[867] _Ib._, 91-95. - -[868] Jefferson to Chastellux, Sept. 2, 1785; _Thomas Jefferson -Correspondence_, Bixby Collection: Ford, 12; and see Jefferson to -Donald, July 28, 1787; Jefferson's _Writings_: Washington, ii, 193, -where Jefferson says that the qualities of Virginians are "indolence, -extravagance, and infidelity to their engagements." - -[869] Weld, i, 199. - -[870] Schoepf, ii, 34. This strange phenomenon was witnessed everywhere, -even in a place then so far remote as Maine. "Elegant women come out of -log or deal huts [in Maine] all wearing fashionable hats and head -dresses with feathers, handsome cloaks and the rest of their dress -suitable to this." (La Rochefoucauld, ii, 314.) - -[871] _Ib._, 89; and Weld, i, 199, 236. The reports of all travelers as -to the want of fresh meat in the Valley are most curious. That region -was noted, even in those early days, for its abundance of cattle. - -[872] _Ib._, 144. - -[873] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 69; and see -Weld, i, 114, for similar diet in Pennsylvania. - -[874] _Ib._, 183-84. - -[875] Weld, i, 206. "Sigars and whiskey satisfy these good people who -thus spend in a quarter of an hour in the evening, the earnings of a -whole day. The landlord of the Inn has also a distillery of whiskey," -writes La Rochefoucauld, in 1797, of the mountain people of Virginia. He -thus describes the houses and people living in the valley towards -Staunton: "The habitations are in this district more numerous than on -the other side of the Blue Mountains, but the houses are miserable; -mean, small log houses, inhabited by families which swarm with children. -There exists here the same appearance of misery as in the back parts of -Pennsylvania." (La Rochefoucauld, iii, 173-76.) - -[876] "It took a good deal of New England rum to launch a 75 ton -schooner ... to raise a barn ... or to ordain a regular minister.... -Workingmen in the fields, in the woods, in the mills and handling logs -and lumber on the river were supplied with regular rations of spirits." -(Maine Hist. Soc. Col. (2d Series), vi, 367-68.) - -The rich people of Boston loved picnic parties in the near-by country, -at which was served "Punch, warm and cold, before dinner; excellent -beef, Spanish and Bordeaux wines, cover their tables ... Spruce beer, -excellent cyder, and Philadelphia porter precede the wines." (De -Warville, 58.) This inquiring Frenchman called on Hancock, but found -that he had a "marvelous gout which dispenses him from all attentions -and forbids the access to his house." (_Ib._, 66.) As to New England -country stores, "you find in the same shop, hats, nails, liquors." -(_Ib._, 127.) - -[877] La Rochefoucauld, iv, 577. - -[878] Washington to Green (an employee) March 31, 1789; _Writings_: -Ford, xi, 377. - -[879] _Memoirs of Talleyrand_: Broglie's ed., i, footnote to 181; and -see Talleyrand's description of a brandy-drinking bout at this house in -which he participated. - -[880] Schoepf, ii, 47. - -[881] Watson, 252. - -[882] Chastellux, 224; see also 243. - -[883] La Rochefoucauld, iv, 119. - -[884] _Ib._, 590. - -[885] See _infra_, II, chap. II. - -[886] De Warville, 262. - -[887] Watson, 261-62. "The indolence and dissipation of the middling and -lower classes of white inhabitants in Virginia are such as to give -pain.... Horse-racing, cock-fighting, and boxing-matches are standing -amusements, for which they neglect all business." (_Ib._; and see -Chastellux, 292, translator's note. Also see Chastellux's comments on -the economic conditions of the Virginians, 291-93.) For habits of -Virginians nearly twenty years after Watson wrote, see La Rochefoucauld, -iii, 75-79. - -[888] "The session assembles here, besides the neighboring judges, -lawyers, and parties whose causes are to be tried, numbers of idle -people who come less from desire to learn what is going forward than to -drink together," says La Rochefoucauld; and see his picturesque -description of his arrival at the close of court day at Goochland -Court-House. (La Rochefoucauld, iii, 126-29.) - -[889] One man to every five men, women, and children, which is a high -estimate. - -[890] Madison to Jefferson, Aug. 12, 1786; _Writings_: Hunt, ii, 261. - -[891] Randolph in the Virginia Constitutional Convention estimated that -the colonies could have put four hundred thousand soldiers in the field. -(Elliott, iii, 76-77.) - -[892] It is a curious fact, however, that in his journey through France -Jefferson observed no bad conditions, but, on the whole, his careful -diary states that he found the people "well clothed and well fed," as -Professor Hazen expresses it. For impartial treatment of this subject -see Hazen, 1-21. - - - - -CHAPTER VIII - -POPULAR ANTAGONISM TO GOVERNMENT - - Mankind, when left to themselves, are unfit for their own - government. (George Washington, 1786.) - - There are subjects to which the capacities of the bulk of mankind - are unequal and on which they must and will be governed by those - with whom they happen to have acquaintance and confidence. (James - Madison, 1788.) - - I fear, and there is no opinion more degrading to the dignity of - man, that these have truth on their side who say that man is - incapable of governing himself. (John Marshall, 1787.) - - -"Government, even in its best state," said Mr. Thomas Paine during the -Revolution, "is but a necessary evil."[893] Little as the people in -general had read books of any kind, there was one work which most had -absorbed either by perusal or by listening to the reading of it; and -those who had not, nevertheless, had learned of its contents with -applause. - -Thomas Paine's "Common Sense," which Washington and Franklin truly said -did so much for the patriot cause,[894] had sown dragon's teeth which -the author possibly did not intend to conceal in his brilliant lines. -Scores of thousands interpreted the meaning and philosophy of this -immortal paper by the light of a few flashing sentences with which it -began. Long after the British flag disappeared from American soil, this -expatriated Englishman continued to be the voice of the people;[895] and -it is far within the truth to affirm that Thomas Paine prepared the -ground and sowed the seed for the harvest which Thomas Jefferson -gathered. - -"Government, like dress, is the badge of lost innocence; the palaces of -kings are built on the ruins of the bowers of paradise." And again, -"Society is produced by our wants, and government by our -wickedness."[896] So ran the flaming maxims of the great iconoclast; and -these found combustible material. - -Indeed, there was, even while the patriots were fighting for our -independence, a considerable part of the people who considered "all -government as dissolved, and themselves in a state of absolute liberty, -where they wish always to remain"; and they were strong enough in many -places "to prevent any courts being opened, and to render every attempt -to administer justice abortive."[897] Zealous bearers, these, of the -torches of anarchy which Paine's burning words had lighted. Was it not -the favored of the earth that government protected? What did the poor -and needy get from government except oppression and the privilege of -dying for the boon? Was not government a fortress built around property? -What need, therefore, had the lowly for its embattled walls? - -Here was excellent ammunition for the demagogue. A person of little -ability and less character always could inflame a portion of the people -when they could be assembled. It was not necessary for him to have -property; indeed, that was a distinct disadvantage to the Jack Cades of -the period.[898] A lie traveled like a snake under the leaves and could -not be overtaken;[899] bad roads, scattered communities, long distances, -and resultant isolation leadened and delayed the feet of truth. Nothing -was too ridiculous for belief; nothing too absurd to be credited. - -A Baptist preacher in North Carolina was a candidate for the State -Convention to pass upon the new National Constitution, which he bitterly -opposed. At a meeting of backwoodsmen in a log house used for a church, -he told them in a lurid speech that the proposed "Federal City" (now the -District of Columbia) would be the armed and fortified fortress of -despotism. "'This, my friends,' said the preacher, 'will be walled in or -fortified. Here an army of 50,000, or, perhaps 100,000 men, will be -finally embodied and will sally forth, and enslave the people who will -be gradually disarmed.'" A spectator, who attempted to dispute this -statement, narrowly escaped being mobbed by the crowd. Everything -possible was done to defeat this ecclesiastical politician; but the -people believed what he said and he was elected.[900] - -So bizarre an invention as the following was widely circulated and -generally believed as late as 1800: John Adams, it was said, had -arranged, by intermarriage, to unite his family with the Royal House of -Great Britain, the bridegroom to be King of America. Washington, attired -in white clothing as a sign of conciliation, called on Adams and -objected; Adams rebuffed him. Washington returned, this time dressed in -black, to indicate the solemnity of his protest. Adams was obdurate. -Again the Father of his Country visited the stubborn seeker after -monarchical relationship, this time arrayed in full regimentals to show -his earnestness; Adams was deaf to his pleas. Thereupon the aged warrior -drew his sword, avowing that he would never sheathe it until Adams gave -up his treasonable purpose; Adams remained adamant and the two parted -determined enemies.[901] - -Such are examples of the strange tales fed to the voracious credulity of -the multitude. The attacks on personal character, made by setting loose -against public men slanders which flew and took root like thistle seed, -were often too base and vile for repetition at the present day, even as -a matter of history; and so monstrous and palpably untruthful that it is -difficult to believe they ever could have been circulated much less -credited by the most gossip-loving. - -Things, praiseworthy in themselves, were magnified into stupendous and -impending menaces. Revolutionary officers formed "The Society of the -Cincinnati" in order to keep in touch with one another, preserve the -memories of their battles and their campfires, and to support the -principles for which they had fought.[902] Yet this patriotic and -fraternal order was, shouted the patriots of peace, a plain attempt to -establish an hereditary nobility on which a new tyranny was to be -builded. Jefferson, in Paris, declared that "the day ... will certainly -come, when a single fibre of this institution will produce an -hereditary aristocracy which will change the form of our governments -[Articles of Confederation] from the best to the worst in the -world."[903] - -Ædanus Burke,[904] one of the Justices of the Supreme Court of South -Carolina, wrote that the Society of the Cincinnati was "deeply planned"; -it was "an hereditary peerage"; it was "planted in a fiery hot ambition, -and thirst for power"; "its branches will end in Tyranny ... the country -will be composed only of two ranks of men, the patricians, or nobles, -and the rabble."[905] In France, Mirabeau was so aroused by Burke's -pamphlet that the French orator wrote one of his own. Mirabeau called -the Cincinnati "that nobility of barbarians, the price of blood, the -off-spring of the sword, the fruit of conquest." "The distinction of -Celts and Ostrogoths," exclaimed the extravagant Frenchman, "are what -they claim for their inheritance."[906] - -The "Independent Chronicle" of Boston was so excited that it called on -"legislators, Governors, and magistrates _and their_ ELECTORS" to -suppress the Cincinnati because it "is concerted to establish a -complete and perpetual _personal_ discrimination between" its members -"and the whole remaining body of the people who will be styled -Plebeians."[907] - -John Marshall was a member of this absurdly traduced patriotic -fraternity. So were his father and fellow officers of our War for -Independence. Washington was its commander. Were the grotesque charges -against these men the laurels with which democracy crowned those who had -drawn the sword for freedom? Was this the justice of liberty? Was this -the intelligence of the masses? Such must have been the queries that -sprang up in the minds of men like Marshall. And, indeed, there was -sound reason for doubt and misgiving. For the nightmares of men like -Burke and Mirabeau were pleasant dreams compared with the horrid visions -that the people conjured. - -[Illustration] - -Nor did this popular tendency to credit the most extraordinary tale, -believe the most impossible and outrageous scandal, or accept the most -impracticable and misshapen theory, end only in wholesome hatred of rank -and distinction. Among large numbers there was the feeling that equality -should be made real by a general division of property. Three years after -peace had been established, Madison said he "strongly suspected" that -many of the people contemplated "an abolition of debts public & private, -and a new division of property."[908] And Jay thought that "a reluctance -to taxes, an impatience of government, a rage for property, and -little regard to the means of acquiring it, together with a desire for -equality in all things, seem to actuate the mass of those who are uneasy -in their circumstances."[909] The greed and covetousness of the people -is also noted by all travelers.[910] - -Very considerable were the obligations "public and private" which -Madison wrote his father that he "strongly suspected" a part of the -country intended to repudiate. The public debt, foreign and domestic, of -the Confederation and the States, at the close of the Revolutionary War, -appeared to the people to be a staggering sum.[911] The private debt -aggregated a large amount.[912] The financial situation was chaos. Paper -money had played such havoc with specie that, in Virginia in 1786, as we -have seen, there was not enough gold and silver to pay current -taxes.[913] The country had had bitter experience with a fictitious -medium of exchange. In Virginia by 1781 the notes issued by Congress -"fell to 1000 for 1," records Jefferson, "and then expired, as it had -done in other States, without a single groan."[914] - -Later on, foreigners bought five thousand dollars of this Continental -scrip for a single dollar of gold or silver.[915] In Philadelphia, -toward the end of the Revolution, the people paraded the streets wearing -this make-believe currency in their hats, with a dog tarred and covered -with paper dollars instead of feathers.[916] For land sold by Jefferson -before paper currency was issued he "did not receive the money till it -was not worth Oak leaves."[917] - -Most of the States had uttered this fiat medium, which not only -depreciated and fluctuated within the State issuing it, but made trade -between citizens of neighboring States almost impossible. Livingston -found it a "loss to shop it in New York with [New] Jersey Money at the -unconscionable discount which your [New York] brokers and merchants -exact; and it is as damnifying to deal with our merchants here [New -Jersey] in that currency, since they proportionably advance the price of -their commodities."[918] Fithian in Virginia records that: "In the -evening I borrowed of _Ben Carter_ 15/--I have plenty of money with me -but it is in Bills of Philadelphia Currency and will not pass at all -here."[919] - -Virginia had gone through her trial of financial fiction-for-fact, -ending in a law fixing the scale of depreciation at forty to one, and in -other unique and bizarre devices;[920] and finally took a determined -stand against paper currency.[921] Although Virginia had burned her -fingers, so great was the scarcity of money that there was a formidable -agitation to try inflation again.[922] Throughout the country there once -more was a "general rage for paper money."[923] Bad as this currency -was, it was counterfeited freely.[924] Such coin as existed was cut and -clipped until Washington feared that "a man must travel with a pair of -money scales in his pocket, or run the risk of receiving gold of one -fourth less by weight than it counts."[925] - -If there was not money enough, let the Government make more--what was a -government for if not for that? And if government could not make good -money, what was the good of government? Courts were fine examples of -what government meant--they were always against the common people. Away -with them! So ran the arguments and appeals of the demagogues and they -found an answer in the breasts of the thoughtless, the ignorant, and the -uneasy. This answer was broader than the demand for paper money, wider -than the protest against particular laws and specific acts of -administration. This answer also was, declared General Knox, "that the -property of the United States ... ought to be the common property of -all. And he that attempts opposition to this creed is an enemy to equity -and justice, and ought to be swept from off the face of the earth." Knox -was convinced that the discontented were "determined to annihilate all -debts, public and private."[926] - -Ideas and purposes such as these swayed the sixteen thousand men who, in -1787, followed Daniel Shays in the popular uprising in Massachusetts -against taxes, courts, and government itself.[927] "The restlessness -produced by the uneasy situation of individuals, connected with lax -notions concerning public and private faith, and erroneous[928] -opinions which confound liberty with an exemption from legal control, -produced ... unlicensed conventions, which, after voting on their -own constitutionality, and assuming the name of the people, arrayed -themselves against the legislature," was John Marshall's summary of the -forces that brought about the New England rebellion. - -The "army" of lawlessness, led by Shays, took the field, says Marshall, -"against taxes, and against the administration of justice; and the -circulation of a depreciated currency was required, as a relief from -the pressure of public and private burdens, which had become, it was -alleged, too heavy to be borne. Against lawyers and courts the strongest -resentments were manifested; and to such a dangerous extent were these -dispositions indulged, that, in many instances, tumultuous assemblages -of people arrested the course of law, and restrained the judges from -proceeding in the execution of their duty." - -"The ordinary recourse to the power of the country was found -insufficient protection," records Marshall, "and the appeals made to -reason were attended with no beneficial effect. The forbearance of the -government was attributed to timidity rather than moderation, and the -spirit of insurrection appeared to be organized into a regular system -for the suppression of courts."[929] Such was Marshall's analysis of the -Northern convulsion; and thus was strengthened in him that tendency of -thought started at Valley Forge, and quickened in the Virginia House of -Delegates. - -"It rather appears to me," wrote David Humphries to Washington, in an -attempt to explain the root of the trouble, "that there is a licentious -spirit prevailing among many of the people; a levelling principle; and a -desire of change; with a wish to annihilate all debts, public and -private."[930] Unjust taxes were given as the cause of the general -dislike of government, yet those who composed the mobs erupting from -this crater of anarchy, now located in New England, paid few or no -taxes. - -"High taxes are the ostensible cause of the commotions, but that they -are the real cause is as far remote from truth as light from darkness," -asserts Knox. "The people who are the insurgents have never paid any, or -but very little taxes," testifies this stanch Revolutionary officer. -"But," continues Knox, "they see the weakness of the government. They -feel at once their own poverty, compared with the opulent, and their own -force, and they are determined to make use of the latter, in order to -remedy the former."[931] - -This condition brought to a head a distrust of the good sense, justice, -and moderation of the people, which had been forming in the minds of -many of the best and ablest men of the time.[932] "The knaves and fools -of this world are forever in alliance," was the conclusion reached in -1786[933] by Jay, who thought that the people considered "liberty and -licentiousness" as the same thing.[934] The patient but bilious -Secretary of State felt that "the wise and the good never form the -majority of any large society, and it seldom happens that their measures -are uniformly adopted, or that they can always prevent being overborne -themselves by the strong and almost never-ceasing union of the wicked -and the weak."[935] The cautious Madison was equally doubtful of the -people: "There are subjects to which the capacities of the bulk of -mankind are unequal and on which they must and will be governed by those -with whom they happen to have acquaintance and confidence" was Madison's -judgment.[936] - -Washington, black with depression, decided and bluntly said "that -mankind, when left to themselves, are unfit for their own government." -Lee had suggested that Washington use his "influence" to quiet the -disorders in New England; but, flung back Washington, "_Influence_ is no -_government_. Let us have one by which our lives, liberties, and -properties will be secured, or let us know the worst at once.... To be -more exposed in the eyes of the world, and more contemptible than we -already are, is hardly possible."[937] - -"No morn ever dawned more favorably than ours did; and no day was ever -more clouded than the present.... We are fast verging to anarchy,"[938] -cried the great captain of our war for liberty. The wings of -Washington's wrath carried him far. "Good God!" cried he, "Who, besides -a Tory, could have foreseen, or a Briton predicted" the things that were -going on! "The disorders which have arisen in these States, the present -prospect of our affairs ... seems to me to be like the vision of a -dream. My mind can scarcely realize it as a thing in actual -existence.... There are combustibles in every State, which a spark might -set fire to."[939] - -Marshall echoed his old commander's views. The dreams of his youth were -fading, his confidence in the people declining. He records for us his -altered sentiments: "These violent, I fear bloody, dissensions in a -state [Massachusetts] I had thought inferior in wisdom and virtue to no -one in the union, added to the strong tendency which the politics of -many eminent characters among ourselves have to promote private and -public dishonesty, cast a deep shade over the bright prospect which the -revolution in America and the establishment of our free governments had -opened to the votaries of liberty throughout the globe. I fear, and -there is no opinion more degrading to the dignity of man, that these -have truth on their side who say that man is incapable of governing -himself."[940] Thus wrote Marshall in 1787, when he was not yet -thirty-two years old. - -But Jefferson in Paris was beholding a different picture that -strengthened the views which he and Marshall held in common when -America, in arms, challenged Great Britain. "The Spirit of resistance to -government is so valuable on certain occasions that I wish it to be -always kept alive. It will often be exercised when wrong, but better so -than not to be exercised at all. I like a little rebellion now & then. -It is like a storm in the atmosphere." So wrote Jefferson after the -Massachusetts insurrection had been quelled.[941] - -The author of our Declaration of Independence was tasting the delights -of the charming French Capital at this time, but he also was witnessing -the shallowness and stupidity of the peculiarly weak royalty and -nobility; and although it was this same Royal Government that had aided -us with men and money in our struggle to throw off the yoke of England, -Jefferson's heart grew wrathful against it and hot for popular rule in -France. Yet in the same apostrophe to rebellion, Jefferson declares that -the French people were too shallow for self-rule. "This [French] -nation," writes Jefferson, "is incapable of any serious effort but under -the word of command."[942] - -After having had months to think about it, this enraptured enthusiast of -popular upheaval spread his wings and was carried far into crimson -skies. "Can history produce an instance of rebellion so honourably -conducted?" exclaimed Jefferson, of the Massachusetts anarchical -outburst, nearly a year after it had ended; and continued thus:-- - -"God forbid! we should ever be 20 years without such a rebellion.... -What country can preserve its liberties if their rulers are not warned -from time to time that their people preserve the spirit of resistance? -Let them take arms!... What signify a few lives lost in a century or -two? The tree of liberty must be refreshed from time to time with the -blood of patriots & tyrants. It is its natural manure."[943] - -Thus did his contact with a decadent monarchy on the one hand and an -enchanting philosophy on the other hand, help to fit him for the -leadership of American radicalism. No better training for that mission -could have been afforded. French thought was already challenging all -forms of existing public control; it was a spirit Gamaliel which found -in Jefferson an eager Saul at its feet; and American opinion was -prepared for its doctrines. In the United States general dislike and -denunciation of the established governments had uncovered the feeling -against government itself which lay at the root of opposition to any -stronger one. - -The existing American system was a very masterpiece of weakness. The -so-called Federal Government was like a horse with thirteen bridle -reins, each held in the hands of separate drivers who usually pulled the -confused and powerless beast in different directions. Congress could -make treaties with foreign nations; but each of the States could and -often did violate them at will. It could borrow money, but could not -levy taxes or impose duties to pay the debt. Congress could get money -only by making humble requests, called "requisitions," on the -"sovereign" Commonwealths. It had to depend upon the whims of the -various States for funds to discharge principal and interest of public -obligations; and these springs of revenue, when not entirely dry, -yielded so little that the Federal establishment was like to die of -financial thirst.[944] - -The requisitions of Congress upon the various States for money to pay -the National obligations to foreign creditors were usually treated with -neglect and often with contempt by those jealous and pompous -"Sovereignties." "Requisitions are a perfect nullity where thirteen -sovereign, independent, disunited States are in the habit of discussing -and refusing compliance with them at their option. Requisitions are -actually little better than a jest and a by-word throughout the land. If -you tell the legislatures they have violated the treaty of peace, and -invaded the prerogatives of the confederacy, they will laugh in your -face."[945] Thus raged Washington. "Congress cannot command money" even -to redeem Americans held in slavery in Algiers,[946] testified the -powerless and despondent Secretary of State. Indeed, Congress amounted -to so little that the delegates from many States often refused to -attend.[947] - -Though debts were great and financial confusion maddening, they -furnished no solid excuse for the failure of the States to enable -Congress to preserve American honor by the payment of our admitted -National debt. Jay reviewed the situation and showed that "the resources -of the country ... notwithstanding all appearances to the contrary, are -abundant.... Our country is fertile, abounding in useful productions, -and those productions in demand and bearing a good price."[948] The -general opinion appears to have been that the people did not want to -support the Government. - -"The treasury is empty, though the country abounds in resources, and our -people are far more unwilling than unable to pay taxes," wrote Jay, -early in 1787.[949] Madison excused his support of the bill authorizing -tobacco to be taken for specie in payment of taxes, upon the ground that -it "could not be rejected without ... exciting some worse project of a -popular cast";[950] and "by a fear that some greater evil under the name -of relief to the people would be substituted."[951] Debt "made it -extremely inconvenient to most people to submit to a regular -government," was the conclusion Rutledge finally reached.[952] - -But, whatever the cause, the States did not act. Washington thought it a -combination of the scheming of demagogues and the ignorance and -dishonesty of the people. "I think there is more wickedness than -ignorance mixed in our councils.... Ignorance and design are difficult -to combat.... To be so fallen! so lost!... Virtue, I fear has in a great -degree taken its departure from our land and the want of a disposition -to do justice is the source of the national embarrassments; for, -whatever guise or colorings are given to them, this I apprehend is the -origin of the evils we now feel."[953] Such was Washington's cry of -despair four years after he had wrested American liberty from Great -Britain. - -Look where one will among the class of men of whom Washington was the -highest representative, one finds that they believed the fountain head -of the country's desperate conditions to be in the people themselves. -Jay put this opinion in a nutshell when he said, "The mass of men are -neither wise nor good."[954] Not that these leaders despaired that an -American People would finally be evolved who should realize the exalted -expectations of the patriot leaders of the Revolution; not that out of -the flux of popular heedlessness and dishonor, indifference and -disorder, idleness and avarice, the nobler qualities of human nature -would not, in the end, bring forth a nation and rule it for the -happiness and well-being of its people. But they thought that only a -strong government could fashion the clay and breathe into its nostrils -the breath of life. "Virtue, like the other resources of a country, can -only be drawn to a point and exerted by strong circumstances ably -managed, or a strong government ably administered," said Jay.[955] - -The shield of all this turmoil and baseness was the State Governments. -"Their unreasonable jealousy of that body [Congress] and of one -another ... will, if there is not a change in the system, be our -downfall as a nation," exclaimed Washington only a few months after -peace had been established.[956] It was the States, he declared, which -made the Federal establishment "a half-starved, limping government, that -appears to be always moving upon crutches and tottering at every -step."[957] - -It was the States which always were thwarting every plan for the general -welfare; the States which were forever impairing the National -obligations; the States which bound hand and foot the straw man of the -central power, clothed it in rags and made it a mere scarecrow of -government. And it was State pride, prejudice, and ignorance which gave -provincial demagogues their advantage and opportunity. The State -Governments were the "people's" Governments; to yield State -"sovereignty" was to yield the "people's" power over their own affairs, -shouted the man who wished to win local prominence, power, and office. - -Those who did not want to pay taxes and who disliked much government of -any kind felt that they could make shift with mere State -establishments.[958] "A thirst for power, and the bantling, I had liked -to have said monster for sovereignty, which have taken such fast hold of -the States individually, will, when joined by the many whose personal -consequence in the control of State politics will in a manner be -annihilated, form a strong phalanx against"[959] the National -Constitution, prophesied the leader of the Revolution. - -But it was not alone the powerlessness of the Federal Government to keep -the National faith, plighted by solemn treaties with foreign -Governments; or to uphold the National honor by paying debts made to win -American independence, that wrought that bloodless revolution[960] which -produced the Constitution. Nor was it the proud and far-seeing plans of -a few great minds whose heart's desire was to make the American People a -Nation. - -Finance, commerce, and business assembled the historic Philadelphia -Convention; although it must be said that statesmanship guided its -turbulent councils. The senseless and selfish nagging at trade in which -the States indulged, after peace was declared, produced a brood of civil -abuses as noisome as the military dangers which State control of troops -had brought forth during the Revolution. Madison truly said that "most -of our political evils may be traced up to our commercial ones."[961] -The States passed tariff laws against one another as well as against -foreign nations; and, indeed, as far as commerce was concerned, each -State treated the others as foreign nations.[962] There were -retaliations, discriminations, and every manner of trade restrictions -and impediments which local ingenuity and selfishness could devise. - -The idea of each State was to keep money from going outside its borders -into other States and to build up its own business and prosperity at the -expense of its neighbors.[963] States having no seaports were in a -particularly hard case. Madison picturesquely describes their unhappy -plight: "New Jersey placed between Phil^a & N. York, was likened to a -cask tapped at both ends; And N. Carolina, between Virg^a & S. Carolina -to a patient bleeding at both Arms."[964] Merchants and commercial -bodies were at their wits' end to carry on business and petitioned for a -general power over commerce.[965] - -The commercial view, as stated by Madison, was that "the National -Government should be armed with positive and compleat authority in all -cases which require uniformity; such as the regulation of trade, -including the right of taxing both exports & imports, the fixing the -terms and forms of naturalization, &c., &c." - -Madison then lays down this extreme Nationalist principle as the central -article of his political faith: "Over and above this positive power, a -negative in _all cases whatsoever_ on the legislative acts of the -States, as heretofore exercised by the Kingly prerogative, appears to me -to be absolutely necessary, and to be the least possible encroachment on -the State jurisdictions. Without this defensive power, every positive -power that can be given on paper will be evaded & defeated. The States -will continue to invade the National jurisdiction, to violate treaties -and the law of nations & to harass each other with rival and spiteful -measures dictated by mistaken views of interest."[966] - -Too much emphasis cannot be put upon the fact that the mercantile and -financial interests were the weightiest of all the influences for the -Constitution; the debtors and agricultural interests the strongest -groups against it. It deserves repetition, for a proper understanding of -the craft and force practiced by both sides in the battle over -ratification, that those who owed debts were generally against the -Constitution and practically all to whom debts were due were for the -new Government. "I have little prospect of bringing Banks [a debtor] to -terms as the Law of this State now stands," wrote a Virginia agent of a -creditor, "but I hope when the New Federal constitution is adopted that -the Laws will be put upon a better footing.... Three fourths of the -people that oppose it [the Constitution] are those that are deeply in -debt & do not wish to pay."[967] - -London merchants were very anxious for a new order of things. "I hope -ere long your Federal Government will be established, and that honest -Men will again have the Assendency in your Country, for without such a -change it must ever remain a poor place to live in," was the opinion of -a business man living in the British Capital.[968] - -A few weeks after Virginia ratified the Constitution, Minton Collins -reported to his principal about a person named Banks, who, says Collins, -"begins to be a little alarmed from the adoption of the Federal -Constitution. I hope it will alarm every such R[asca]l. He had run his -rig long enough for he boasts of being worth from 150,000£ to 200,000 -pounds; this is not bad for a man that six years ago could scarcely -raise a suit of clothes to his back."[969] - -Marshall was becoming a prosperous lawyer and his best clients were from -the mercantile interests. His family relationships were coming to be -more and more with the property classes. He had no ambition for a -political career, which might have given to his thinking and conclusions -a "more popular cast," to use Madison's contemptuous phrase. Thus -Marshall's economic and political convictions resulting from experience -and reasoning were in harmony with his business connections and social -environment. - -Undoubtedly he would have taken the same stand had none of these -circumstances developed; his constructive mind, his conservative -temperament, his stern sense of honor, his abhorrence of disorder and -loose government, his army experience, his legislative schooling, his -fidelity to and indeed adoration of Washington, would have surely placed -him on the side of the Constitution. Still, the professional and social -side of his life should not be ignored, if we are to consider fully all -the forces which then surrounded him, and which, with ever-growing -strength, worked out the ultimate Marshall. - -Jefferson, in France, experienced only the foreign results of the sharp -and painful predicament which John Marshall was sadly witnessing in -America. While not busy with the scholars and society of the French -Capital, Jefferson had been engaged in the unhappy official task of -staving off our French creditors and quieting, as well as he could, -complaints of our trade regulations and other practices which made it -hard and hazardous for the French to do business with us.[970] He found -that "the nonpaiment of our debts and the want of energy in our -government ... discourage a connection with us";[971] and "want of -punctuality & a habitual protection of the debtor" prevented him from -getting a loan in France to aid the opening of the Potomac.[972] All -this caused even Jefferson to respond to the demand for unifying the -American Government as to foreign nations; but he would not go further. -"Make the States one as to every thing connected with foreign nations, & -several as to everything purely domestic," counseled Jefferson while the -Constitutional Convention was quarreling at Philadelphia.[973] - -But he did not think badly of the weakness of the Articles of -Confederation which so aroused the disgust, anger, and despair of -Washington, Madison, Jay, and other men of their way of thinking, who -were on the ground. "With all the imperfections of our present -government [Articles of Confederation]," wrote Jefferson in Paris, in -1787, "it is without comparison the best existing or that ever did -exist";[974] and he declared to one of his French friends that "the -confederation is a wonderfully perfect instrument."[975] Jefferson found -but three serious defects in the Articles of Confederation: no general -rule for admitting States; the apportionment of the State's quota of -money upon a land instead of a population basis; and the imperfect power -over treaties, import duties, and commerce.[976] - -He frankly said: "I am not a friend to a very energetic government"; and -he thought that "our governments will remain virtuous for many -centuries"--but added with seer-like vision: "as long as ... there shall -be vacant lands in America."[977] Jefferson wished the United States "to -practice neither commerce nor navigation, but to stand with respect to -Europe precisely on the footing of China."[978] Far from thinking that -the low state of our credit was a bad thing for us, he believed that its -destruction would work an actual benefit to America. "Good will arise -from the destruction of our credit," he asserted in a letter to Stuart -written from Paris in 1786. "I see nothing else which can restrain our -disposition to luxury, and the loss of those manners which alone can -preserve republican government."[979] - -We have now seen the state of the country and the condition of the -people, their situation and habits, their manner of life and trend of -feeling. We have witnessed the change thus wrought in the leading men -during this period, so destructive of confidence in the wisdom or virtue -of majorities, at least on first impulse and without abundant time for -reflection and second thought. Thus we have measured, with some degree -of accuracy, the broad and well-marked space that separated the hostile -forces which were to meet in what was for the moment a decisive conflict -when Virginia's Constitutional Convention should assemble at Richmond. - -In one camp the uninformed and credulous, those who owed debts and -abhorred government, with a sprinkling among them of eminent, educated, -and well-meaning men who were philosophic apostles of theoretical -liberty; and in the other camp men of property and lovers of order, the -trading and moneyed interests whose first thought was business; the -veterans of the Revolution who had learned on the battlefield the need -of a strong central Government; and, here and there, a prophetic and -constructive mind who sought to build a Nation. John Marshall was one of -the latter; and so he promptly took his place by the side of his old -general and leader in the camp of the builders. - -At last the supreme hour is striking. The Virginians, about to assemble -in State Convention, will determine the fate of that unauthorized and -revolutionary plan for a National Government,[980] the National -Constitution. The movement for a second general Convention to have -another try at framing a Constitution has made distinct progress by the -time the Virginia representatives gather at the State Capital.[981] -There is widespread, positive, and growing resentment at the proposed -new form of government; and if Virginia, the largest and most populous -of the States, rejects it, the flames of opposition are certain to break -out in every part of the country. As Washington asserts, there is, -indeed, "combustible material" everywhere. - -Thus it is that the room where Virginia's Convention is about to meet in -June, 1788, will become the "bloody angle" in the first great battle for -Nationalism. And Marshall will be there, a combatant as he had been at -Great Bridge and Brandywine. Not for John Marshall the pallid rôle of -the trimmer, but the red-blooded part of the man of conviction. - - -FOOTNOTES: - -[893] _Writings_: Conway, i, 69 _et seq._ - -[894] "_Common Sense_ had a prodigious effect." (Franklin to Le -Veillard, April 15, 1787; _Writings_: Smyth, ix, 558.) "Its popularity -was unexampled.... The author was hailed as our angel sent from Heaven -to save all from the horrors of Slavery.... His pen was an appendage [to -the army] almost as necessary and formidable as its cannon." -(Cheetenham, 46-47, 55.) In America alone 125,000 copies of _Common -Sense_ were sold within three months after the pamphlet appeared. -(Belcher, i, 235.) - -"Can nothing be done in our Assembly for poor Paine? Must the merits of -_Common Sense_ continue to glide down the stream of time unrewarded by -this country? His writings certainly have had a powerful effect upon the -public mind. Ought they not, then, to meet an adequate return?" -(Washington to Madison, June 12, 1784; _Writings_: Ford, x, 393; and see -Tyler, i, 458-62.) In the Virginia Legislature Marshall introduced a -bill for Paine's relief. (_Supra_, chap, VI.) - -[895] Graydon, 358. - -[896] _Common Sense_: Paine; _Writings_: Conway, i, 61. Paine's genius -for phrase is illustrated in the _Crisis_, which next appeared. "These -are the times that try men's souls"; "Tyranny like hell, is not easily -conquered"; "The summer soldier and the sunshine patriot," are examples -of Paine's brilliant gift. - -[897] Moore's _Diary_, ii, 143-44. Although this was a British opinion, -yet it was entirely accurate. - -[898] "They will _rise_ and for lack of argument, say, M^r. Speaker, -this measure will never do, the _People_ Sir, will never bear it.... -These small Politicians, returned home, ... tell their Constituents such -& such measures are taking place altho' I did my utmost to prevent -it--The People must take care of themselves or they are undone. Stir up -a County Convention and by Trumpeting lies from Town to Town get one [a -convention] collected and Consisting of Persons of small Abilities--of -little or no property--embarrass'd in their Circumstances--and of no -great Integrity--and these Geniouses vainly conceiving they are -competent to regulate the affairs of State--make some hasty incoherent -Resolves, and these end in Sedition, Riot, & Rebellion." (Sewell to -Thatcher, Dec., 1787; _Hist. Mag._ (2d Series), vi, 257.) - -[899] More than a decade after the slander was set afoot against Colonel -Levin Powell of Loudoun County, Virginia, one of the patriot soldiers of -the Revolution and an officer of Washington, that he favored -establishing a monarchy, one of his constituents wrote that "detraction -& defamation are generally resorted to promote views injurious to -you.... Can you believe it, but it is really true that the old & often -refuted story of your predilection for Monarchy is again revived." -(Thomas Sims to Colonel Levin Powell, Leesburg, Virginia, Feb. 5 and 20, -1801; _Branch Historical Papers_, i, 58, 61.) - -[900] Watson, 262-64. This comic prophecy that the National Capital was -to be the fortified home of a standing army was seriously believed by -the people. Patrick Henry urged the same objection with all his dramatic -power in the Virginia Convention of 1788. So did the scholarly Mason. -(See _infra_, chaps. XI and XII.) - -[901] Graydon, 392-93. - -[902] _Memorials of the Society of the Cincinnati_, 1790, 3-24. - -[903] Jefferson to Washington, Nov. 14, 1786; _Works_: Ford, v, 222-23; -and see Jefferson's denunciation of the Cincinnati in Jefferson to -Madison, Dec. 28, 1794; _ib._, viii, 156-57. But see Jefferson's fair -and moderate account of the Cincinnati before he had learned of its -unpopularity in America. (Jefferson to Meusnier, June 22, 1786; _ib._, -V, 50-56.) - -[904] The same who broke the quorum in the Continental Congress. -(_Supra_, chap. IV.) - -[905] Burke: _Considerations on the Society of the Order of Cincinnati_; -1784. - -[906] Mirabeau: _Considerations on the Order of Cincinnati_; 1786. -Mirabeau here refers to the rule of the Cincinnati that the officer's -eldest son might become a member of the order, as in the Military Order -of the Loyal Legion of the present time. - -[907] As quoted in Hudson: _Journalism in the United States_, 158. - -[908] Madison to James Madison, Nov. 1, 1786; _Writings_: Hunt, ii, 278. - -[909] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 212. - -[910] See Weld, i, 114-15, as a fair example of foreign estimate of this -American characteristic at that period. - -[911] See chap. II, vol. II, of this work. - -[912] Private debts which Virginia planters alone owed British merchants -were "20 or 30 times the amount of all money in circulation in that -state." (Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 17-18; -and see Jefferson to McCaul, April 19, 1786; _ib._, 88.) - -[913] "It cannot perhaps be affirmed that there is gold & silver en^o in -the Country to pay the next tax." (Madison to Monroe, June 4, 1786; -_Writings_: Hunt, ii, 245.) - -[914] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 27. - -[915] Jefferson to Meusnier, Jan. 24, 1786: _Works_: Ford, v, 27. - -[916] Moore's _Diary_, ii, 425-26. The merchants of Philadelphia shut -their shops; and it was agreed that if Congress did not substitute -"solid money" for paper, "all further resistance to" Great Britain "must -be given up." (_Ib._) - -[917] Jefferson to McCaul, April 19, 1786; _Works_: Ford, v, 90; also to -Wm. Jones, Jan. 5, 1787; _ib._, 247.--"Paiment was made me in this money -when it was but a shadow." - -[918] Livingston to Jay, July 30, 1789; _Jay_: Johnston, iii, 373-74. - -[919] Fithian, 91. - -[920] Virginia's paper money experiment was the source of many lawsuits -in which Marshall was counsel. See, for example, Pickett _vs._ Claiborne -(Call, iv, 99-106); Taliaferro _vs._ Minor (Call, i, 456-62). - -[921] The House of Delegates toward the end of 1786 voted 84 to 17 -against the paper money resolution. (Madison to James Madison, Nov. 1, -1786; _Writings_: Hunt, ii, 277.) - -[922] "The advocates for paper money are making the most of this handle. -I begin to fear exceedingly that no efforts will be sufficient to parry -this evil." (Madison to Monroe, June 4, 1786; _ib._, 245.) - -[923] Madison to Jefferson, Aug. 12, 1786; _ib._, 259. - -[924] "Enclosed are one hundred Dollars of new Emmission Money which -Col. Steward desires me to have exchanged for Specie. Pray, inform him -they are all counterfeit." (Gerry to King, April 7, 1785; King, i, 87.) - -[925] Washington to Grayson, Aug. 22, 1785; _Writings_: Ford, X, 493-94. - -[926] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote -to p. 407-08. - -[927] Minot: _History of the Insurrections in Massachusetts in 1786_ (2d -ed.), 1810. - -[928] Printed in the first edition (1807) "enormous"--a good example of -the haste of the first printing of Marshall's _Life of Washington_. (See -vol. III of this work.) - -[929] Marshall, ii, 117. - -[930] _Ib._, 118. - -[931] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote -to 408. - -[932] Shays's Rebellion was only a local outburst of a general -feeling throughout the United States. Marshall says, "those causes of -discontent ... existed in every part of the union." (Marshall, ii, 117.) - -[933] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 213. - -[934] Jay to Reed, Dec. 12, 1786; _ib._, 222. - -[935] Jay to Price, Sept. 27, 1786; _ib._, 168. - -[936] Madison to Randolph, Jan. 10, 1788; _Writings_: Hunt, v, 81. - -[937] Washington to Lee, Oct. 31, 1786; _Writings_: Ford, xi, 76-77. - -[938] Washington to Madison, Nov. 5, 1786; _ib._, 81. - -[939] Washington to Knox, Dec. 26, 1786; _ib._, 103-04. And Washington -wrote to Lafayette that "There are seeds of discontent in every part of -the Union." (_Writings_: Sparks, ix, 263.) - -[940] Marshall to James Wilkinson, Jan. 5, 1787; _Amer. Hist. Rev._, -xii, 347-48. - -[941] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 265. - -[942] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 263. - -[943] Jefferson to Smith, Nov. 13, 1787; _ib._, 362. - -[944] "The payments from the States under the calls of Congress have -in no year borne any proportion to the public wants. During the last -year ... the aggregate payments ... fell short of 400,000 doll^{rs}, a -sum neither equal to the interest due on the foreign debts, nor even to -the current expenses of the federal Government. The greatest part of -this sum too went from Virg^a, which will not supply a single shilling -the present year." (Madison to Jefferson, March 18, 1786; _Writings_: -Hunt, ii, 228.) - -[945] Washington to Jay, Aug. 1, 1786; _Writings_: Ford, xi, 54-55. - -[946] Jay (Secretary of State under the Confederation) to Jefferson, -Dec. 14, 1786; _Jay_: Johnston, iii, 223. - -[947] "We are wasting our time & labour in vain efforts to do business" -(because of State delegates not attending), wrote Jefferson in 1784. -(Jefferson to Washington, March 15, 1784; _Works_: Ford, iv, 266.) And -at the very climax of our difficulties "a sufficient number of States to -do business have not been represented in Congress." (Jay to Wm. -Carmichael, Jan. 4, 1786; _Jay_: Johnston, iii, 225.) During half of -September and all of October, November, December, January, and February, -nine States "have not been represented in congress"; and this even after -the Constitution had been adopted. (Jay to Jefferson, March 9, 1789; -_Jay_: Johnston, iii, 365.) - -[948] Jay to Jefferson, Dec. 14, 1786; _Jay_: Johnston, iii, 223-24. And -Melancton Smith declared that "the farmer cultivates his land and reaps -the fruit.... The merchant drives his commerce and none can deprive him -of the gain he honestly acquires.... The mechanic is exercised in his -art, and receives the reward of his labour." (1797-98; Ford: _P. on C._, -94.) Of the prosperity of Virginia, Grigsby says, "our agriculture was -most prosperous, and our harbors and rivers were filled with ships. The -shipping interest ... was really advancing most rapidly to a degree of -success never known in the colony." (Grigsby, i, footnote to p. 82; and -see his brilliant account of Virginia's prosperity at this time; _ib._, -9-19.) "The spirit of industry throughout the country was never greater. -The productions of the earth abound," wrote Jay to B. Vaughan, Sept. 2, -1784. (_Jay_: Johnston, iii, 132.) - -[949] Jay to John Adams, Feb. 21, 1787; _Jay_: Johnston, iii, 235. Jay -thought that the bottom of the trouble was that "relaxation in -government and extravagance in individuals create much public and -private distress, and much public and private want of good faith." -(_Ib._, 224.) - -[950] Madison to Jefferson, Dec. 4, 1786; _Writings_: Hunt, ii, 293. -"This indulgence to the people as it is called & considered was so -warmly wished for out of doors, and so strenuously pressed within that -it could not be rejected without danger of exciting some worse project -of a popular cast." (_Ib._) - -[951] Madison to Washington, Dec. 24, 1786; _ib._, 301. "My acquiescence -in the measure was against every general principle which I have -embraced, and was extorted by a fear that some greater evil under the -name of relief to the people would be substituted." (_Ib._) - -[952] Rutledge to Jay, May 2, 1789; _Jay_: Johnston, iii, 368. - -[953] Washington to Jay, May 18, 1786; _Writings_: Ford, xi, 31-32. - -[954] Jay to Washington, June 27, 1786; _Jay_: Johnston, iii, 204. - -[955] _Ib._, 205. - -[956] Washington to Harrison, Jan. 18, 1784; _Writings_: Ford, x, 345. - -[957] _Ib._ - -[958] See Madison's masterful summary of the wickedness, weakness, and -folly of the State Governments in _Writings_: Hunt, ii, 361-69. - -[959] Washington to Jay, March 10, 1787; _Writings_: Ford, xi, 125. - -[960] See _supra_, chap. VI. - -[961] Madison to Jefferson, March 18, 1786; _Writings_: Hunt, ii, 228. -"Another unhappy effect of a continuance of the present anarchy of our -commerces will be a continuance of the unfavorable balance on it, which -by draining us of our metals, furnishes pretexts for the pernicious -substitution of paper money, for indulgencies to debtors, for -postponements of taxes." (_Ib._) - -[962] Virginia carefully defined her revenue boundaries as against -Pennsylvania and Maryland; and provided that any vessel failing to enter -and pay duties as provided by the Virginia tariff laws might be seized -by any person and prosecuted "one half to the use of the informer, and -the other half to the use of the commonwealth." (Va. Statutes at Large -(1785), chap. 14, 46.) - -Virginia strengthened her tariff laws against importations by land. "If -any such importer or owner shall unload any such wagon or other carriage -containing any of the above goods, wares, or merchandise brought into -this state by land without first having entered the same as directed -above, every such wagon or other carriage, together with the horses -thereto belonging and all such goods wares and merchandise as shall be -brought therein, shall be forfeited and recovered by information in the -court of the county; two-thirds to the informer and one-third toward -lessening the levy of the county where such conviction shall be made." -(_Ib._) - -Even Pennsylvania, already the principal workshop of the country, while -enacting an avowedly protective tariff on "Manufactures of Europe and -Other foreign parts," included "cider, malted barley or grain, fish, -salted or dried, cheese, butter, beef, pork, barley, peas, mustard, -manufactured tobacco" which came, mostly, from sister States. The -preamble declares that the duties are imposed to protect "the artisans -and mechanics of this state" without whose products "the war could not -have been carried on." - -In addition to agricultural articles named above, the law includes -"playing cards, hair powder, wrought gold or silver utensils, polished -or cut stones, musical instruments, walking canes, testaments, psalters, -spelling books or primers, romances, novels and plays, and horn or -tortoise shell combs," none of which could be called absolutely -indispensable to the conduct of the war. The preamble gives the usual -arguments for protective tariffs. It is the first protective tariff law, -in the present-day sense, ever passed. (Pa. Statutes at Large (1785), -99.) - -[963] Even at the present time the various States have not recovered -from this anti-National and uneconomic practice, as witness the tax laws -and other statutes in almost every State designed to prevent investments -by the citizens of that State in industries located in other States. -Worse, still, are the multitude of State laws providing variable control -over railways that are essentially National. - -[964] _Writings_: Hunt, ii, 395. - -[965] Marshall (1st ed.), v, 76-79. - -[966] Madison to Washington, April 16, 1787; _Writings_: Hunt, ii, -345-46. This ultra-Nationalist opinion is an interesting contrast to -Madison's States' Rights views a few years later. (See _infra_, vol. II, -chaps. II, III, and IV.) - -[967] Minton Collins at Richmond to Stephen Collins at Philadelphia, May -8, 1788; MS., Lib. Cong. - -[968] Sam Smith in London to Stephen Collins in Philadelphia, July 21, -1788; _ib._ - -[969] Minton Collins to Stephen Collins, Aug. 9, 1788; _ib._ - -[970] "Vergennes complained, and with a good deal of stress, that they -did not find a sufficient dependence on arrangements taken with us. This -was the third time, too, he had done it.... He observed too, that the -administration of justice with us was tardy, insomuch that their -merchants, when they had money due to them within our States, considered -it as desperate; and that our commercial regulations, in general, were -disgusting to them." (Jefferson's Report; _Works_: Ford, iv, 487.) - -[971] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74. - -[972] Jefferson to Madison, Dec. 16, 1786; _ib._, v, 230. - -[973] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318; also -332; and Jefferson to Wythe, Sept. 16, 1787; _ib._, 340. - -[974] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318. - -[975] Jefferson to Meusnier, Jan. 24, 1786; _ib._, 8. - -[976] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 8. - -[977] Jefferson to Madison, Dec. 20, 1787; _ib._, 373-74. Jefferson -concluded, prophetically, that when the people "get piled upon one -another, in large cities, as in Europe, they will become as corrupt as -Europe." (_Ib._) - -[978] Jefferson to Hogendorp, Oct. 13, 1785; _ib._, iv, 469. - -[979] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74. - -[980] See _infra_, chap. IX. - -[981] For a careful study of this important but neglected subject see -Professor Edward Payson Smith's paper in Jameson, 46-115. - - - - -CHAPTER IX - -THE STRUGGLE FOR RATIFICATION - - The plot thickens fast. A few short weeks will determine the - political fate of America. (Washington.) - - -On Sunday, June 1, 1788, the dust lay deep in the streets of the little -town of Richmond. Multitudes of horses were tethered here and there or -stabled as best the Virginia Capital's meager accommodations permitted. -Cavalcades of mounted men could be seen from Shockoe Hill, wending their -way over the imperfect earthen roads from every direction to the center -of interest.[982] Some of these had come hundreds of miles and arrived -in the garb of the frontier, pistol and hanger at belt.[983] Patrick -Henry, prematurely old at fifty-two, came in a one-horse, uncovered gig; -Pendleton, aged, infirm, and a cripple, arrived in a phaeton.[984] - -As we have seen, it was very hard for members of Virginia's Legislature -to get to the seat of the State Government even from counties not far -distant; and a rainy season, or even one week's downpour during the -latter part of May, would have kept large numbers of the members of the -Virginia Convention from reaching their destination in time and perhaps -have decided the impending struggle[985] before it began. The year's -great social and sporting event added to the throng and colored the dark -background of political anxiety and apprehension with a faint tinge of -gayety.[986] - -Although seven months had elapsed since the Federal Convention had -finished its work, there was, nevertheless, practically no accurate -knowledge among the people of the various parts of the "New Plan" of -government. Even some members of the Virginia State Convention had never -seen a copy of the Constitution until they arrived in Richmond to -deliberate upon it and decide its fate.[987] Some of the most inquiring -men of this historic body had not read a serious or convincing argument -for it or against it.[988] "The greater part of the members of the -[Virginia] convention will go to the meeting without information on the -subject," wrote Nicholas to Madison immediately after the election of -delegates.[989] - -One general idea, however, had percolated through the distances and -difficulties of communication to the uninformed minds of the people--the -idea that the new Constitution would form a strong, consolidated -National Government, superior to and dominant over the State -Governments; a National Sovereignty overawing State Sovereignties, -dangerous to if not entirely destructive of the latter; a general and -powerful authority beyond the people's reach, which would enforce -contracts, collect debts, impose taxes; above all, a bayonet-enforced -rule from a distant point, that would imperil and perhaps abolish -"liberty."[990] - -So a decided majority of the people of Virginia were against the -proposed fundamental law;[991] for, as in other parts of the country, -few of Virginia's masses wanted anything stronger than the weak and -ineffective Government of the State and as little even of that as -possible. Some were "opposed to any system, was it even sent from -heaven, which tends to confirm the union of the States."[992] Madison's -father reported the Baptists to be "generally opposed to it"; and the -planters who went to Richmond to sell their tobacco had returned foes of -the "new plan" and had spread the uprising against it among others "who -are no better acquainted with the necessity of adopting it than they -themselves."[993] At first the friends of the Constitution deceived -themselves into thinking that the work of the Philadelphia Convention -met with approval in Virginia; but they soon found that "the tide next -took a sudden and strong turn in the opposite direction."[994] Henry -wrote to Lamb that "Four-fifths of our inhabitants are opposed to the -new scheme of government"; and he added that south of the James River "I -am confident nine-tenths are opposed to it."[995] - -That keen and ever-watchful merchant, Minton Collins, thus reported to -the head of his commercial house in Philadelphia: "The New Federal -Constitution will meet with much opposition in this State [Virginia] for -many pretended patriots has taken a great deal of pains to poison the -minds of the people against it.... There are two Classes here who oppose -it, the one is those who have power & are unwilling to part with an atom -of it, & the others are the people who owe a great deal of money, and -are very unwilling to pay, as they are afraid this Constitution will -make them _Honest Men_ in spite of their teeth."[996] - -And now the hostile forces are to meet in final and decisive conflict. -Now, at last, the new Constitution is to be really _debated_; and -debated openly before the people and the world. For the first time, too, -it is to be opposed in argument by men of the highest order in ability, -character, and standing--men who cannot be hurried, or bullied, or -shaken, or bought. The debates in the Virginia Convention of 1788 are -the only masterful discussions on _both_ sides of the controversy that -ever took place. - -While the defense of the Constitution had been very able in Pennsylvania -and Massachusetts (and later in New York was to be most brilliant), the -attack upon it in the Virginia Convention was nowhere equaled or -approached in power, learning, and dignity. Extravagant as the assertion -appears, it nevertheless is true that the Virginia contest was the only -real _debate_ over the whole Constitution. It far surpassed, especially -in presenting the reasons against the Constitution, the discussion in -the Federal Convention itself, in weight of argument and attractiveness -of presentation, as well as in the ability and distinction of the -debaters. - -The general Federal Convention that framed the Constitution at -Philadelphia was a secret body; and the greatest pains were taken that -no part of its proceedings should get to the public until the -Constitution itself was reported to Congress. The Journals were confided -to the care of Washington and were not made public until many years -after our present Government was established. The framers of the -Constitution ignored the purposes for which they were delegated; they -acted without any authority whatever; and the document, which the -warring factions finally evolved from their quarrels and dissensions, -was revolutionary.[997] This capital fact requires iteration, for it is -essential to an understanding of the desperate struggle to secure the -ratification of that then unpopular instrument. - -"Not one legislature in the United States had the most distant idea when -they first appointed members for a [Federal] convention, entirely -commercial ... that they would without any warrant from their -constituents, presume on so bold and daring a stride," truthfully writes -the excitable Gerry of Massachusetts in his bombastic denunciation of -"the fraudulent usurpation at Philadelphia."[998] The more reliable -Melancton Smith of New York testifies that "previous to the meeting of -the Convention the subject of a new form of government had been little -thought of and scarcely written upon at all.... The idea of a government -similar to" the Constitution "never entered the minds of the -legislatures who appointed the Convention and of but very few of the -members who composed it, until they had assembled and heard it proposed -in that body."[999] - -"Had the idea of a total change [from the Confederation] been started," -asserts the trustworthy Richard Henry Lee of Virginia, "probably no -state would have appointed members to the Convention.... Probably not -one man in ten thousand in the United States ... had an idea that the -old ship [Confederation] was to be destroyed. Pennsylvania appointed -principally those men who are esteemed aristocratical.... Other -States ... chose men principally connected with commerce and the -judicial department." Even so, says Lee, "the non-attendance of eight or -nine men" made the Constitution possible. "We must recollect, how -disproportionately the democratic and aristocratic parts of the -community were represented" in this body.[1000] - -This "child of fortune,"[1001] as Washington called the Constitution, -had been ratified with haste and little or no discussion by Delaware, -New Jersey, Connecticut, and Georgia. The principal men in the first -three Commonwealths felt that the Constitution gave those States large -commercial advantages and even greater political consequence;[1002] and -Georgia, with so small a population as to be almost negligible, felt the -need of some strong Government to defend her settlers against the -Indians. It is doubtful whether many of the people of these four States -had read the Constitution or had heard much about it, except that, in a -general way, they were to be better off under the new than under the old -arrangement. Their ratification carried no weight other than to make up -four of the nine States necessary to set the new system in motion. - -In other States its friends had whipped up all possible speed. Not a -week had passed after the Federal Convention had laid the proposed -Constitution before Congress when a resolution was introduced in the -Legislature of Pennsylvania for the election, within five weeks,[1003] -of delegates to a State Convention to ratify the "New Plan." When its -opponents, failing in every other device to delay or defeat it, refused -to attend the sessions, thus breaking a quorum, a band of -Constitutionalists "broke into their lodgings, seized them, dragged them -though the streets to the State House and thrust them into the Assembly -room with clothes torn and faces white with rage." And there the -objecting members were forcibly kept until the vote was taken. Thus was -the quorum made and the majority of the Legislature enabled to "pass" -the ordinance for calling the Pennsylvania State Convention to ratify -the National Constitution.[1004] And this action was taken before the -Legislature had even received from Congress a copy of that document. - -The enemies in Pennsylvania of the proposed National Government were -very bitter. They said that the Legislature had been under the yoke of -Philadelphia--a charge which, indeed, appears to be true. Loud were the -protests of the minority against the feverish haste. When the members of -the Pennsylvania Convention, thus called, had been chosen and had -finished their work, the Anti-Constitutionalists asserted that no fair -election had really taken place because it "was held at so early a -period and want of information was so great" that the people did not -know that such an election was to be held; and they proved this to their -own satisfaction by showing that, although seventy thousand -Pennsylvanians were entitled to vote, only thirteen thousand of them -really had voted and that the forty-six members of the Pennsylvania -Convention who ratified the Constitution had been chosen by only -sixty-eight hundred voters. Thus, they pointed out, when the State -Convention was over, that the Federal Constitution had been ratified in -Pennsylvania by men who represented less than one tenth of the voting -population of the State.[1005] - -Indeed, a supporter of the Constitution admitted that only a small -fraction of the people did vote for members of the Pennsylvania State -Convention; but he excused this on the ground that Pennsylvanians seldom -voted in great numbers except in contested elections; and he pointed out -that in the election of the Convention which framed the State's -Constitution itself, only about six thousand had exercised their right -of suffrage and that only a little more than fifteen hundred votes had -been cast in the whole Commonwealth to elect Pennsylvania's first -Legislature.[1006] - -The enemies of the proposed plan for a National Government took the -ground that it was being rushed through by the "aristocrats"; and the -"Independent Gazetteer" published "The humble address of the _low born_ -of the United States of America, to their fellow slaves scattered -throughout the world," which sarcastically pledged that "we, the _low -born_, that is, all the people of the United States, except 600 or -thereabouts, _well born_," would "allow and admit the said 600 _well -born_ immediately to establish and confirm this most noble, most -excellent, and truly divine constitution."[1007] - -James Wilson, they said, had been all but mobbed by the patriots during -the Revolution; he never had been for the people, but always "strongly -tainted with the spirit of _high aristocracy_."[1008] Yet such a man, -they declared, was the ablest and best person the Constitutionalists -could secure to defend "that political monster, the proposed -Constitution"; "a monster" which had emerged from "the thick veil of -secrecy."[1009] - -When the Pennsylvania State Convention had assembled, the opponents of -the Constitution at once charged that the whole business was being -speeded by a "system of precipitancy."[1010] They rang the changes on -the secret gestation and birth of the Nation's proposed fundamental law, -which, said Mr. Whitehill, "originates in mystery and must terminate in -despotism," and, in the end, surely would annihilate the States.[1011] -Hardly a day passed that the minority did not protest against the -forcing tactics of the majority.[1012] While much ability was displayed -on both sides, yet the debate lacked dignity, courtesy, judgment, and -even information. So scholarly a man as Wilson said that "Virginia has -no bill of rights";[1013] and Chief Justice McKean, supported by Wilson, -actually declared that none but English-speaking peoples ever had known -trial by jury.[1014] - -"Lack of veracity," "indecent," "trifling," "contempt for arguments and -person," were a few of the more moderate, polite, and soothing epithets -that filled Pennsylvania's Convention hall throughout this so-called -debate. More than once the members almost came to blows.[1015] The -galleries, filled with city people, were hot for the Constitution and -heartened its defenders with cheers. "This is not the voice of the -people of Pennsylvania," shouted Smilie, denouncing the partisan -spectators. The enemies of the Constitution would not be "intimidated," -he dramatically exclaimed, "were the galleries filled with -bayonets."[1016] The sarcastic McKean observed in reply that Smilie -seemed "mighty angry, merely because somebody was pleased."[1017] - -Persons not members of the Convention managed to get on the floor and -laughed at the arguments of those who were against the Constitution. -Findley was outraged at this "want of sense of decency and order."[1018] -Justice McKean treated the minority with contempt and their arguments -with derision. "_If the sky falls, we shall catch larks; if the rivers -run dry, we shall catch eels_," was all, said this conciliatory -advocate of the Constitution, that its enemies' arguments amounted to; -they made nothing more than a sound "like _the working of small -beer_."[1019] - -The language, manners, and methods of the supporters of the Constitution -in the Pennsylvania Convention were resented outside the hall. "If -anything could induce me to oppose the New Constitution," wrote a -citizen signing himself "Federalist," "it would be the indecent, -supercilious carriage of its advocates towards its opponents."[1020] - -While the Pennsylvania State Convention was sitting, the Philadelphia -papers were full of attacks and counter-attacks by the partisans of -either side, some of them moderate and reasonable, but most of them -irritating, inflammatory, and absurd. A well-written petition of -citizens was sent to the Convention begging it to adjourn until April or -May, so that the people might have time to inform themselves on the -subject: "The people of Pennsylvania have not yet had sufficient time -and opportunity afforded them for this purpose. The great bulk of the -people, from the want of leisure from other avocations; their remoteness -from information, their scattered situation, and the consequent -difficulty of conferring with each other" did not understand the -Constitution, declared this memorial. - -"The unaccountable zeal and precipitation used to hurry the people into -premature decision" had excited and alarmed the masses, "and the -election of delegates was rushed into before the greater part of the -people ... knew what part to take in it." So ran the cleverly drawn -indictment of the methods of those who were striving for ratification in -Pennsylvania.[1021] In the State Convention, the foes of the -Constitution scathingly denounced to the very last the jamming-through -conduct of its friends; and just before the final vote, Smilie dared -them to adjourn that the sense of the people might be taken.[1022] - -Even such of the people as could be reached by the newspapers were not -permitted to be enlightened by the Convention "debates"; for reports of -them were suppressed.[1023] Only the speeches of James Wilson and Chief -Justice McKean, both ardent advocates of the Constitution, were allowed -to be published.[1024] - -But although outnumbered two to one, cuffed and buffeted without mercy -in debate, scoffed at and jeered at by the people of the Quaker City, -the minority was stiff-necked and defiant. Their heads were "bloody but -unbowed." Three days after the vote for ratification, forty-six "ayes" -to twenty-three "nays," had been taken, the minority issued an address -to their constituents.[1025] It relates the causes which led to the -Federal Convention, describes its members, sets forth its usurpation of -power, details the efforts to get popular support for the Constitution -even "whilst the gilded chains were forging in the secret conclave." - -The address recounts the violence by which the State Convention was -called, "not many hours" after the "New Plan" had "issued forth from the -womb of suspicious secrecy"; and reaffirms the people's ignorance of the -Constitution, the trifling vote, the indecorous, hasty, "insulting" -debate. It gives the amendments asked for by the minority, and finally -presents most if not all the arguments which before had been or since -have been advanced against the Constitution, and especially the National -principle which pervades it. - -The powers given Congress would produce "one consolidated government, -which, from the nature of things, will be an _iron handed despotism_"; -the State Governments would be annihilated; the general welfare clause -would justify anything which "_the will and pleasure_ of congress" -dictated; that National body, "with complete and unlimited power over -the _purse_ and the _sword_," could[1026] by taxation "command the whole -or any part of the property of the people"--imposts, land taxes, poll -taxes, excises, duties--every kind of tax on every possible species of -property and written instrument could be laid by the "monster" of -National power. By the Judiciary provided in the Constitution "the rich -and wealthy suitors would eagerly lay hold of the infinite mazes, -perplexities and delays ... and the poor man being plunged in the -bottomless pit of legal discussion" could not get justice.[1027] - -Two coördinate "sovereignties," State and National, "would be contrary -to the nature of things"; the Constitution without a bill of rights -"would of itself necessarily produce a despotism"; a standing army might -be used to collect the most burdensome taxes and with it "an ambitious -man ... may step up into the throne and seize upon absolute -power"[1028]--such are the broad outlines of the document with which the -undismayed enemies of the Constitution began their campaign against it -among the people of Pennsylvania after the Convention had ratified it. - -The wrath of the Pennsylvania foes of the Constitution fed and grew upon -its own extravagance. The friends of the "New Plan" tried to hold a -meeting in Carlisle to rejoice over its ratification; but the crowd -broke up their meeting, wrecked their cannon, and burned the -Constitution in the very bonfire which the Constitutionalists had -prepared to celebrate its victory. Blows were struck and violence -done.[1029] For almost a year, an Anti-Constitutionalist paper in -Philadelphia kept up the bombardment of the Constitution and its -advocates, its gunner being a writer signing himself "Centinel."[1030] -His ammunition was a mixture of argument, statement, charge, and abuse, -wrapped up in cartridge paper of blistering rhetoric. The Constitution -was, wrote "Centinel," a "spurious brat"; "the evil genius of darkness -presided at its birth" and "it came forth under the veil of -mystery."[1031] - -Should the small fraction of the people who had voted for the members of -the Pennsylvania State Convention bind the overwhelming majority who had -not voted, asked "Centinel." No, indeed! The people, wrote he with pen -of gall, had nothing but contempt for the "solemn mummery" that had been -acted in their name.[1032] As to the citizens of Philadelphia, everybody -understood, asserted "Centinel," that the "spirit of independency" was -dead within _their_ breasts; Philadelphia merchants, as was well known, -were mere vassals to a commercial "colossus" (Robert Morris) who held -the city in "thraldom."[1033] - -"Mankind in the darkest ages, have never been so insulted," cried -"Centinel," as the men of Pennsylvania had been by this "flagrant ... -audacious ... conspiracy [the Constitution] against the liberties of a -free people."[1034] The whole thing, he declared, was a dastardly plot. -The conspirators had disarmed the militia, kept out of the mails such -newspapers as had dared to voice the "people's rights";[1035] and "all -intercourse between the patriots of America is as far as possible cut -off; whilst on the other hand the conspirators have the most exact -information, a common concert is everywhere evident; they move in -unison."[1036] - -The Constitutionalists were not content with their vile work in -thrusting upon Pennsylvania "the empire of delusion," charged -"Centinel,"[1037] but their agents were off for Virginia to do the like -there.[1038] The whole world knew, said he, that the Constitutionalists -had rushed the Constitution through in Pennsylvania;[1039] and that the -"immaculate convention [that framed the Constitution] ... contained a -number of the principal public defaulters,"[1040] chief of whom was -Robert Morris, who, though a bankrupt in the beginning of the -Revolution, had, by "peculation and embezzlement of the public -property," accumulated "the immense wealth he has dazzled the world with -since."[1041] - -If only the address of Pennsylvania's heroic minority, "Centinel" -lamented, had reached Boston in time, it would "have enabled patriotism -to triumph" there; but, of course, the "_high born_" Constitutionalist -managers of post-offices kept it back.[1042] Was not the scandal so -foul, asked "Centinel," that, on the petition of Philadelphia printers, -Pennsylvania's Legislature appealed to Congress against the suppression -of the mails?[1043] Of course Philadelphia was for "this system of -tyranny"; but three fourths of the people in the eastern counties and -nineteen twentieths of those in the middle, northern, and western -counties were against it.[1044] - -The grape and canister which its enemies poured upon the Constitution -and its friends in Pennsylvania brought an answering fire. The attacks, -said the Constitutionalists, had been written by "hireling writers" and -"sowers of sedition"; their slanders showed "what falsehoods -disappointed ambition is capable of using to impose upon the public." -According to the Constitutionalists, their opponents were "incendiaries" -with "infamous designs."[1045] "If every lie was to be punished by -clipping, as in the case of other forgeries, not an ear would be left -amongst the whole party," wrote a Constitutionalist of the conduct of -the opposition.[1046] - -But the Constitutionalists were no match for their enemies in the -language of abuse, recklessness in making charges, or plausibility in -presenting their case. Mostly they vented their wrath in private -correspondence, which availed nothing. Yet the letters of business men -were effective in consolidating the commercial interests. Also they -illuminate the situation. - -"That restless firebrand, the Printer of your city [Oswald, editor of -the "Independent Gazetteer"], is running about as if driven by the -Devil," wrote a New York merchant to a Philadelphia business -correspondent, "seemingly determined to do all the mischief he can; -indeed, in my opinion he is an actual incendiary & ought to be the -object of legal restraint. He is in his own person a strong argument of -the necessity of speedily adopting the new System & putting it into -immediate motion."[1047] - -And "firebrands," indeed, the Anti-Constitutionalists prove themselves -in every possible way. - -Madison was alarmed. He writes to Jefferson that the "minority ... of -Pennsylvania has been extremely intemperate and continues to use very -bold and menacing language."[1048] Little did Madison then foresee that -the very men and forces he now was fighting were laying the foundation -for a political party which was to make him President. Far from his -thought, at this time, was the possibility of that antipodal change -which public sentiment and Jefferson's influence wrought in him two -years later. When the fight over the Constitution was being waged, there -was no more extreme Nationalist in the whole country than James Madison. - -So boiled the stormy Pennsylvania waters through which the Constitution -was hastened to port and such was the tempest that strained its moorings -after it was anchored in the harbor of ratification. - -In Massachusetts, "all the men of abilities, of property and of -influence,"[1049] were quite as strong for the Constitution as the same -class in Pennsylvania; but, impressed by the revolt against the tactics -of hurry and force which the latter had employed, the Constitutionalists -of the Bay State took an opposite course. Craft, not arrogance, was -their policy. They were "wise as serpents," but appeared to be "as -harmless as doves." Unlike the methods of the Pennsylvania -Constitutionalists, they were moderate, patient, conciliatory, and -skillful. They put up Hancock for President of the Convention, in order, -as they said, "that we might have advantage of [his] ... name--whether -capable of attending or not."[1050] - -The Massachusetts adversaries of the Constitution were without a leader. -Among them "there was not a single character capable of uniting their -wills or directing their measures."[1051] Their inferiority greatly -impressed Madison, who wrote to Pendleton that "there was scarce a man -of respectability" among them.[1052] They were not able even to state -their own case. - -"The friends of the Constitution, who in addition to their own -weight ... represent a very large proportion of the good sense and -property of this State, have the task not only of answering, but also of -stating and bringing forward the objections of their opponents," wrote -King to Madison.[1053] The opponents admitted this themselves. Of -course, said they, lawyers, judges, clergymen, merchants, and educated -men, all of whom were in favor of the Constitution, could make black -look white; but "if we had men of this description on our side" we could -run these foxes to earth.[1054] Mr. Randall hoped "that these great men -of eloquence and learning will not try to _make_ arguments to make this -Constitution go down, right or wrong.... It takes the best men in this -state to gloss this Constitution.... Suppose ... these great men would -speak half as much against it, we might complete our business and go -home in forty-eight hours."[1055] - -The election of members to the Massachusetts Convention had shown -widespread opposition to the proposed establishment of a National -Government. Although the Constitutionalists planned well and worked -hard, some towns did not want to send delegates at all; forty-six towns -finally refused to do so and were unrepresented in the Convention.[1056] -"Biddeford has backsliden & fallen from a state of Grace to a state of -nature, met yesterday & a dumb Devil seized a Majority & they voted not -to send, & when called on for a Reason they were dumb, _mirabile -dictu_!"[1057] King Lovejoy was chosen for Vassalborough; but when the -people learned that he would support the Constitution they "called -another Meeting, turned him out, & chose another in his room who was -desidedly against it."[1058] - -The division among the people in one county was: "The most reputable -characters ... on ... _the right_ side [for the Constitution] ... but -the middling & common sort ... on the opposite";[1059] and in another -county "the Majority of the Common people" were opposed,[1060] which -seems to have been generally true throughout the State. Of the sentiment -in Worcester, a certain E. Bangs wrote: "I could give you but a very -disagreeable account: The most of them entertain such a dread of -arbitrary power, that they are afraid even of limited authority.... Of -upwards of 50 members from this county not more than 7 or 8 delegates -are" for the Constitution, "& yet some of them are good men--Not all -[Shays's] insurgents I assure you."[1061] - -Judge Sewall reported from York that the delegates there had been -chosen "to Oppose the Business.... Sanford had one meeting and Voted not -to Send any--But M^r. S. come down full charged with Gass and Stirred up -a 2^{nd} Meeting and procured himself Elected, and I presume will go up -charged like a Baloon."[1062] Nathaniel Barrell of York, a successful -candidate for the Massachusetts Convention, "behaved so indecently -before the Choice, as extorted a severe Reprimand from Judge Sewall, and -when chosen modestly told his Constituents, he would sooner loose his -Arm than put his Assent to the new proposed Constitution, it is to be -feared many of his Brethern are of his mind."[1063] - -Barrell explained to Thatcher: "I see it [the Constitution] pregnant -with the fate of our libertys.... I see it entails wretchedness on my -posterity--Slavery on my children; ... twill not be so much for our -advantage to have our taxes imposed & levied at the pleasure of Congress -as [by] the method now pursued ... a Continental Collector at the head -of a standing army will not be so likely to do us justice in collecting -the taxes.... I think such a Government impracticable among men with -such high notions of liberty as we americans."[1064] - -The "Address of the Minority" of Pennsylvania's Convention had reached a -few men in Massachusetts, notwithstanding the alleged refusal of the -post-office to transmit it; and it did some execution. To Thomas B. Wait -it "was like the Thunder of Sinai--its lightenings were irresistible" -to him. He deplored the "darkness, duplicity and studied ambiguity ... -running thro' the whole Constitution," which, to his mind, made it -certain that "as it now stands but very few individuals do or ever will -understand it.... The vast Continent of America cannot long be subjected -to a Democracy if consolidated into one Government--you might as well -attempt to rule Hell by Prayer."[1065] - -Christopher Gore condensed into one sentence the motives of those who -favored the Constitution as the desire for "an honorable & efficient -Govt. equal to the support of our national dignity--& capable of -protecting the property of our citizens."[1066] - -The spirit of Shays's Rebellion inspired the opponents of the -Constitution in Massachusetts. "Many of the [Shays's] insurgents are in -the Convention," Lincoln informed Washington; "even some of Shays's -officers. A great proportion of these men are high in the opposition. We -could hardly expect any thing else; nor could we ... justly suppose that -those men, who were so lately intoxicated with large draughts of -liberty, and who were thirsting for more would ... submit to a -Constitution which would further take up the reins of Government, which, -in their opinion, were too straight before."[1067] - -Out of three hundred and fifty-five members of the Massachusetts -Convention, one hundred and sixty-eight held out against the -Constitution to the very last, uninfluenced by the careful, able, and -convincing arguments of its friends, unmoved by their persuasion, -unbought by their promises and deals.[1068] They believed "that some -injury is plotted against them--that the system is the production of the -rich and ambitious," and that the Constitution would result in "the -establishment of two orders in Society, one comprehending the opulent -and great, the other the poor and illiterate."[1069] At no time until -they won over Hancock, who presided over the Massachusetts Convention, -were the Constitutionalists sure that a majority was not against the new -plan. - -The struggle of these rude and unlearned Massachusetts men against the -cultured, disciplined, powerful, and ably led friends of the -Constitution in that State was pathetic. "Who, sir, is to pay the debts -of the yeomanry and others?" exclaimed William Widgery. "Sir, when oil -will quench fire, I will believe all this [the high-colored prophesies -of the Constitutionalists] and not till then.... I cannot see why we -need, for the sake of a little meat, swallow a great bone, which, if it -should happen to stick in our throats, can never be got out."[1070] - -Amos Singletary "wished they [the Constitutionalists] would not play -round the subject with their fine stories like a fox round a trap, but -come to it."[1071] "These lawyers," said he, "and men of learning and -moneyed men, that talk so finely, and gloss over matters so smoothly, -to make us poor illiterate people swallow down the pill, expect to get -into Congress themselves; they expect to be the managers of this -Constitution, and get all the power and all the money, into their own -hands, and then they will swallow up all us little folks like the great -_Leviathan_; ... yes, just as the whale swallowed up _Jonah_."[1072] -Replying to the Constitutionalist argument that the people's -representatives in Congress would be true to their constituents, Abraham -White said that he "would not trust a 'flock of Moseses.'"[1073] - -The opposition complained that the people knew little or nothing about -the Constitution--and this, indeed, was quite true. "It is strange," -said General Thompson, "that a system which its planners say is so -plain, _that he that runs may read it_, should want so much -explanation."[1074] "Necessity compelled them to hurry,"[1075] declared -Widgery of the friends of the Constitution. "Don't let us go too -fast.... Why all this racket?" asked the redoubtable Thompson.[1076] Dr. -John Taylor was sure that Senators "once chosen ... are chosen -forever."[1077] - -Time and again the idea cropped out of a National Government as a kind -of foreign rule. "I beg the indulgence of this honorable body," implored -Samuel Nason, "to permit me to make a short apostrophe to Liberty. O -Liberty! thou greatest good! thou fairest property! with thee I wish to -live--with thee I wish to die! Pardon me if I drop a tear on the peril -to which she is exposed: I cannot, sir, see this brightest of jewels -tarnished--a jewel worth ten thousand worlds; and shall we part with it -so soon? O no."[1078] And Mr. Nason was sure that the people would part -with this brightest of jewels if the Constitution was adopted. As to a -standing army, let the Constitutionalists recall Boston on March 5, -1770. "Had I a voice like Jove," cried Nason, "I would proclaim it -throughout the world; and had I an arm like Jove, I would hurl from the -globe those villains that would dare attempt to establish in our country -a standing army."[1079] - -These "poor, ignorant men," as they avowed themselves to be, were rich -in apostrophes. The reporter thus records one of General Thompson's -efforts: "Here the general broke out in the following pathetic -apostrophe: 'O my country, never give up your annual elections! Young -men, never give up your jewel.'"[1080] John Holmes showed that the -Constitution gave Congress power to "institute judicatories" like "that -diabolical institution, the _Inquisition_." "_Racks_," cried he, "and -_gibbets_, may be amongst the most mild instruments of their -[Congress's] discipline."[1081] Because there was no religious test, -Major Thomas Lusk "shuddered at the idea that Roman Catholics, Papists, -and Pagans might be introduced into office, and that Popery and the -Inquisition may be established in America";[1082] and Singletary pointed -out that under the Constitution a "Papist, or an Infidel, was as -eligible as ... a Christian."[1083] - -Thus the proceedings dragged along. The overwhelming arguments of the -advocates of the Constitution were unanswered and, apparently, not even -understood by its stubborn foes. One Constitutionalist, indeed, did -speak their language, a farmer named Jonathan Smith, whom the -Constitutionalist managers put forward for that purpose. "I am a plain -man," said Mr. Smith, "and get my living by the plough. I am not used to -speak in public, but I beg leave to say a few words to my brother -plough-joggers in this house"; and Mr. Smith proceeded to make one of -the most effective speeches of the Convention.[1084] But all to no -purpose. Indeed, the pleadings and arguments for the Constitution seemed -only to harden the feeling of those opposed to it. They were obsessed by -an immovable belief that a National Government would destroy their -liberties; "and," testifies King, "a distrust of men of property or -education has a more powerful effect upon the minds of our opponents -than any specific objections against the Constitution."[1085] - -Finally, in their desperation, the Constitutionalist managers won -Hancock,[1086] whose courting of the insurgents in Shays's Rebellion had -elected him Governor. He had more influence with the opposition than -any other man in New England. For the same reason, Governor Bowdoin's -friends, who included most of the men of weight and substance, had been -against Hancock. By promising the latter their support and by telling -him that he would be made President if Washington was not,[1087] the -Constitutionalist leaders induced Hancock to offer certain amendments -which the Massachusetts Convention should recommend to Congress along -with its ratification of the Constitution. Hancock offered these -proposals as his own, although they were drawn by the learned and -scholarly Parsons.[1088] Samuel Adams, hitherto silent, joined in this -plan. - -Thus the trick was turned and the Massachusetts Convention ratified the -Constitution a few days later by a slender majority of nineteen out of a -vote of three hundred and fifty-five.[1089] But not without bitter -protest. General Thompson remarked that "he could not say amen to them -[the amendments], but they might be voted for by some men--he did not -say Judases."[1090] The deal by which the Constitutionalists won Hancock -was suspected, it appears, for Dr. Charles Jarvis denied that "these -amendments have been artfully introduced to lead to a decision which -would not otherwise be had."[1091] Madison in New York, watching the -struggle with nervous solicitude, thought that the amendments influenced -very few members of the Massachusetts opposition because of "their -objections being levelled against the very essence of the proposed -Government."[1092] Certainly, those who changed their votes for -ratification had hard work to explain their conversion. - -Nathaniel Barrell, who had pledged his constituents that he would part -with his arm rather than vote for the "Slavery of my children," had -abandoned his vow of amputation and decided to risk the future bondage -of his offspring by voting for the Constitution. In trying to justify -his softened heroism, he said that he was "awed in the presence of this -august assembly"; he knew "how little he must appear in the eyes of -those giants of rhetoric, who have exhibited such a pompous display of -declamation"; but although he did not have the "eloquence of Cicero, or -the blaze of Demosthenian oratory," yet he would try to explain. He -summarized his objections, ending with his wish that "this Constitution -had not been, in some parts of the continent, hurried on, like the -driving of Jehu, very furiously." So he hoped the Convention would -adjourn, but if it would not--well, in that case, Mr. Barrell would -brave the wrath of his constituents and vote for ratification with -amendments offered by Hancock.[1093] - -Just as the bargain with Hancock secured the necessary votes for the -Constitution in the Massachusetts Convention, so did the personal -behavior of the Constitutionalists forestall any outbreak of protest -after ratification. "I am at Last overcome," wrote Widgery, "by a -majority of 19, including the president [Hancock] whose very Name is an -Honour to the State, for by his coming in and offering Som Amendments -which furnished many with Excuses to their Constituants, it was adopted -to the great Joy of all Boston."[1094] The triumphant Constitutionalists -kept up their mellowing tactics of conciliation after their victory and -with good results, as appears by Mr. Widgery's account. - -The "great bone" which had been thrust into his throat had not stuck -there as he had feared it would. The Constitutionalists furnished -materials to wash it down. "After Taking a parting Glass at the Expense -of the Trades men in Boston we Disolved";[1095] but not before the -mollified Widgery announced that the Constitution "had been carried by a -majority of wise and understanding men.... After expressing his thanks -for the civility which the inhabitants of this town [Boston] have shown -to the Convention, ... he concluded by saying that he should support -the ... Constitution" with all his might.[1096] - -"One thing I mus menchen," relates Widgery, "the Gallerys was very much -Crowded, yet on the Desition of so emportant a Question as the present -you might have heard a Copper fall on the Gallery floor, their was Sush -a profound Silance; on thirs Day we got throw all our Business and on -Fry Day, there was a federal Ship Riged and fix^d on a Slead, hald by 13 -Horses, and all Orders of Men Turn^d out and formed a procession in the -following ordor Viz first the Farmers with the plow and Harrow Sowing -grain, and Harrowing it in as they went Som in a Cart Brakeing and -Swingeing Flax ... Tradesmen of all sorts, ... the Bakers [with] their -Bread peal ... the Federal Ship ful Riged ... the Merchants ... a nother -Slead, Halled by 13 Horses on which was a Ship yard, and a Number of -smaul Ships &c. on that. in this order thay march^d to the House of Each -of their Delegates in the Town of Boston, and returned to Fanuels Aall -where the Merchants gave them 3 or 4 Hogsheads of Punch and as much wine -cake & cheese as they could make way with ... one thing more -Notwithstanding my opposition to the Constitution, and the anxiety of -Boston for its adoption I most Tel you I was never Treated with So much -politeness in my Life as I was afterwards by the Treadesmen of Boston -Merchants & every other Gentleman."[1097] - -Thus did the Massachusetts Constitutionalists take very human and -effective measures to prevent such revolt against the Constitution, -after its ratification, as the haughty and harsh conduct of their -Pennsylvania brothers had stirred up in the City and State of Brotherly -Love. "The minority are in good temper," King advises Madison; "they -have the magnanimity to declare that they will devote their lives and -property to support the Government."[1098] While there was a little -Anti-Constitutionalist activity among the people after the Convention -adjourned, it was not virulent. Gerry, indeed, gave one despairing -shriek over departing "liberty" which he was sure the Constitution would -drive from our shores; but that lament was intended for the ears of New -York. It is, however, notable as showing the state of mind of such -Anti-Constitutionalists as the Constitution's managers had not taken -pains to mollify. - -Gerry feared the "Gulph of despotism.... On these shores freedom has -planted her standard, diped in the purple tide that flowed from the -veins of her martyred heroes" which was now in danger from "the -deep-laid plots, the secret intrigues, ... the bold effrontery" of those -ambitious to be aristocrats, some of whom were "speculating for fortune, -by sporting with public money." Only "a few, a very few -[Constitutionalists] ... were ... defending their country" during the -Revolution, said Gerry. "Genius, Virtue, and Patriotism seems to nod -over the vices of the times ... while a supple multitude are paying a -blind and idolatrous homage to ... those ... who are endeavouring ... to -betray the people ... into an acceptance of a most complicated system of -government; marked on the one side with the _dark_, _secret_ and -_profound intrigues_ of the statesman, long practised in the purlieus of -despotism; and on the other, with the ideal projects of _young -ambition_, with its wings just expanded to soar to a summit, which -imagination has painted in such gawdy colours as to intoxicate the -_inexperienced votary_ and send _him_ rambling from State to State, to -collect materials to construct the ladder of preferment."[1099] - -Thus protested Gerry; but if the people, in spite of his warnings, -_would_ "give their voices for a voluntary dereliction of their -privileges"--then, concluded Gerry, "while the statesman is plodding for -power, and the courtier practicing the arts of dissimulation without -check--while the rapacious are growing rich by oppression, and fortune -throwing her gifts into the lap of fools, let the sublimer characters, -the philosophic lovers of freedom who have wept over her exit, retire to -the calm shades of contemplation, there they may look down with pity on -the inconsistency of human nature, the revolutions of states, the rise -of kingdoms, and the fall of empires."[1100] - -Such was the resistance offered to the Constitution in Massachusetts, -such the debate against it, the management that finally secured its -approval with recommendations by that Commonwealth,[1101] and the after -effects of the Constitutionalists' tactics. - -In New Hampshire a majority of the Convention was against the -Constitution. "Almost every man of property and abilities ... [was] for -it," wrote Langdon to Washington; but "a report was circulated ... that -the liberties of the people were in danger, and the great men ... were -forming a plan for themselves; together with a thousand other -absurdities, which frightened the people almost out of what little -senses they had."[1102] - -Very few of the citizens of New Hampshire knew anything about the -Constitution. "I was surprised to find ... that so little information -respecting the Constitution had been diffused among the people," wrote -Tobias Lear. "The valuable numbers of _Publius_ are not known.... The -debates of the Pennsylvania and Massachusetts Conventions have been read -by but few persons; and many other pieces, which contain useful -information have never been heard of."[1103] - -When the New Hampshire Convention assembled, "a great part of whom had -positive instructions to vote against it," the Constitutionalists, after -much argument and persuasion, secured an adjournment on February 22 -until June.[1104] Learning this in New York, nine days later, Madison -wrote Pendleton that the adjournment had been "found necessary to -prevent a rejection."[1105] But, "notwithstanding our late -Disappointments and Mortification," the New Hampshire Constitutionalists -felt that they would win in the end and "make the people happy in spight -of their teeth."[1106] - -When, therefore, Virginia's great Convention met on June 2, 1788, the -Nation's proposed fundamental law had not received deliberate -consideration in any quarter; nor had it encountered weighty debate from -those opposed to it. New York's Convention was not to assemble until two -weeks later and that State was known to be hostile. The well-arranged -plan was working to combine the strength of the leading enemies of the -Constitution in the various States so that a new Federal Convention -should be called.[1107] - -"Had the influence of character been removed, the intrinsic merits of -the instrument [Constitution] would not have secured its adoption. -Indeed, it is scarcely to be doubted, that in some of the adopting -States, a majority of the people were in the opposition," writes -Marshall many years afterwards in a careful review of the thorny path -the Constitution had had to travel.[1108] Its foes, says Marshall, were -"firmly persuaded that the cradle of the constitution would be the grave -of republican liberty."[1109] - -In Virginia's Convention, the array of ability, distinction, and -character on both sides was notable, brilliant, and impressive. The -strongest debaters in the land were there, the most powerful orators, -and some of the most scholarly statesmen. Seldom, in any land or age, -has so gifted and accomplished a group of men contended in argument and -discussion at one time and place. And yet reasoning and eloquence were -not the only or even the principal weapons used by these giant -adversaries. Skill in political management, craft in parliamentary -tactics, intimate talks with the members, the downright "playing of -politics," were employed by both sides. "Of all arguments that may be -used at the convention," wrote Washington to Madison, more than four -months before the Convention, "the most prevailing one ... will be that -nine states at least will have acceded to it."[1110] - - -FOOTNOTES: - -[982] Grigsby, i, 25. - -[983] Travelers from the District of Kentucky or from the back -settlements of Virginia always journeyed fully armed, in readiness to -defend themselves from attack by Indians or others in their journey -through the wilderness. - -[984] Grigsby, i, 27-28. - -[985] _Ib._, 25. - -[986] The Jockey Club was holding its annual races at Richmond when the -Constitutional Convention of 1788 convened. (Christian, 31.) - -[987] Grigsby, i. 31. - -[988] Humphrey Marshall, from the District of Kentucky, saw for the -first time one number of the _Federalist_, only after he had reached the -more thickly peopled districts of Virginia while on his way to the -Convention. (_ib._, footnote to 31.) - -[989] George Nicholas to Madison, April 5, 1788; _Writings_: Hunt, v, -footnote to p. 115. - -[990] "The most common and ostensible objection was that it [the -Constitution] would endanger state rights and personal liberty--that it -was too strong." (Humphrey Marshall, i, 285.) - -[991] Tyler, i, 142. Grigsby estimates that three fourths of the people -of Virginia were opposed to the Constitution. (Grigsby, i, footnote to -160.) - -[992] Lee to Madison, Dec. 1787; _Writings_: Hunt, v, footnote to p. 88. - -[993] Madison's father to Madison, Jan. 30, 1788; _Writings_: Hunt, v, -footnote to p. 105. - -[994] Madison to Jefferson, Feb. 19, 1788; _ib._, 103. - -[995] Henry to Lamb, June 9, 1788; Henry, ii, 342. - -[996] Minton Collins to Stephen Collins, March 16, 1788; Collins MSS., -Lib. Cong. - -[997] Even Hamilton admitted this. "The framers of it [the Constitution] -will have to encounter the disrepute of having brought about a -revolution in government, without substituting anything that was worthy -of the effort; they pulled down one Utopia, it will be said, to build up -another." (Hamilton to Washington, Sept., 1788; Hamilton's _Works_: -Lodge, ix, 444; and also in Jefferson, _Writings_: Ford, xi, footnote to -330.) Martin Van Buren describes the action of the Federal Convention -that framed the Constitution, in "having ... set aside the instructions -of Congress by making a new Constitution ... an heroic but lawless act." -(Van Buren, 49-50.) - -Professor Burgess does not overstate the case when he declares: "Had -Julius or Napoleon committed these acts [of the Federal Convention in -framing and submitting the Constitution], they would have been -pronounced _coups d'état_." (Burgess, i, 105.) - -Also see Beard: _Econ. I. C._, 217-18. - -[998] Ford: _P. on C._, 14. - -[999] _Ib._, 100-01. - -[1000] Ford: _P. on C._, 284-85. And see Jameson, 40-49. - -[1001] Washington to Lafayette, Sept. 18, 1788; _Writings_: Sparks, ix, -265. - -[1002] Connecticut, New Jersey, and Delaware had practically no ports -and, under the Confederation, were at the mercy of Massachusetts, New -York, and Pennsylvania in all matters of trade. The Constitution, of -course, remedied this serious defect. Also, these smaller States had -forced the compromise by which they, with their comparatively small -populations, were to have an equal voice in the Senate with New York, -Pennsylvania, and Virginia, with their comparatively great populations. -And therefore they would have practically equal weight in the law--and -treaty-making power of the Government. This was the most formidable of -the many rocks on which the Federal Convention all but broke up. - -[1003] One proposition was to call the State Convention "within _ten_ -days." (See "Address of the Minority of the Pennsylvania Convention," in -McMaster and Stone, 458.) - -[1004] _Ib._, 3-4; and see _ib._, 75. An excuse for these mob methods -was that the Legislature previously had resolved to adjourn _sine die_ -on that very day. This would put off action until the next session. The -Anti-Constitutionalists urged--with entire truthfulness--that even this -delay would give the people too little time to inform themselves upon -the "New Plan" of government, as it was called, which the Convention was -to pass upon in the people's name. "Not one in twenty know anything -about it." (Mr. Whitehall in debate in the Legislature; _ib._, 32.) - -[1005] McMaster and Stone, 459-60. This charge was wholly accurate. -Both sides exerted themselves to carry the "election." The -Anti-Constitutionalists declared that they stood for "the principles of -the Revolution"; yet, asserts Graydon, who was at Reading at the time, -they sought the support of the Tories; the country lawyers were opposed -to the "New Plan" and agreed not "to practice or accept any office -under the Constitution"; but the Constitutionalists promised -"prothonotaryships, attorney generalships, chief justiceships, and what -not," and the hostile attorneys "were tempted and did eat." Describing -the spirit of the times, Graydon testifies that "pelf was a better goal -than liberty and at no period in my recollection was the worship of -Mammon more widely spread, more sordid and disgusting." - -Everybody who wanted it had a military title, that of major being "the -very lowest that a dasher of any figure would accept." To "clap on a -uniform and a pair of epaulettes, and scamper about with some militia -general for a day or two" was enough to acquire the coveted rank. Thus, -those who had never been in the army, but "had played a safe and -calculating game" at home and "attended to their interests," were not -only "the men of mark and consideration," but majors, colonels, and -generals as well. (Graydon, 331-33.) - -Noting, at a later time, this passion for military titles Weld says: "In -every part of America a European is surprised at finding so many men -with military titles ... but no where ... is there such a superfluity of -these military personages as in the little town of Staunton; there is -hardly a decent person in it ... but what is a colonel, a major, or a -captain." (Weld, i, 236-37.) - -Such were the conditions in the larger towns when the members of the -Pennsylvania Convention were chosen. The small vote cast seems to -justify the charge that the country districts and inaccessible parts of -the State did not even know of the election. - -[1006] McMaster and Stone, 503-04. - -[1007] McMaster and Stone, 173-74. - -[1008] _Independent Gazetteer_: _ib._, 183-84. - -[1009] _Ib._, 184-85. - -[1010] Pennsylvania Debates, in McMaster and Stone, 231. Elliott prints -only a small part of these debates. - -[1011] _Ib._, 283-85. - -[1012] _Ib._, 219. - -[1013] McMaster and Stone, 253. - -[1014] Findley covered them with confusion in this statement by citing -authority. Wilson irritably quoted in retort the words of Maynard to a -student: "Young Man! I have forgotten more law than ever you learned." -(_Ib._, 352-64.) - -[1015] _Ib._, 361-63. - -[1016] _Ib._, 365. - -[1017] _Ib._ - -[1018] _Ib._, 419. - -[1019] McMaster and Stone, 365. - -[1020] _Ib._, 453. The conduct of the Pennsylvania supporters of the -Constitution aroused indignation in other States, and caused some who -had favored the new plan of government to change their views. "On -reception of the Report of the [Federal] Convention, I perused, and -admir'd it;--Or rather, like many who still _think_ they admire it, I -loved Geo. Washington--I venerated Benj. Franklin--and therefore -concluded that I must love and venerate all the works of their -hands;--.... The honest and uninformed _freemen_ of America entertain -the same opinion of those two gentlemen as do European _slaves_ of their -Princes,--'_that they can do no wrong_.'" - -But, continues Wait, "on the unprecedented Conduct of the Pennsylvania -Legislature [and Convention] I found myself Disposed to lend an ear to -the arguments of the opposition--not with an expectation of being -convinced that the new Constitution was defective; but because I thought -the minority had been ill used; and I felt a little curious to hear the -particulars," with the result that "I am dissatisfied with the proposed -Constitution." (Wait to Thatcher, Jan. 8, 1788; _Hist. Mag._ (2d -Series), vi, 262; and see _infra_.) - -Others did not, even then, entertain Mr. Wait's reverence for -Washington, when it came to accepting the Constitution because of his -support. When Hamilton asked General Lamb how he could oppose the -Constitution when it was certain that his "good friend Genl. Washington -would ... be the first President under it," Lamb "reply'd that ... after -him Genl. Slushington might be the next or second president." (Ledlie to -Lamb; MS., N.Y. Hist. Soc.) - -[1021] McMaster and Stone, 432-35. - -[1022] _Ib._, 424. - -[1023] _Ib._, 14-15. - -[1024] _Ib._ - -[1025] "Address of the Minority"; McMaster and Stone, 454-83. - -[1026] "Address of the Minority"; McMaster and Stone, 466. - -[1027] _Ib._, 469-70. - -[1028] _Ib._, 480. - -[1029] See various contemporary accounts of this riot reprinted in -McMaster and Stone, 486-94. - -[1030] The authorship of the "Letters of Centinel" remains unsettled. It -seems probable that they were the work of Eleazer Oswald, printer of the -_Independent Gazetteer_, and one George Bryan, both of Philadelphia. -(See _ib._, 6-7, and footnote.) - -[1031] "Letters of Centinel," no. 4, _ib._, 606. - -[1032] _Ib._, 620. - -[1033] _Ib._, 625. - -[1034] McMaster and Stone, 624. - -[1035] _Ib._, 630, 637, 639, 642, 653, 655. - -[1036] _Ib._, 629. - -[1037] _Ib._, 641. - -[1038] _Ib._, 631; and see _infra_, chap. XI. - -[1039] _Ib._, 639. - -[1040] _Ib._, 658. - -[1041] _Ib._, 661. - -[1042] _Ib._, 667. - -[1043] McMaster and Stone, 667. - -[1044] _Ib._, 668. - -[1045] "A Real Patriot," in _Independent Gazetteer_, reprinted in -McMaster and Stone, 524. - -[1046] "Gomes," in _ib._, 527. - -[1047] H. Chapman to Stephen Collins, June 20, 1788; MS., Lib. Cong. -Oswald, like Thomas Paine, was an Englishman. - -[1048] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 102. - -[1049] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 101. - -[1050] Gore to Thatcher, June 9, 1788; _Hist. Mag._ (2d Series), vi, -263. This was a very shrewd move; for Hancock had not yet been won over -to the Constitution; he was popular with the protesting delegates, and -perhaps could not have been defeated had they made him their candidate -for presiding officer; the preferment flattered Hancock's abnormal -vanity and insured the Constitutionalists against his active opposition; -and, most of all, this mark of their favor prepared the way for the -decisive use the Constitutionalist leaders finally were able to make of -him. Madison describes Hancock as being "weak, ambitious, a courtier of -popularity, given to low intrigue." (Madison to Jefferson, Oct. 17, -1788; _Writings_: Hunt, v, 270.) - -[1051] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 101. - -[1052] Madison to Pendleton, Feb. 21, 1788; _ib._, 108. - -[1053] King to Madison, Jan. 27, 1788; King, i, 316. - -[1054] _Ib._, 317. - -[1055] Elliott, ii, 40. - -[1056] Harding, 48. These towns were bitterly opposed to the -Constitution. Had they sent delegates, Massachusetts surely would have -rejected the Constitution; for even by the aid of the deal hereafter -described, there was a very small majority for the Constitution. And if -Massachusetts had refused to ratify it, Virginia would, beyond the -possibility of a doubt, have rejected it also. (See _infra_, chaps. X, -XI, and XII.) And such action by Massachusetts and Virginia would, with -absolute certainty, have doomed the fundamental law by which the Nation -to-day exists. Thus it is that the refusal of forty-six Massachusetts -towns to send representatives to the State Convention changed the -destiny of the Republic. - -[1057] Hill to Thatcher, Dec. 12, 1787; _Hist. Mag._ (2d Series), vi, -259. - -[1058] Lee to Thatcher, Jan. 23, 1788; _ib._, 266-67. - -[1059] _Ib._, 267. - -[1060] _Ib._ - -[1061] Bangs to Thatcher, Jan. 1, 1788; _Hist. Mag._ (2d Series), vi, -260. - -[1062] Sewall to Thatcher, Jan. 5, 1788; _Hist. Mag._ (2d Series), vi, -260-61. - -[1063] Savage to Thatcher, Jan. 11, 1788; _ib._, 264. - -[1064] Barrell to Thatcher, Jan. 15, 1788; _ib._, 265. - -[1065] Wait to Thatcher, Jan. 8, 1788; _Hist. Mag._ (2d Series), vi, -261. Wait was an unusually intelligent and forceful editor of a New -England newspaper, the _Cumberland Gazette_. (_Ib._, 258.) - -[1066] Gore to Thatcher, Dec. 30, 1787; _ib._, 260. - -[1067] Lincoln to Washington, Feb. 3, 1788; _Cor. Rev._: Sparks, iv, -206. - -[1068] See _infra_. - -[1069] King to Madison, Jan. 27, 1788; King, i, 317. - -[1070] Elliott, ii, 105-06. - -[1071] _Ib._, 101. - -[1072] Elliott, ii, 102. - -[1073] _Ib._, 28. - -[1074] _Ib._, 96. - -[1075] _Ib._, 94. - -[1076] _Ib._, 80. - -[1077] _Ib._, 48. - -[1078] Elliot, ii, 133. - -[1079] _Ib._, 136-37. - -[1080] _Ib._, 16. - -[1081] _Ib._, 111. - -[1082] _Ib._, 148. - -[1083] _Ib._, 44. - -[1084] Elliott, ii, 102-04. Mr. Thatcher made the best summary of the -unhappy state of the country under the Confederation. (_Ib._, 141-48.) - -[1085] King to Madison, Jan. 20, 1788; King, i, 314. - -[1086] Rives, ii, 524-25. "To manage the cause against them (the jealous -opponents of the Constitution) are the present and late governor, three -judges of the supreme court, fifteen members of the Senate, twenty-four -among the most respectable of the clergy, ten or twelve of the first -characters at the bar, judges of probate, high sheriffs of counties, and -many other respectable people, merchants, &c., Generals Heath, Lincoln, -Brooks, and others of the late army." (Nathaniel Gorham to Madison, -quoted in _ib._) - -[1087] "Hancock has committed himself in our favor.... You will be -astonished, when you see the list of names that such an union of men has -taken place on this question. Hancock will, hereafter, receive the -universal support of Bowdoin's friends; _and we told him, that, if -Virginia does not unite, which is problematical, he is considered as the -only fair candidate for President_." (King to Knox, Feb. 1, 1788; King, -i, 319. The italics are those of King.) - -[1088] _Ib._, ii, 525. - -[1089] Elliott, ii, 178-81. - -[1090] _Ib._, 140. - -[1091] Elliott, ii, 153. - -[1092] Madison to Randolph, April 10, 1788; _Writings_: Hunt, v, 117. - -[1093] Elliott, ii, 159-61. - -[1094] Widgery to Thatcher, Feb. 8, 1788; _Hist. Mag._ (2d Series), vi, -270. - -[1095] _Ib._ - -[1096] Elliott, ii, 218. - -[1097] Widgery to Thatcher, Feb. 8, 1788; _Hist. Mag._ (2d Series), vi, -270-71. - -[1098] King to Madison, Feb. 6, 1788; King, i, 320. - -[1099] Gerry, in Ford: _P. on C._, 1-23. - -[1100] _Ib._, 23. When a bundle of copies of Gerry's pamphlet was -received by the New York Anti-Constitutionalists in Albany County, they -decided that it was "in a style too sublime and florid for the common -people in this part of the country." (_Ib._, 1.) - -[1101] During the debates the _Boston Gazette_ published the following -charge that bribery was being employed to get votes for the -Constitution:-- - -/# - _BRIBERY AND CORRUPTION!!!_ - - "The most diabolical plan is on foot to corrupt the members of - the Convention, who oppose the adoption of the new Constitution. - Large sums of money have been brought from a neighboring state - for that purpose, contributed by the wealthy. If so, is it not - probable there may be collections for the same accursed purpose - nearer home? CENTINEL." (Elliott, ii, 51.) -#/ - -The Convention appointed a committee to investigate (_ib._); it found -that the charge was based on extremely vague rumor. (Harding, 103.) -There the matter appears to have been dropped. - -More than eighty years afterward, Henry B. Dawson, the editor of the -_Historical Magazine_, a scholar of standing, asserted, personally, in -his publication: "It is very well known--indeed, the son and biographer -of one of the great leaders of the Constitutionalists in New York has -frankly admitted to us--_that enough members of the Massachusetts -Convention were bought with money_ from New York _to secure the -ratification of the new system by Massachusetts_." (_Hist. Mag._ (2d -Series), vi, 268, footnote, referring to Savage's letter to Thatcher -telling of the charge in the _Boston Gazette_.) - -Professor Harding discredits the whole story. (Harding, 101-05.) It is -referred to only as showing the excited and suspicious temper of the -times. - -[1102] Langdon to Washington, Feb. 28, 1788; _Cor. Rev._: Sparks, iv, -212. "At least three fourths of the property, and a large proportion of -the abilities in the State are friendly to the proposed system. The -opposition here, as has generally been the case, was composed of men who -were involved in debt." (Lear to Washington, June 22, 1788; _ib._, -224-25.) - -[1103] Lear to Washington, June 2, 1788; _Cor. Rev._: Sparks, iv, 220. - -[1104] Langdon to King, Feb. 23, 1788; King, i, 321-22. - -[1105] Madison to Pendleton, March 3, 1788 (_Writings_: Hunt, v, 110), -and to Washington, March 3, 1788 (_ib._, 111); and to Randolph; March 3, -1788 (_ib._, 113). - -[1106] Langdon to King, May 6, 1788; King, i, 328. - -[1107] Washington to Lafayette, Feb. 7, 1788; _Writings_: Ford, xi, 220. - -[1108] Marshall, ii, 127. - -[1109] _Ib._ - -[1110] Washington to Madison, Jan. 10, 1788; _Writings_: Ford, xi, 208. - - - - -CHAPTER X - -IN THE GREAT CONVENTION - - There is no alternative between the adoption of it [the - Constitution] and anarchy. (Washington.) - - I look on that paper as the most fatal plan that could possibly - be conceived to enslave a free people. (Henry.) - - -More, much more, went forward in the Virginia struggle than appeared -upon the surface. Noble as was the epochal debate in Virginia's -Constitutional Convention, it was not so influential on votes of the -members as were other methods[1111] employed by both sides. Very -practical politicians, indeed, were these contending moulders of -destiny. - -Having in mind the Pennsylvania storm; with the picture before them of -the delicate and skillful piloting by which alone the Constitution had -escaped the rocks in the tempestuous Massachusetts seas; with the -hurricane gathering in New York and its low thunders heard even from -States that had ratified--the Virginia Constitutionalists took no -chances, neglected no precaution. Throughout the country the -Constitutionalists were now acting with disciplined dispatch. - -Intelligence of the New Hampshire Convention, of their success in which -the Constitutionalists finally had made sure, was arranged to be carried -by swift riders and relays of horses across country to Hamilton in New -York; and "any expense which you may incur will be cheerfully repaid," -King assured Langdon.[1112] As to Virginia, Hamilton wrote Madison to -send news of "_any decisive_ question ... if favorable ... by an -express ... with pointed orders to make all possible diligence, by -changing horses etc."; assuring Madison, as King did Langdon, that -"all expense shall be thankfully and liberally paid."[1113] - -The Constitutionalists, great and small, in other States were watching -Virginia's Convention through the glasses of an infinite apprehension. -"I fear that overwhelming torrent, Patrick Henry," General Knox confided -to King.[1114] Even before Massachusetts had ratified, one Jeremiah Hill -thought that "the fate of this Constitution and the political Salvation -of the united States depend cheifly on the part that Virginia and this -State [Massachusetts] take in the Matter."[1115] Hamilton's lieutenant, -King, while in Boston helping the Constitutionalists there, wrote to -Madison: "You can with difficulty conceive the real anxiety experienced -in Massachusetts concerning your decision."[1116] "Our chance of success -depends on you," was Hamilton's own despairing appeal to the then leader -of the Southern Constitutionalists. "If you do well there is a gleam of -hope; but certainly I think not otherwise."[1117] The worried New York -Constitutionalist commander was sure that Virginia would settle the fate -of the proposed National Government. "God grant that Virginia may -accede. The example will have a vast influence."[1118] - -Virginia's importance justified the anxiety concerning her action. Not -only was the Old Dominion preëminent in the part she had taken in the -Revolution, and in the distinction of her sons like Henry, Jefferson, -and Washington, whose names were better known in other States than those -of many of their own most prominent men; but she also was the most -important State in the Confederation in population and, at that time, in -resources. "Her population," says Grigsby, "was over three fourths of -all that of New England;... not far from double that of Pennsylvania;... -or from three times that of New York ... over three fourths of all the -population of the Southern States;... and more than a fifth of the -population of the whole Union."[1119] - -The Virginia Constitutionalists had chosen their candidates for the -State Convention with painstaking care. Personal popularity, family -influence, public reputation, business and financial power, and -everything which might contribute to their strength with the people, had -been delicately weighed. The people simply would not vote against such -men as Pendleton, Wythe, and Carrington;[1120] and these and others -like them accordingly were selected by the Constitutionalists as -candidates in places where the people, otherwise, would have chosen -antagonists to the Constitution. - -More than one fourth of the Virginia Convention of one hundred and -seventy members had been soldiers in the Revolutionary War; and nearly -all of them followed Washington in his desire for a strong National -Government. Practically all of Virginia's officers were members of the -Cincinnati; and these were a compact band of stern supporters of the -"New Plan."[1121] Some of the members had been Tories, and these were -stingingly lashed in debate by Mason; but they were strong in social -position, wealth, and family connections, and all of them were for the -Constitution.[1122] - -No practical detail of election day had been overlooked by the -Constitutionalists. Colonel William Moore wrote to Madison, before the -election came off: "You know the disadvantage of being absent at -elections.... I must therefore entreat and conjure you--nay, command -you, if it were in my power--to be here."[1123] The Constitutionalists -slipped in members wherever possible and by any device. - -Particularly in Henrico County, where Richmond was situated, had -conditions been sadly confused. Edmund Randolph, then Governor of the -State, who next to Washington was Virginia's most conspicuous delegate -to the Federal Convention, had refused to sign the Constitution and was, -therefore, popularly supposed to be against it. October 17, 1787, he -wrote a letter to the Speaker of the House of Delegates explaining his -reasons for dissent. He approved the main features of the proposed plan -for a National Government but declared that it had fatal defects, should -be amended before ratification, a new Federal Convention called to pass -upon the amendments of the various States, and, thereafter, the -Constitution as amended again submitted for ratification to State -Conventions.[1124] Randolph, however, did not send this communication to -the Speaker "lest in the diversity of opinion I should excite a contest -unfavorable to that harmony with which I trust that great subject will -be discussed."[1125] But it was privately printed in Richmond and -Randolph sent a copy to Washington. On January 3, 1788, the letter was -published in the _Virginia Gazette_ together with other correspondence. -In an additional paragraph, which does not appear in Randolph's letter -as reproduced in Elliott, he said that he would "regulate himself by the -spirit of America" and that he would do his best to amend the -Constitution prior to ratification, but if he could not succeed he would -accept the "New Plan" as it stood.[1126] But he had declared to Richard -Henry Lee that "either a monarchy or aristocracy will be generated" by -it.[1127] - -Thus Randolph to all appearances occupied middle ground. But, publicly, -he was in favor of making strenuous efforts to amend the Constitution as -a condition of ratification, and of calling a second Federal Convention; -and these were the means by which the Anti-Constitutionalists designed -to accomplish the defeat of the "New Plan." The opponents of the -proposed National Government worked hard with Randolph to strengthen his -resolution and he gave them little cause to doubt their success.[1128] - -But the Constitutionalists were also busy with the Governor and with -greater effect. Washington wrote an adroit and persuasive letter -designed to win him entirely over to a whole-hearted and unqualified -advocacy of the Constitution. The question was, said Washington, the -acceptance of the Constitution or "a dissolution of the Union."[1129] -Madison, in a subtle mingling of flattery, argument, and insinuation, -skillfully besought his "dear friend" Randolph to come out for the -Constitution fully and without reserve. If only Randolph had stood for -the Constitution, wrote Madison, "it would have given it a decided and -unalterable preponderancy," and Henry would have been "baffled." - -The New England opposition, Madison assured Randolph, was from -"that part of the people who have a repugnance in general to good -government ... a part of whom are known to aim at confusion and are -suspected of wishing a reversal of the Revolution.... Nothing can be -further from your [Randolph's] views than the principles of the -different sets of men who have carried on their opposition under the -respectability of your name."[1130] - -Randolph finally abandoned all opposition and resolved to support the -Constitution even to the point of resisting the very plan he had himself -proposed and insisted upon; but nobody, with the possible exception of -Washington, was informed of this Constitutionalist master-stroke until -the Convention met;[1131] and, if Washington knew, he kept the secret. -Thus, although the Constitutionalists were not yet sure of Randolph, -they put up no candidate against him in Henrico County, where the people -were very much opposed to the Constitution. To have done so would have -been useless in any event; for Randolph could have been elected almost -unanimously if his hostility to the proposed Government had been more -vigorous, so decided were the people's dislike and distrust of it, and -so great, as yet, the Governor's popularity. He wrote Madison a day or -two before the election that nothing but his personal popularity "could -send me; my politicks not being sufficiently strenuous against the -Constitution."[1132] The people chose their beloved young Governor, -never imagining that he would appear as the leading champion of the -Constitution on the Convention floor and actually oppose amending it -before ratification.[1133] - -But the people were not in the dark when they voted for the only -candidate the Constitutionalists openly brought out in Henrico County. -John Marshall was for the proposed National Government, outright and -aboveboard. He was vastly concerned. We find him figuring out the result -of the election in northern Virginia and concluding "that the question -will be very nice."[1134] Marshall had been made the Constitutionalist -candidate solely because of his personal popularity. As it was, even the -people's confidence in him barely had saved Marshall. - -"Marshall is in danger," wrote Randolph; "but F. [Dr. Foushee, the -Anti-Constitutionalist candidate] is not popular enough on other scores -to be elected, altho' he is perfectly a Henryite."[1135] Marshall -admitted that the people who elected Randolph and himself were against -the Constitution; and declared that he owed his own election to his -individual strength with the people.[1136] Thus two strong champions of -the Constitution had been secured from an Anti-Constitutionalist -constituency; and these were only examples of other cases. - -The Anti-Constitutionalists, too, straining every nerve to elect their -men, resorted to all possible devices to arouse the suspicions, -distrust, and fears of the people. "The opposition to it [the -Constitution] ... is addressed more to the passions than to the reason," -declared Washington.[1137] - -Henry was feverishly active. He wrote flaming letters to Kentucky that -the Mississippi would be lost if the new plan of government were -adopted.[1138] He told the people that a religious establishment would -be set up.[1139] The Reverend John Blair Smith, President of Hampden -Sidney College, declared that Henry "has descended to lower artifices -and management ... than I thought him capable of."[1140] Writing to -Hamilton of the activities of the opposition, Washington asserted that -"their assiduity stands unrivalled";[1141] and he informed Trumbull -that "the opponents of the Constitution are indefatigable."[1142] - -"Every art that could inflame the passions or touch the interests of men -have been essayed;--the ignorant have been told that should the proposed -government obtain, their lands would be taken from them and their -property disposed of;--and all ranks are informed that the prohibition -of the Navigation of the Mississippi (their favorite object) will be a -certain consequence of the adoption of the Constitution."[1143] - -Plausible and restrained Richard Henry Lee warned the people that "by -means of taxes, the government may command the whole or any part of the -subjects' property";[1144] and that the Constitution "promised a large -field of employment to military gentlemen, and gentlemen of the law; and -in case the government shall be executed without convulsions, it will -afford security to creditors, to the clergy, salary-men and others -depending on money payments."[1145] - -Nor did the efforts of the Virginia opponents of a National -establishment stop there. They spread the poison of personal slander -also. "They have attempted to vilify & debase the characters who formed" -the Constitution, complained Washington.[1146] These cunning expedients -on one side and desperate artifices on the other were continued during -the sitting of the Virginia Convention by all the craft and guile of -practical politics. - -After the election, Madison reported to Jefferson in Paris that the -Northern Neck and the Valley had elected members friendly to the -Constitution, the counties south of the James unfriendly members, the -"intermediate district" a mixed membership, with Kentucky divided. In -this report, Madison counts Marshall fifth in importance of all -Constitutionalists elected, and puts only Pendleton, Wythe, Blair, and -Innes ahead of him.[1147] - -When the Convention was called to order, it made up a striking and -remarkable body. Judges and soldiers, lawyers and doctors, preachers, -planters, merchants, and Indian fighters, were there. Scarcely a field -fought over during the long, red years of the Revolution but had its -representative on that historic floor. Statesmen and jurists of three -generations were members.[1148] - -From the first the Constitutionalists displayed better tactics and -discipline than their opponents, just as they had shown greater skill -and astuteness in selecting candidates for election. They arranged -everything beforehand and carried their plans out with precision. For -the important position of President of the Convention, they agreed on -the venerable Chancellor, Edmund Pendleton, who was able, judicial, and -universally respected. He was nominated by his associate, Judge Paul -Carrington, and unanimously elected.[1149] - -In the same way, Wythe, who was learned, trusted, and beloved, and who -had been the teacher of many members of the Convention, was made -Chairman of the Committee of the Whole. The Anti-Constitutionalists did -not dare to oppose either Pendleton or Wythe for these strategic places. -They had made the mistake of not agreeing among themselves on strong and -influential candidates for these offices and of nominating them before -the Constitutionalists acted. For the first time in Virginia's history, -a shorthand reporter, David Robertson, appeared to take down a -stenographic report of the debates; and this innovation was bitterly -resented and resisted by the opposition[1150] as a Constitutionalist -maneuver.[1151] Marshall was appointed a member of the committee[1152] -which examined the returns of the elections of members and also heard -several contested election cases.[1153] - -[Illustration: GEORGE WYTHE] - -At the beginning the Anti-Constitutionalists did not decide upon a plan -of action--did not carefully weigh their course of procedure. No sooner -had rules been adopted, and the Constitution and official documents -relating to it laid before the Convention, than their second tactical -mistake was made; and made by one of their very ablest and most -accomplished leaders. When George Mason arose, everybody knew that the -foes of the Constitution were about to develop the first move in their -order of battle. Spectators and members were breathless with suspense. -Mason was the author of Virginia's Constitution and Bill of Rights and -one of the most honorable, able, and esteemed members of the -Legislature. - -He had been a delegate to the Federal Convention and, with Randolph, had -refused to sign the Constitution. Sixty-two years old, his snow-white -hair contrasting with his blazing dark eyes, his commanding stature clad -in black silk, his full, clear voice deliberate and controlled, George -Mason was an impressive figure as he stood forth to strike the first -blow at the new ordinance of Nationality.[1154] On so important a -subject, he did not think any rules should prevent "the fullest and -clearest investigation." God's curse would be small compared with "what -will justly fall upon us, if from any sinister views we obstruct the -fullest inquiry." The Constitution, declared Mason, should be debated, -"clause by clause," before any question was put.[1155] - -The Constitutionalists, keen-eyed for any strategic blunder of their -adversaries, took instant advantage of Mason's bad generalship. Madison -suavely agreed with Mason,[1156] and it was unanimously resolved that -the Constitution should be "discussed clause by clause through all its -parts,"[1157] before any question should be put as to the instrument -itself or any part of it. Thus the opposition presented to the -Constitutionalists the very method the latter wished for, and had -themselves planned to secure, on their own initiative.[1158] The -strength of the foes of the proposed National Government was in -attacking it as a whole; their weakness, in discussing its specific -provisions. The danger of the Constitutionalists lay in a general debate -on the large theory and results of the Constitution; their safety, in -presenting in detail the merits of its separate parts. - -While the fight over the Constitution was partly an economic class -struggle, it was in another and a larger phase a battle between those -who thought nationally and those who thought provincially. In hostile -array were two central ideas: one, of a strong National Government -acting directly on men; the other, of a weak confederated league merely -suggesting action to States. It was not only an economic contest, but -also, and even more, a conflict by those to whom "liberty" meant -unrestrained freedom of action and speech, against those to whom such -"liberty" meant tumult and social chaos. - -The mouths of the former were filled with those dread and sounding words -"despotism" and "arbitrary power"; the latter loudly denounced "enemies -of order" and "foes of government." The one wanted no bits in the mouth -of democracy, or, at most, soft ones with loose reins and lax hand; the -other wished a stout curb, stiff rein, and strong arm. The whole -controversy, on its popular side, resounded with misty yet stirring -language about "liberty," "aristocracy," "tyranny," "anarchy," -"licentiousness"; and yet "debtor," "creditor," "property and taxes," -"payment and repudiation," were heard among the more picturesque and -thrilling terms. In this fundamental struggle of antagonistic theories, -the practical advantage for the hour was overwhelmingly with those who -resisted the Constitution. - -They had on their side the fears of the people, who, as has appeared, -looked on all government with suspicion, on any vital government with -hostility, and on a great central Government as some distant and -monstrous thing, too far away to be within their reach, too powerful to -be resisted, too high and exalted for the good of the common man, too -dangerous to be tried. It was, to the masses, something new, vague, and -awful; something to oppress the poor, the weak, the debtor, the settler; -something to strengthen and enrich the already strong and opulent, the -merchant, the creditor, the financial interests. - -True, the people had suffered by the loose arrangement under which they -now lived; but, after all, had not they and their "liberties" survived? -And surely they would suffer even more, they felt, under this stronger -power; but would they and their "liberties" survive its "oppression"? -They thought not. And did not many of the ablest, purest, and most -trusted public characters in the Old Dominion think the same? Here was -ammunition and to spare for Patrick Henry and George Mason, Tyler and -Grayson, Bland and Harrison--ammunition and to spare, with their guns -planted on the heights, if they could center their fire on the -Constitution as a single proposition. - -But they had been sleeping and now awoke to find their position -surrendered, and themselves compelled, if Mason's resolutions were -strictly followed, to make the assault in piecemeal on detached parts of -the "New Plan," many of which, taken by themselves, could not be -successfully combated. Although they tried to recover their lost ground -and did regain much of it, yet the Anti-Constitutionalists were hampered -throughout the debate by this initial error in parliamentary -strategy.[1159] - -And now the Constitutionalists were eager to push the fighting. The -soldierly Lee was all for haste. The Anti-Constitutionalists held back. -Mason protested "against hurrying them precipitately." Harrison said -"that many of the members had not yet arrived."[1160] On the third day, -the Convention went into committee of the whole, with the astute and -venerable Wythe in the chair. Hardly had this brisk, erect little -figure--clad in single-breasted coat and vest, standing collar and white -cravat, bald, except on the back of the head, from which unqueued and -unribboned gray hair fell and curled up from the neck[1161]--taken the -gavel before Patrick Henry was on his feet. - -Henry moved for the reading of the acts by authority of which the -Federal Convention at Philadelphia had met,[1162] for they would show -the work of that Convention to be illegal and the Constitution the -revolutionary creature of usurped power. If Henry could fix on the -advocates of stronger law and sterner order the brand of lawlessness and -disorder in framing the very plan they now were championing, much of the -mistake of yesterday might be retrieved. - -But it was too late. Helped from his seat and leaning on his crutches, -Pendleton was recognized by Wythe before Henry could get the eye of the -chair to speak upon his motion; and the veteran jurist crushed Henry's -purpose before the great orator could make it plain. "We are not to -consider," said Pendleton, "whether the Federal Convention exceeded -their powers." That question "ought not to influence our deliberations." -Even if the framers of the Constitution had acted without authority, -Virginia's Legislature afterwards had referred it to the people who had -elected the present Convention to pass upon it.[1163] Pendleton's brief -speech was decisive;[1164] Henry withdrew his motion; the preamble and -the first two sections of the first article of the Constitution were -laid before the committee and the destiny-determining debate began. - -The Constitutionalists, who throughout the contest never made a mistake -in the men they selected to debate or the time when they should speak, -had chosen skillfully the parliamentary artillerist to fire their -opening gun. They did not wait for the enemy's attack, but discharged -the first shot themselves. Quickly there arose a broad, squat, ungainly -man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with -a nose like the beak of an eagle, and a voice clear and -emotionless.[1165] George Nicholas had been a brave, brilliant soldier -and was one of the ablest and best-equipped lawyers in the State. He was -utterly fearless, whether in battle on the field or in debate on the -floor. His family and connections were powerful. In argument and -reasoning he was the equal if not the superior of Madison himself; and -his grim personality made the meek one of Madison seem tender in -comparison. Nothing could disconcert him, nothing daunt his cold -courage. He probably was the only man in the Convention whom Henry -feared.[1166] - -Nicholas was glad, he said, that the Convention was to act with the -"fullest deliberation." First he thrust at the method of the opposition -to influence members by efforts outside the Convention itself; and went -on with a clear, logical, and informed exposition of the sections then -under consideration. He ended by saying "that he was willing to trust -his own happiness, and that of his posterity, to the operation of that -system."[1167] - -The Constitution's enemies, thus far out-pointed by its perfectly -trained and harmonious supporters, could delay no longer. Up rose the -idol and champion of the people. Although only fifty-two years old, he -had changed greatly in appearance since the days of his earlier -triumphs. The erect form was now stooped; spectacles now covered the -flashing eyes and the reddish-brown hair was replaced by a wig, which, -in the excitement of speech, he frequently pushed this way and that. But -the wizard brain still held its cunning, the magic tongue which, -twenty-three years ago had trumpeted Independence, still wrought its -spell.[1168] Patrick Henry began his last great fight. - -What, asked Henry, were the reasons for this change of government? A -year ago the public mind was "at perfect repose"; now it was "uneasy and -disquieted." "A wrong step now ... and our republic may be lost." It was -a great consolidated Government that the Constitutionalists proposed, -solemnly asserted Henry. What right, he asked, had the framers of the -Constitution to say, "_We, the people_, instead of _We, the states_"? He -demanded the cause of that fundamental change. "Even from that -illustrious man [Washington] who saved us by his valor, I would have a -reason for his conduct." The Constitution-makers had no authority except -to amend the old system under which the people were getting along very -well. Why had they done what they had no power to do?[1169] - -Thus Henry put the Constitutionalists on the defensive. But they were -ready. Instantly, Randolph was on his feet. He was thirty-seven years of -age, fashioned on noble physical lines, with handsome face and flowing -hair. His was one of Virginia's most distinguished families, his -connections were influential, and he himself was the petted darling of -the people. His luxuriant mind had been highly trained, his rich and -sonorous voice gave an added charm to his words.[1170] He was the -ostensible author[1171] of the plan on the broad lines of which the -Constitution finally had been built. His refusal to sign it because of -changes which he thought necessary, and his conversion to the extreme -Constitutionalist position, which he now, for the first time, was fully -to disclose, made him the strongest single asset the Constitutionalists -had acquired. Randolph's open, bold, and, to the public, sudden -championship of the Constitution was the explosion in the opposition's -camp of a bomb which they had hoped and believed their own ammunition. - -Never before, said Randolph, had such a vast event come to a head -without war or force. It might well be feared that the best wisdom would -be unequal to the emergency and that passion might prevail over reason. -He warned the opposition that the chair "well knows what is order, how -to command obedience, and that political opinions may be as honest on -one side as on the other." Randolph then tried to explain his change. "I -had not even the glimpse of the genius of America," said he of his -refusal to sign the report of the Federal Convention. But it was now so -late that to insist on amendments before ratification would mean -"inevitable ruin to the Union";[1172] and he would strike off his arm -rather than permit that. - -Randolph then reviewed the state of the country under the Confederation: -Congress powerless, public credit ruined, treaties violated, prices -falling, trade paralyzed, "and justice trampled under foot." The world -looks upon Americans "as little wanton bees, who had played for liberty, -but had no sufficient solidity or wisdom" to keep it. True, the Federal -Convention had exceeded its authority, but there was nothing else to be -done. And why not use the expression "We, the people"? Was the new -Government not for them? The Union is now at stake, and, exclaimed he, -"I am a friend to the Union."[1173] - -The secret was out, at last; the Constitutionalists' _coup_ was -revealed. His speech placed Randolph openly and unreservedly on their -side. "The Governor has ... thrown himself fully into the federal -scale," gleefully reported the anxious Madison to the supreme -Nationalist chieftain at Mount Vernon.[1174] "The G[overno]r exhibited -a curious spectacle to view. Having refused to sign the paper [the -Constitution] everybody supposed him against it," was Jefferson's -comment on Randolph's change of front.[1175] Washington, perfectly -informed, wrote Jay in New York that "Mr. Randolph's declaration -will have considerable effect with those who had hitherto been -wavering."[1176] Theodoric Bland wrote bitterly to Arthur Lee -that, "Our chief magistrate has at length taken his party and appears -to be reprobated by the honest of both sides.... He has openly -declared for posterior amendments, or in other words, unconditional -submission."[1177] - -All of Randolph's influence, popularity, and prestige of family were to -be counted for the Constitution without previous amendment; and this was -a far weightier force, in the practical business of getting votes for -ratification, than oratory or argument.[1178] So "the sanguine friends -of the Constitution counted upon a majority of twenty ... which number -they imagine will be greatly increased."[1179] - -Randolph's sensational about-face saved the Constitution. Nothing that -its advocates did during these seething three weeks of able discussion -and skillful planning accomplished half so much to secure ratification. -Washington's tremendous influence, aggressive as it was tactful, which, -as Monroe truly said, "carried" the new National plan, was not so -practically effective as his work in winning Randolph. For, aside from -his uncloaked support, the Virginia Governor at that moment had a -document under lock and key which, had even rumor of it got abroad, -surely would have doomed the Constitution, ended the debate abruptly, -and resulted in another Federal Convention to deal anew with the -Articles of Confederation. - -By now the Anti-Constitutionalists, or Republicans as they had already -begun to call themselves, also were acting in concert throughout the -country. Their tactics were cumbersome and tardy compared with the -prompt celerity of the well-managed Constitutionalists; but they were -just as earnest and determined. The Society of the Federal Republicans -had been formed in New York to defeat the proposed National Government -and to call a second Federal Convention. It opened correspondence in -most of the States and had agents and officers in many of them. - -New York was overwhelmingly against the Constitution, and her Governor, -George Clinton, was the most stubborn and resourceful of its foes. On -December 27, 1787, Governor Randolph, under the formal direction of -Virginia's Legislature, had sent the Governors of the other States a -copy of the act providing for Virginia's Convention, which included the -clause for conferring with her sister Commonwealths upon the calling of -a new Federal Convention. The one to Clinton of New York was delayed in -the mails for exactly two months and eleven days, just long enough to -prevent New York's Legislature from acting on it.[1180] - -After pondering over it for a month, the New York leader of the -Anti-Constitutionalist forces wrote Governor Randolph, more than three -weeks before the Virginia Convention assembled, the now famous letter -stating that Clinton was sure that the New York Convention, to be held -June 17, "will, with great cordiality, hold a communication with any -sister State on the important subject [a new Federal Convention] and -especially with one so respectable in point of importance, ability, and -patriotism as Virginia"; and Clinton assumed that the Virginia -Convention would "commence the measures for holding such -communications."[1181] - -When Clinton thus wrote to Randolph, he supposed, of course, that the -Virginia Governor was against the Constitution. Had the New York -Executive known that Randolph had been proselyted by the -Constitutionalists, Clinton would have written to Henry, or Mason, or -taken some other means of getting his letter before the Virginia -Convention. Randolph kept all knowledge of Clinton's fatal communication -from everybody excepting his Executive Council. He did not make it -public until after the long, hard struggle was ended; when, for the -first time, too late to be of any effect, he laid the New York -communication before the Virginia Legislature which assembled just as -the Convention was adjourning.[1182] - -Weighty as were the arguments and brilliant the oratory that made the -Virginia debate one of the noblest displays of intellect and emotion -which the world ever has seen, yet nothing can be plainer than that -other practices on both sides of that immortal struggle were more -decisive of the result than the amazing forensic duel that took place on -the floor of the Convention hall. - -When one reflects that although the weight of fact and reason was -decisively in favor of the Constitutionalists; that their forces were -better organized and more ably led; that they had on the ground to help -them the most astute politicians from other States as well as from -Virginia; that Washington aggressively supported them with all his -incalculable moral influence; that, if the new National Government were -established, this herculean man surely would be President with all the -practical power of that office, of which patronage was not the -least--when one considers that, notwithstanding all of these and many -other crushing advantages possessed by the Constitutionalists, their -majority, when the test vote finally came, was only eight out of a total -vote of one hundred and sixty-eight; when one takes into account the -fact that, to make up even this slender majority, one or two members -violated their instructions and several others voted against the known -will of their constituents, it becomes plain how vitally necessary to -their cause was the Constitutionalists' capture of the Virginia -Governor.[1183] - -The opponents of the proposed National Government never forgave him nor -was his reputation ever entirely reëstablished. Mason thereafter -scathingly referred to Randolph as "young A[rno]ld."[1184] - -Answering Randolph, Mason went to the heart of the subject. "Whether the -Constitution be good or bad," said he, "it is a national government and -no longer a Confederation ... that the new plan provides for." The power -of direct taxation alone "is calculated to annihilate totally the state -governments." It means, said Mason, individual taxation "by two -different and distinct powers" which "cannot exist long together; the -one will destroy the other." One National Government is not fitted for -an extensive country. "Popular governments can only exist in small -territories." A consolidated government "is one of the worst curses that -can possibly befall a nation." Clear as this now was, when the -Convention came to consider the Judiciary clause, everybody would, Mason -thought, "be more convinced that this government will terminate in the -annihilation of the state governments." - -But here again the author of Virginia's Bill of Rights made a tactical -mistake from the standpoint of the management of the fight, although it -was big-hearted and statesmanlike in itself. "If," said he, "such -amendments be introduced as shall exclude danger ... I shall most -heartily make the greatest concessions ... to obtain ... conciliation -and unanimity."[1185] No grindstone, this, to sharpen activity--no -hammer and anvil, this, to shape and harden an unorganized opposition -into a single fighting blade, wielded to bring victory or even to force -honorable compromise. The suggestion of conciliation before the first -skirmish was over was not the way to arouse the blood of combat in the -loose, undisciplined ranks of the opposition. - -Swift as any hawk, the Constitutionalists pounced upon Mason's error, -but they seized it gently as a dove. "It would give me great pleasure," -cooed Madison, "to concur with my honorable colleague in any -conciliatory plan." But the hour was now late, and he would postpone -further remarks for the time being.[1186] - -So the Convention adjourned and the day ended with the -Constitutionalists in high spirits.[1187] Madison wrote to Washington -that "Henry & Mason made a lame figure & appeared to take different and -awkward ground. The Federalists [Constitutionalists][1188] are a good -deal elated by the existing prospect." Nevertheless, the timid Madison -fluttered with fear. "I dare not," wrote he, "speak with certainty as to -the decision. Kentucky has been extremely tainted and is supposed to be -generally adverse, and every possible piece of address is going on -privately to work on the local interests & prejudices of that & other -quarters."[1189] - -The next day the building of the New Academy, where the Convention met, -was packed with an eager throng. Everybody expected Madison to engage -both Henry and Mason as he had intimated that he would do. But once more -the excellent management of the Constitutionalists was displayed. -Madison, personally, was not popular,[1190] he was physically -unimpressive, and strong only in his superb intellect. The time to -discharge the artillery of that powerful mind had not yet come. Madison -was not the man for this particular moment. But Pendleton was, and so -was "Light-Horse Harry" Lee. The Constitutionalists combined the ermine -and the sword. Virginia's most venerated jurist and her most dashing -soldier were ordered to the front. In them there was an appeal to much -that the Old Dominion still reverenced and loved, in spite of the -"levelling spirit" manifest there as well as in Massachusetts and other -States. So when all eyes were turned on Madison's seat, they beheld it -vacant. Madison had stayed away. Had he been present, he could not have -avoided speaking. - -Dramatic, indeed, appeared the white-haired, crippled jurist, as, -struggling to his feet, he finally stood upon his crutches and faced the -Convention. He had been unused to public debate for many years, and was -thought to be so infirm that no one expected him to do more than make or -decide points of order and give his vote. Yet there the feeble old man -stood to answer the resistless Henry and the learned Mason. His ancient -friend and brother justice, Wythe, leaned forward from his chair to -catch the tones of the beloved voice. Tears rolled down the cheeks of -some of the oldest members who for decades had been Pendleton's -friends.[1191] The Constitutionalists had set the stage to catch the -emotions which they affected to despise, with the very character whose -strength was in that pure reasoning on which they pretended solely to -rely. - -Without wasting a word, Pendleton came to the point. Henry, he said, had -declared that all was well before "this Federal system was thought of." -Was that accurate? In a few short sentences he showed that it was not. -There was, said Pendleton, "no quarrel between government and liberty; -the former is shield and protector of the latter. The war is between -government and licentiousness, faction, turbulence, and other violations -of the rules of society to preserve liberty." Why are the words "We, the -people," improper? "Who but the people have a right to form -government?... What have the state governments to do with it?" Had the -Federal Convention exceeded its powers? No. Because those powers were -"to propose, not to determine." - -"Suppose," asked the venerable Pendleton, "the paper on your table [the -Constitution] dropped from one of the planets; the people found it, and -sent us here to consider whether it was proper for their adoption; must -we not obey them?" Of course. "Then the question must be between this -government and the Confederation," which "is no government at all." The -Confederation did not carry us through the war; "common danger and the -spirit of America" did that. The cry "United we stand--divided we fall," -which "echoed and reëchoed through America--from Congress to the drunken -carpenter"--saved us in that dark hour. And Pendleton clearly, briefly, -solidly, answered every objection which Mason and Henry had made. -Nothing could have been more practically effective than his close. He -was of no party, Pendleton avowed; and his "age and situation" proved -that nothing but the general good influenced him.[1192] - -The smouldering fires in Henry's blood now burned fiercely. This was the -same Pendleton who had fought Henry in his immortal resolution on the -Stamp Act in 1765 and in every other of those epochal battles for -liberty and human rights which Henry had led and won.[1193] But the -Constitutionalists gave the old war horse no chance to charge upon his -lifelong opponent. A young man, thirty-two years of age, rose, and, -standing within a few feet of the chair, was recognized. Six feet tall, -beautiful of face, with the resounding and fearless voice of a warrior, -Henry Lee looked the part which reputation assigned him. Descended from -one of the oldest and most honorable families in the colony, a graduate -of Princeton College, one of the most daring, picturesque, and -attractive officers of the Revolution, in which by sheer gallantry and -military genius he had become commander of a famous cavalry command, the -gallant Lee was a perfect contrast to the venerable Pendleton.[1194] - -Lee paid tribute to Henry's shining talents; but, said he, "I trust that -he [Henry] is come to judge, and not to alarm." Henry had praised -Washington; yet Washington was for the Constitution. What was there -wrong with the expression "We, the people," since upon the people "it -is to operate, if adopted"? Like every Constitutionalist speaker, Lee -painted in somber and forbidding colors the condition of the country, -"all owing to the imbecility of the Confederation."[1195] - -At last Henry secured the floor. At once he struck the major note of the -opposition. "The question turns," said he, "on that poor little -thing--the expression, 'We, the _people_; instead of the _states_.'" It -was an "alarming transition ... a revolution[1196] as radical as that -which separated us from Great Britain.... Sovereignty of the states ... -rights of conscience, trial by jury, liberty of the press, ... all -pretensions of human rights and privileges" were imperiled if not lost -by the change. - -It _was_ the "despised" Confederation that had carried us through the -war. Think well, he urged, before you part with it. "Revolutions like -this have happened in almost every country in Europe." The new -Government may prevent "licentiousness," but also "it will oppress -and ruin the people," thundered their champion. The Constitution -was clear when it spoke of "sedition," but fatally vague when it -spoke of "privileges." Where, asked Henry, were the dangers the -Constitutionalists conjured up? Purely imaginary! If any arose, he -depended on "the American spirit" to defend us. - -The method of amendment provided in the Constitution, exclaimed Henry, -was a mockery--it shut the door on amendment. "A contemptible minority -can prevent the good of the majority." "A standing army" will "execute -the execrable commands of tyranny," shouted Henry. And who, he asked, -will punish them? "Will your mace-bearer be a match for a disciplined -regiment?" If the Constitution is adopted, "it will be because we like a -great splendid" government. "The ropes and chains of consolidation" were -"about to convert this country into a powerful and mighty empire." The -Constitution's so-called checks and balances, sneered Henry, were -"rope-dancing, chain-rattling, ridiculous ... contrivances." - -The Constitutionalists talked of danger if the Confederation was -continued; yet, under it, declared Henry, "peace and security, ease and -content" were now the real lot of all. Why, then, attempt "to terrify us -into an adoption of this new form of government?... Who knows the -dangers this new system may produce? They are out of sight of the common -people; they cannot foresee latent consequences." It was the operation -of the proposed National Government "on the middling and lower classes -of people" that Henry feared. "This government" [the Constitution], -cried he, "is not a Virginian but an American government." - -Throughout Henry's speech, in which he voiced, as he never failed to do, -the thought of the masses, a National Government is held up as a foreign -power--even one so restricted as the literal words of the Constitution -outlined. Had the Constitutionalists acknowledged those Nationalist -opinions which, in later years, were to fall from the lips of a young -member of the Convention and become the law of the land, the defeat of -the Constitution would have been certain, prompt, and overwhelming. - -In the Constitution's chief executive, Henry saw "a great and mighty -President" with "the powers of a King ... to be supported in extravagant -magnificence." The National Government's tax-gatherers would "ruin you -with impunity," he warned his fellow members and the people they -represented. Did not Virginia's own "state sheriffs, those unfeeling -blood-suckers," even "under the watchful eye of our legislature commit -the most horrid and barbarous ravages on our people? ... Lands have been -sold," asserted he, "for 5 shillings which were worth one hundred -pounds." What, then, would happen to the people "if their master had -been at Philadelphia or New York?" asked Henry. "These harpies may -search at any time your houses and most secret recesses." Its friends -talked about the beauty of the Constitution, but to Henry its features -were "horribly frightful. Among other deformities, it has an awful -squinting; it squints toward monarchy." - -The President, "your American chief," can make himself absolute, -dramatically exclaimed the great orator. "If ever he violates the -laws ... he will come at the head of his army to carry everything before -him; or he will give bail, or do what Mr. Chief Justice will order him." -But will he submit to punishment? Rather, he will "make one bold push -for the American throne," prophesied Henry. "We shall have a king; the -army will salute him monarch: your militia will leave you, and assist in -making him king and fight against you."[1197] It would be infinitely -better, he avowed, to have a government like Great Britain with "King, -Lords, and Commons, than a government so replete with such insupportable -evils" as the Constitution contained. - -Henry spoke of the danger of the power of Congress over elections, and -the treaty-making power. A majority of the people were against the -Constitution, he said, and even "the adopting states have already -heart-burnings and animosity and repent their precipitate hurry.... -Pennsylvania has been tricked into" ratification. "If other states who -have adopted it have not been tricked, still they were too much -hurried.[1198] ... I have not said the one hundred thousandth part of -what I have on my mind and wish to impart"--with these words of warning -to the Constitutionalists, Henry closed by apologizing for the time he -had taken. He admitted that he had spoken out of order, but trusted that -the Convention would hear him again.[1199] - -Studying this attack and defense of master swordsmen, following the -tactical maneuvers of America's ablest politicians, a partisan on one -side, yet personally friendly with members of the other, John Marshall -was waiting for the call that should bring him into the battle and, by -the method which he employed throughout his life, preparing to respond -when the Constitutionalist managers should give the word. He was -listening to the arguments on both sides, analyzing them, and, by that -process of absorption with which he was so peculiarly and curiously -gifted, mastering the subjects under discussion. Also, although casual, -humorous, and apparently indifferent, he nevertheless was busy, we may -be sure, with his winning ways among his fellow members. - -Patrick Henry's effort was one of the two or three speeches made during -the three weeks of debate which actually may have had an effect upon -votes.[1200] The Constitutionalists feared that Henry would take the -floor next morning to follow up his success and deepen the profound -impression he had made. To prevent this and to break the force of -Henry's onslaught, they put forward Governor Randolph, who was quickly -recognized by the chair. Madison and Nicholas were held in -reserve.[1201] - -But in vain did Randolph employ his powers of oratory, argument, and -persuasion in the great speech beginning "I am a child of the -Revolution," with which he attempted to answer Henry. There is no peace; -"the tempest growls over you.... Justice is suffocated," he said; legal -proceedings to collect debts are "obscured by legislative mists." As an -illustration of justice, consider the case of Josiah Philips, executed -without trial or witness, on a bill of attainder passed without debate -on the mere report of a member of the Legislature: "_This made the -deepest impression on my heart and I cannot contemplate it without -horror_."[1202] As to "the American spirit" expressed through the -militia being competent to the defense of the State, Randolph asked: -"Did ever militia defend a country?" - -Randolph's speech was exhaustive and reached the heights of real -eloquence. It all came to this, he said, Union or Dissolution, thus -again repeating the argument Washington had urged in his letter to -Randolph. "Let that glorious pride which once defied the British -thunder, reanimate you again," he cried dramatically.[1203] But his -fervor, popularity, and influence were not enough. - -Marshall, when he came to speak later in the debate, made the same -mistake. No more striking illustration exists of how public men, in the -hurry and pressure of large affairs, forget the most important events, -even when they themselves were principal actors in them. - -Although the time had not properly come for the great logician of the -Constitution to expound it, the situation now precipitated the -psychological hour for him to strike. The chair recognized a slender, -short-statured man of thirty-seven, wearing a handsome costume of blue -and buff with doubled straight collar and white ruffles on breast and at -wrists. His hair, combed forward to conceal baldness, was powdered and -fell behind in the long beribboned queue of fashion. He was so small -that he could not be seen by all the members; and his voice was so weak -that only rarely could he be heard throughout the hall.[1204] Such was -James Madison as he stood, hat in hand and his notes in his hat, and -began the first of those powerful speeches, the strength of which, in -spite of poor reporting, has projected itself through more than a -hundred years. - -At first he spoke so low that even the reporter could not catch what he -said.[1205] He would not, remarked Madison, attempt to impress anybody -by "ardent professions of zeal for the public welfare." Men should be -judged by deeds and not by words. The real point was whether the -Constitution would be a good thing or a bad thing for the country. Henry -had mentioned the dangers concealed in the Constitution; let him specify -and prove them. One by one he caught and crushed Henry's points in the -jaws of merciless logic. - -What, for the gentle Madison, was a bold blow at the opposition shows -how even he was angered. "The inflammatory violence wherewith it [the -Constitution] was opposed by designing, illiberal, and unthinking minds, -begins to subside. I will not enumerate the causes from which, in my -conception, the heart-burnings of a majority of its opposers have -originated." His argument was unanswerable as a matter of pure reason -and large statesmanship, but it made little headway and had only slight -if any influence. "I am not so sanguine," reported Washington's nephew -to the General at Mount Vernon, "as to ... flatter myself that he made -many converts."[1206] - -The third gun of the powerful battery which the Constitutionalists had -arranged to batter down the results of Henry's speech was now brought -into action. George Nicholas again took the floor. He was surprised that -Mason's resolution to debate the Constitution clause by clause had not -been followed. But it had not been, and therefore he must speak at -large. While Nicholas advanced nothing new, his address was a -masterpiece of compact reasoning.[1207] - -Age and middle age had spoken for the Constitution; voices from the -bench and the camp, from the bar and the seats of the mighty, had -pleaded for it; and now the Constitutionalists appealed to the very -young men of the Convention through one of the most attractive of their -number. The week must not close with Henry's visions of desolation -uppermost in the minds of the members. On Saturday morning the chair -recognized Francis Corbin of Middlesex. He was twenty-eight years old -and of a family which had lived in Virginia from the early part of the -seventeenth century. He had been educated in England at the University -of Cambridge, studied law at the Inner Temple, was a trained lawyer, and -a polished man of the world. - -Corbin made one of the best speeches of the whole debate. On the -nonpayment of our debts to foreign nations he was particularly strong. -"What!" said he, "borrow money to discharge interest on what was -borrowed?... Such a plan would destroy the richest country on earth." As -to a Republican Government not being fitted for an extensive country, he -asked, "How small must a country be to suit the genius of -Republicanism?" The power of taxation was the "lungs of the -Constitution." His defense of a standing army was novel and ingenious. -The speech was tactful in the deference paid to older men, and so -captivating in the pride it must have aroused in the younger members -that it justified the shrewdness of the Constitutionalist generals in -putting forward this youthful and charming figure.[1208] - -Of course Henry could not follow a mere boy. He cleverly asked that -Governor Randolph should finish, as the latter had promised to -do.[1209] Randolph could not avoid responding; and his speech, while -very able, was nevertheless an attempt to explode powder already -burned.[1210] Madison saw this, and getting the eye of the chair -delivered the second of those intellectual broadsides, which, together -with his other mental efforts during the Constitutional period, mark him -as almost the first, if not indeed the very first, mind of his -time.[1211] The philosophy and method of taxation, the history and -reason of government, the whole range of the vast subject were -discussed,[1212] or rather begun; for Madison did not finish, and took -up the subject four days later. His effort so exhausted him physically -that he was ill for three days.[1213] - -Thus fortune favored Henry. The day, Saturday, was not yet spent. After -all, he could leave the last impression on the members and spectators, -could apply fresh color to the picture he wished his hearers to have -before their eyes until the next week renewed the conflict. And he could -retain the floor so as to open again when Monday came. The art of Henry -in this speech was supreme. He began by stating the substance of Thomas -Paine's terrific sentence about government being, at best, "a necessary -evil"; and aroused anew that repugnance to any sturdy rule which was a -general feeling in the breasts of the masses. - -Both the Confederation and the proposed Constitution were "evils," -asserted Henry, and the only question was which was the less. Randolph -and Madison incautiously had referred to maxims. Henry seized the word -with infinite skill. "It is impiously irritating the avenging hand of -Heaven ... to desert those maxims which alone can preserve liberty," he -thundered. They were lowly maxims, to be sure, "poor little, humble -republican maxims"; but "humble as they are" they alone could make a -nation safe or formidable. He rang the changes on the catchwords of -liberty. - -Then Henry spoke of Randolph's change of front. The Constitution "was -once execrated" by Randolph. "It seems to me very strange and -unaccountable that that which was the object of his execration should -now receive his encomiums. Something extraordinary must have operated so -great a change in his opinion." Randolph had said that it was too late -to oppose the "New Plan"; but, answered Henry, "I can never believe that -it is too late to save all that is precious." Henry denied the woeful -state of the country which the Constitutionalist speakers had pictured. -The "imaginary dangers" conjured by them were to intimidate the people; -but, cried Henry, "fear is the passion of slaves." The execution of -Josiah Philips under the bill of attainder was justifiable. Philips had -been a "fugitive murderer and an outlaw" leader of "an infamous -banditti," perpetrator of "the most cruel and shocking barbarities ... -an enemy to human nature."[1214] - -It was not true, declared Henry, that the people were discontented under -the Confederation--at least the common people were not; and it was the -common people for whom he spoke. But, of course, sneered that consummate -actor, "the middling and lower ranks of people have not those -illuminated ideas" which the "well-born" are so happily possessed of; -"they [the common people] cannot so readily perceive latent objects." It -was only the "illuminated imaginations" and the "microscopic eyes of -modern statesmen" that could see defects where there were none. - -Henry hinted with great adroitness at the probable loss of the -Mississippi, which was the sorest point with the members from Kentucky; -and, having injected the poison, passed on to let it do its work against -the time when he would strike with all his force. Then he appealed to -state pride. "When I call this the most mighty state in the Union, do I -not speak the truth? Does not Virginia surpass every state?" Of course! -There was no danger, then, that Virginia would be left out of the Union, -as the Constitutionalists had hinted might happen if Virginia rejected -the Constitution; the other States would be glad to have her on her own -terms. - -Henry went over a variety of subjects and then returned to his favorite -idea of the National Government as something foreign. Picking up a -careless word of Randolph, who had spoken of the people as a "herd," -Henry said that perhaps the words "We, the people," were used to -recommend it to the masses, "to those who are likened to a _herd_; and -by the operation of this blessed system are to be transformed from -respectable, independent citizens, to abject, dependent subjects or -slaves."[1215] Finally, when he felt that he had his hearers once more -under his spell, Henry, exclaiming that a Bill of Rights was vital, -asked for adjournment, which was taken, the great orator still holding -the floor. - - -FOOTNOTES: - -[1111] Though "practical," these methods were honorable, as far as the -improper use of money was concerned. - -[1112] King to Langdon, June 10, 1788; King, i, 331. - -[1113] Hamilton to Madison, May 19, 1788; _Works_: Lodge, ix, 430. See -also _ib._, 432. - -[1114] Knox to King, June 19, 1788; King, i, 335. - -[1115] Hill to Thatcher, Jan. 1, 1788; _Hist. Mag._ (2d Series), vi, -261. - -[1116] King to Madison, May 25, 1788; King, i, 329. - -[1117] Hamilton to Madison, June 27, 1788; _Works_: Lodge, ix, 436. -Virginia had ratified the Constitution two days before Hamilton wrote -this letter, but the news did not reach New York until long afterward. - -[1118] Hamilton to Madison, June 8, 1788; _Works_: Lodge, ix, 432-34. - -[1119] Grigsby, i, 8. About three eighths of Virginia's population were -slaves valued at many millions of dollars. - -[1120] Grigsby, i, footnote to 50; also 32; and see examples given by -Judge Scott, in Scott, 235-38. - -[1121] Grigsby, i, footnote to 36; and see 29, 62, 339. - -[1122] Henry, ii, 339; and Rowland, ii, 223 _et seq._ - -[1123] Rives, ii, 549. - -[1124] Randolph to the Speaker of the House of Delegates, Oct. 10, 1787; -Elliott, i, 482-91; also Ford: _P. on C._, 261-76. - -[1125] Randolph to Page and others, Dec. 2, 1787; _American Museum_, -iii, 61 _et seq._ - -[1126] _Ib._ - -[1127] Lee to Randolph, Oct. 16, 1787; Elliott, i, 503. Upon the -publication of this correspondence a young Richmond attorney, Spencer -Roane, the son-in-law of Patrick Henry, in an article signed "Plain -Dealer," published in the _Virginia Gazette_, attacked Randolph for -inconsistency. "Good God! How can the first magistrate and father of a -pure republican government ... before his proposed plan of amendment has -been determined upon, declare that he will accept a Constitution which -is to beget a monarchy or an aristocracy?... Can he foretell future -events? How else can he at this time discover what the 'spirit of -America' is?... How far will this principle carry him? Why, ... if the -dominion of Shays, instead of that of the new Constitution, should be -generally accepted, and become 'the spirit of America,' his Excellency -would turn Shayite." (Plain Dealer to Randolph, Feb. 13, 1788; Ford: -_Essays on the Constitution_, 385; also _Branch Hist. Papers_, 47.) -Roane's letter is important as the first expression of his hostility to -the Constitution. He was to become the determined enemy of Marshall; -and, as the ablest judge of the Virginia Court of Appeals, the chief -judicial foe of Marshall's Nationalism. (See vol. III of this work.) - -[1128] "The importunities of some to me in public and private are -designed to throw me unequivocally and without condition, into the -opposition." (Randolph to Madison, Feb. 29, 1788; Conway, 101.) - -[1129] Washington to Randolph, Jan. 8, 1788; _Writings_: Ford, xi, -204-06. - -[1130] Madison to Randolph, Jan. 10, 1788; _Writings_: Hunt, v, 79-84; -and see same to same, Jan. 20, 1788 (_ib._, 86-88); and March 3, 1788 -(_ib._, 113-14). - -[1131] "If he [Randolph] approves it at all, he will do it feebly." -(Washington to Lafayette, April 28, 1788; _Writings_: Ford, xi, 255; and -see Madison to Jefferson, April 22, 1788; _Writings_: Hunt, v, 121.) - -[1132] Randolph to Madison, Feb. 29, 1788; quoted in Conway, 101. - -[1133] "Randolph was still looked upon as an Anti-Federalist by the -uninitiated." But his "position ... was evidently no secret to -Washington." (Rowland, ii, 210. See also _ib._, 225, 227, 231.) - -[1134] _Ib._ - -[1135] Randolph to Madison, Feb. 29, 1788; Conway, 101. - -[1136] Scott, 160. - -[1137] Washington to Carter, Dec. 14, 1787; _Writings_: Ford, xi, -footnote to 210. - -[1138] Smith to Madison, June 12, 1788; Rives, ii, footnote to p. 544. - -[1139] _Ib._ "The Baptist interest ... are highly incensed by Henry's -opinions and public speeches." (Randolph to Madison, Feb. 29, 1788; -Conway, 101.) - -[1140] Smith to Madison, June 12, 1788; Rives, ii, 544. - -[1141] Washington to Hamilton, Nov. 10, 1787; _Writings_: Ford, xi, -footnote to p. 181. - -[1142] Washington to Trumbull, Feb. 5, 1788; _Writings_: Ford, 212. From -the first Washington attributed much of the opposition throughout the -country to the fact that popular leaders believed that the new National -Government would lessen their importance in their respective States. -"The governors elect or to be elected, the legislators, with a long -tribe of others whose political importance will be lessened if not -annihilated" were, said Washington, against a strong central Government. -(Washington to Knox, Feb. 3, 1787; Sparks, ix, 230; and see Graydon, -340.) - -[1143] Washington to Lincoln, April 2, 1788; _ib._, xi, footnote to -239-40. - -[1144] "Letters of a Federal Farmer," no. 3; Ford: _P. on C._, 301. - -[1145] _Ib._, no. 5, 319. - -[1146] Washington to Armstrong, April 25, 1788; _Writings_: Ford, xi, -252; and to Petit, Aug. 16, 1788; _ib._, 300. - -[1147] Madison to Jefferson, April 22, 1788; _Writings_: Hunt, v, -120-22. - -[1148] Grigsby, i, 34-35; and footnote to 49. - -[1149] Grigsby, i, 64-66; and Elliott, iii, 1. - -[1150] Rowland, ii, 222. - -[1151] Henry, ii, 345. So angered were the Anti-Constitutionalists that -they would not correct or revise Robertson's reports of their speeches. -(_Ib._) - -[1152] Elliott, iii, 1. - -[1153] _Ib._, 5-6; also, Journal of the Convention, 7-11. - -[1154] Grigsby, i, 69-70. In the descriptions of the dress, manners, and -appearance of those who took part in the debate, Grigsby's account has -been followed. Grigsby took infinite pains and gave many years to the -gathering and verifying of data on these picturesque subjects; he was -personally intimate with a large number of the immediate descendants of -the members of the Convention and with a few who were eye-witnesses; and -his reconstruction of the scenes in the Convention is believed to be -entirely accurate. - -[1155] Elliott, iii, 3. - -[1156] Mason's clause-to-clause resolve was, "contrary to his -expectations, concurred in by the other side." (Madison to Washington, -June 4, 1788; _Writings_: Hunt, v, footnote to 124.) And see -Washington's gleeful report to the New York Constitutionalists of -Mason's error: "This [Mason's resolve] was as unexpected as acceptable -to the federalists, and their ready acquiescence seems to have somewhat -startled the opposite side for fear they had committed themselves." -(Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271.) - -[1157] Elliott, iii, 4. - -[1158] Grigsby, i, 77. - -[1159] For a discussion of this tactical blunder of the opponents of the -Constitution, see Grigsby, i, 72. - -[1160] Elliott, iii, 4. - -[1161] Grigsby, i, 75. - -[1162] Elliott, iii, 6. - -[1163] _Ib._ - -[1164] Grigsby, i, 77. - -[1165] _Ib._, 79. - -[1166] _Ib._, 78, 79, 140, 141, 246, 247. - -[1167] Elliott, iii, 7-21. - -[1168] Grigsby, i, 76. - -[1169] Elliott, iii, 21-23. - -[1170] Grigsby, i, 83-84. - -[1171] Madison was the real designer of the Virginia plan. (Rives, ii, -chap. xxvii.) - -[1172] This was the point Washington had made to Randolph. It is -interesting that, throughout the debate, Randolph, over and over again, -used almost the exact language of Washington's letter. - -[1173] Elliott, iii, 23-29. Randolph's speech was apologetic for his -change of heart. He was not "a candidate for popularity": he had -"satisfied his conscience," etc. - -[1174] Madison to Washington, June 4, 1788; _Writings_: Hunt, v, 124. - -[1175] Jefferson to Short, Sept. 20, 1788; quoting a private letter from -Virginia of July 12; _Works_: Ford, v, 431. - -[1176] Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271. - -[1177] Bland to Lee, June 13, 1788; Rowland, ii, 243-44. Evidently the -opposition was slow to believe that Randolph had irrevocably deserted -them; for Bland's letter was not written until Randolph had made his -fourth extended speech ten days later. - -[1178] Scott, 160. - -[1179] Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271. - -[1180] From this delay Randolph's enemies have charged that his letter -to Clinton was not posted in time. Much as Randolph had to answer for, -this charge is unjust. Letters between Richmond and New York sometimes -were two or three months on the way. (See _supra_, chap. VII.) - -[1181] Clinton to Randolph, May 8, 1788; Conway, 110-12. - -[1182] Clinton to Randolph, May 8, 1788; Conway, 110-12; Henry, ii, 363; -Rowland, ii, 276-79; and see _infra_, chap. XII. - -[1183] Randolph's change was ascribed to improper motives. Mason was -almost offensive in his insinuations during the debate and Henry openly -so, as will appear. Randolph's last words to the Convention were -explanatory and defensive. - -Washington made Randolph his first Attorney-General and he exercised -great power for a time. "The Government is now solely directed by -Randolph," complained Jefferson. (Conway, 140.) While Washington -certainly did not appoint Randolph as a reward for his conduct in the -struggle over the Constitution, it is a reasonable inference that he -would not have been made a member of the Cabinet if he had not abandoned -his opposition, supported the Constitution, and suppressed Clinton's -letter. - -Virginia had the head of the Cabinet in Jefferson as Secretary of State; -Washington himself was from Virginia; and since there were numerous men -from other States as well as or better equipped than Randolph for the -Attorney-Generalship, his selection for that place is, at least, -noteworthy. It gave Virginia the Presidency and two members of a Cabinet -which numbered only four in all. - -When the Attorney-Generalship was tendered to Randolph, he wrote to -Madison bitterly resenting "the load of calumny which would be poured -upon" him if he should accept. "For," writes Randolph, "it has been -insinuated ... that my espousal of the Constitution had alienated even -its friends from me, who would not elect me to the house of -representatives. The insinuation has been carried so far as to apply it -to the disposal of offices under the government." (Randolph to Madison, -July 19, 1789; Conway, 127-28.) - -[1184] Rowland, ii, 308. - -[1185] Elliott, iii, 29-34. - -[1186] Elliott, iii, 34-35. - -[1187] Grigsby, i, 99. - -[1188] Those who supported the Constitution were called "Federalists" -and its opponents "Anti-Federalists"; but, for sake of clearness, the -terms "Constitutionalists" and "Anti-Constitutionalists" are employed in -these chapters. - -[1189] Madison to Washington, June 4, 1788; _Writings_: Hunt, v, -footnote to 123-24. - -[1190] Grigsby, i, footnote to 46. - -[1191] Grigsby, i, 101-02. Scenes of a similar character occurred -several times in both Senate and House between 1900 and 1911, when one -of our elder statesmen, who plainly was nearing the end of life, rose to -speak. More than one notable contest, during that decade, was decided by -the sympathetic votes of aged friends who answered the call of long -years of affection. - -[1192] Elliott, iii, 35-41. - -[1193] See _infra_, chap, III; also Grigsby, i, 105-06. - -[1194] _Ib._, 106-09. - -[1195] Elliott, iii, 41-43. - -[1196] Elliott, iii, 44. The word "revolution" is printed "resolution" -in Elliott's _Debates_. This is a good example of the inaccuracy of -Elliott's reprint of Robertson's stenographic report. In Robertson's -_Debates_, published in 1805, the word is correctly printed -"revolution." I have cited Elliott only because it is accessible. Even -Robertson's report is admittedly meager and unsatisfactory; all the -more, therefore, is it to be regretted that Elliott's reprint should be -so inaccurate. - -[1197] At this point the reporter, unable to follow Henry's speech, -notes that he "strongly and pathetically expatiated on the probability -of the President's enslaving America and the horrid consequences that -must result." (Elliott, iii, 60.) - -[1198] Henry had not heard of the Constitutionalists' bargain with -Hancock in Massachusetts. - -[1199] Elliott, iii, 43-64. - -[1200] General Posey, a Revolutionary officer, who was for the -Constitution, afterwards said that Henry's speech made him believe that -the Constitution would destroy liberty. Another intelligent man who -heard Henry's speech said that when the great orator pictured the -President at the head of the army, he felt his own wrists for the -shackles, and that his place in the gallery suddenly seemed like a -dungeon. (Grigsby, i, 118-19.) - -[1201] Grigsby, i, 121. - -[1202] Elliott, iii, 64-86. In the debate, much was made of this famous -case. Yet Philips was not executed under the provisions of the law -Randolph referred to. When arrested, he was indicted, tried, and -convicted in the General Court; and he was hanged by sentence of the -court, December 4, 1778. - -Although, at that time, Randolph was Attorney-General of Virginia and -actually prosecuted the case; and although Henry was Governor and -ordered the arrest of Philips (Henry, i, 611-13), yet, ten years later, -both had forgotten the facts, and Randolph charged, and Henry in reply -admitted, that Philips had been executed under the bill of attainder -without trial. (Jefferson to Wirt, Oct. 14, 1814; _Works_: Ford, xi, -407.) The bill of attainder was drawn by Jefferson. It appears in _ib._, -ii, 330-36. - -[1203] Again, Randolph's speech was marred by the note of personal -explanation that pervaded it. "The rectitude of my intentions"; -"ambition and popularity are no objects with me"; "I expect, in the -course of a year, to retire to that private station which I most -sincerely and cordially prefer to all others,"--such expressions gave to -his otherwise aggressive and very able appeal a defensive tone. - -[1204] Grigsby, i, 130. Madison's apparel at this Convention was as -ornate as his opinions were, in his opponents' eyes, "aristocratic." - -[1205] Elliott, iii, 86. See entire speech, _ib._, 86-96. - -[1206] Bushrod Washington to Washington, June 6, 1788; _Writings_: -Sparks, ix, 378. But Madison gave Henry an opening through which that -veteran orator drove like a troop of horse, as far as practical and -momentary effect was concerned. Madison described the new government as -partly National and partly Federal. (Elliott, iii, 94; and see Henry's -use of this, _ib._, 171; also _infra_.) - -[1207] Elliott, iii, 97-103. - -[1208] Elliott, iii, 104-14. - -[1209] Elliott, iii, 114. - -[1210] _Ib._, 114-28. - -[1211] Madison was equaled only by Hamilton in sheer intellectuality, -but he was inferior to that colossus in courage and constructive genius. - -[1212] _Ib._, 128-37. - -[1213] Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong. -Madison's four famous speeches in this Convention, are properly parts of -one comprehensive exposition. (See Madison's own notes for the third of -these speeches in _Writings_: Hunt, v, 148.) Mr. Hunt also prints -accurately Robertson's report of the speeches themselves in that volume. -They cannot be summarized here, but should be read in full. - -[1214] See _supra_, footnote to 393. - -[1215] Elliott, iii, 137-50. - - - - -CHAPTER XI - -THE SUPREME DEBATE - - There will undoubtedly be a greater weight of abilities against - the adoption in this convention than in any other state. - (Washington.) - - What are the objects of the National Government? To protect the - United States and to promote the general welfare. (Marshall, in - his first debate.) - - -Now appeared the practical political managers from other States. From -Saturday afternoon until Monday morning there was great activity in both -camps. The politicians of each side met in secret conference to plan the -operations of the coming week and to devise ways and means of getting -votes. For the Constitutionalists, Gouverneur Morris was on the ground -from New York;[1216] Robert Morris and probably James Wilson, both from -Philadelphia, had been in Virginia at the time of the elections and the -former remained for the Convention.[1217] During the second week the -Philadelphia financier writes Gates from Richmond, lamenting "the -depredations on my purse," but "inclined to think the Constitution will -be adopted by Virginia."[1218] - -For the opposition, Oswald, publisher of the "Independent Gazetteer," -came on from Philadelphia and arrived in Richmond at the close of the -first week's debate. He at once went into secret conference with Henry, -Mason, and the other Anti-Constitutionalist leaders. Madison reports to -Hamilton that "Oswald of Phil^a came here on Saturday; and he has closet -interviews with the leaders of the opposition."[1219] By the same mail -Grayson advises the general Anti-Constitutionalist headquarters in New -York that he is "sorry ... that our affairs in the convention are -suspended by a hair." Randolph's conduct "has not injured us," writes -Grayson, thus proving how poorly the Anti-Constitutionalists estimated -the real situation. But they were practical enough to know that "there -are seven or eight dubious characters whose opinions are not known" and -upon whose decisions the fate of the Constitution "will ultimately -depend." Grayson cautions Lamb not to let this get into the -newspapers.[1220] - -Just what was devised and decided by the leaders of both sides in these -behind-the-doors meetings and what methods were used outside the -Convention hall to influence votes, there is no means of learning -exactly; though "the opposition" committee seems to have been occupied -chiefly in drawing amendments.[1221] But the frequent references, -particularly of the Constitutionalist speakers on the floor, to improper -conduct of their adversaries "out of doors" show that both sides were -using every means known to the politics of the day to secure support. In -the debate itself Henry certainly was making headway.[1222] - -On Monday, Henry and Mason made a dramatic entrance into the Convention -hall. Walking arm in arm from their quarters in "The Swan,"[1223] they -stopped on the steps at the doors of the New Academy and conferred -earnestly for some minutes; so great was the throng that the two -Anti-Constitutionalist chieftains made their way to their seats with -great difficulty.[1224] When Henry rose to go on with his speech, the -plan decided on during Sunday quickly was revealed. The great prize for -which both sides now were fighting was the votes from Kentucky.[1225] -Henry held up before them the near forfeiture to the Spanish of our -right to navigate the Mississippi.[1226] This, he said, was the work of -seven Northern States; but under the Confederation they had been -thwarted in their fell purpose by six Southern States; and the -Mississippi still remained our own. But if the Constitution was adopted, -what would happen? The Senate would be controlled by those same Northern -States that had nearly succeeded in surrendering the great waterway and -the West and South would surely be deprived of that invaluable -commercial outlet. He asked the members of Congress who were in the -Convention to tell the facts about the Mississippi business. Jefferson, -he avowed, had counseled Virginia to "reject this government."[1227] - -Henry answered the Constitutionalists' prophecy of foreign war, -ridiculed danger from the Indians, proved that the Constitution would -not pay Virginia's debts; and, in characteristic fashion, ranged at -large over the field. The Constitution, he asserted, would "operate like -an ambuscade ... destroy the state governments ... swallow the liberties -of the people without" warning. "How are our debts to be discharged -unless taxes are increased?" asked he; and demonstrated that under the -Constitution taxes surely would be made heavier. Time and again he -warned the Convention against the loss of liberty: "When the deprivation -of our liberty was attempted, what did ... the genius of Virginia tell -us? '_Sell all and purchase liberty!_'... Republican maxims,... and the -genius of Virginia landed you safe on the shore of freedom." - -Once more he praised the British form of government--an oversight which -a hawk-eyed young member of the Convention, John Marshall, was soon to -use against him. Henry painted in darkest colors the secrecy of the -Federal Convention. "_Look at us--hear our transactions!_--if this had -been the language of the Federal Convention," there would have been no -Constitution, he asserted, and with entire accuracy. Yet, the -Constitution itself authorized Congress to keep its proceedings as -secret as those of the Constitution's makers had been kept: "The -transactions of Congress," said Henry, "may be concealed a century from -the public."[1228] - -Seizing Madison's description of the new Government as partly National -and partly Federal, Henry brought to bear all his power of satire. He -was "amused" at Madison's "treatise of political anatomy.... In the -brain it is national; the stamina are federal; some limbs are federal, -others national." Absurd! The truth was, said Henry, that the -Constitution provided for "a great consolidation of government." Why not -abolish Virginia's Legislature and be done with it? This National -Government would do what it liked with Virginia. - -As to the plan of ratifying first and amending afterwards, Henry -declared himself "at a loss what to say. You agree to bind yourselves -hand and foot--for the sake of what? Of being unbound. You go into a -dungeon--for what? To get out.... My anxiety and fears are great lest -America by the adoption of this system [the Constitution], should be -cast into a fathomless bottom." - -Tradition has it that during this speech Henry, having frozen his -hearers' blood by a terrific description of lost "liberty," with one of -his sudden turns set both Convention and spectators into roars of -laughter by remarking with a grimace, and as an aside, "why, _they'll -free your niggers_."[1229] And then, with one of those lightning changes -of genius, which Henry alone could make, he solemnly exclaimed, "I look -on that paper [the Constitution] as the most fatal plan that could -possibly be conceived to enslave a free people."[1230] - -Lee, in reply, spoke of the lobbying going on outside the Convention. -"Much is said by gentlemen out of doors," exclaimed Lee; "they ought to -urge all their objections here." He taunted Henry, who had praised the -militia, with not having been himself a soldier. "I saw what the -honorable gentleman did not see," cried Lee, "our men fight with the -troops of that King whom he so much admires."[1231] - -When the hot-blooded young soldier had finished his aggressive speech, -Randolph could no longer restrain himself. Henry's bold challenge of -Randolph's change of front had cut that proud and sensitive nature to -the heart. "I disdain," thundered he, "his aspersions and his -insinuations." They were "warranted by no principle of parliamentary -decency, nor compatible with the least shadow of friendship; and if our -friendship must fall, _let it fall, like Lucifer, never to rise again_!" -It was not to answer Henry that he spoke, snarled Randolph, "but to -satisfy this respectable audience." Randolph then explained his conduct, -reading part of the letter[1232] that had caused all the trouble, -and dramatically throwing the letter on the clerk's table, cried -"that it might lie there for _the inspection of the curious and -malicious_."[1233] Randolph spoke for the remainder of the day and -consumed most of the next forenoon.[1234] - -No soldier had yet spoken for the Anti-Constitutionalists; and it -perhaps was Lee's fling at Henry that now called a Revolutionary officer -to his feet against the Constitution. A tall, stiff, raw-boned young man -of thirty years arose. Poorly educated, slow in his mental -processes,[1235] James Monroe made a long, dull, and cloudy speech, -finally declaring of the Constitution, "I think it a dangerous -government"; and asking "why ... this haste--this wild precipitation?" -Long as Monroe's speech was, he reminded the Convention that he had "not -yet said all that I wish upon the subject" and that he would return to -the charge later on.[1236] - -Monroe did not help or hurt either side except, perhaps, by showing the -members that all the Revolutionary veterans were not for the -Constitution. Neither members nor spectators paid much attention to him, -though this was no reflection on Monroe, for the Convention did not -listen with patience to many speakers except Henry. When Henry spoke, -every member was in his seat and the galleries were packed. But only the -most picturesque of the other speakers could hold the audience for -longer than half an hour; generally members walked about and the -spectators were absent except when Henry took the floor.[1237] - -As usual, the Constitutionalists were ready with their counter-stroke. -Wythe in the chair recognized a tall, ungainly young man of thirty-two. -He was badly dressed in a loose, summer costume, and his blazing black -eyes and unkempt raven hair made him look more like a poet or an artist -than a lawyer or statesman.[1238] He had bought a new coat the day the -Convention met; but it was a most inexpensive addition to his raiment, -for it cost but one pound, Virginia currency, then greatly -depreciated.[1239] He probably was the best liked of all the members of -the Convention. Sociable to extreme good-fellowship, "his habits," says -Grigsby, "were convivial almost to excess";[1240] and it is more than -likely that, considering the times, these habits in his intimate social -intercourse with his fellow members helped to get more votes than his -arguments on the floor, of which he now was to make the first.[1241] His -four years' record as a soldier was as bright and clean as that of any -man from any State who had fought under Washington. - -So when John Marshall began to speak, he was listened to with the ears -of affection; and any point the opposition had made by the fact that -Monroe the soldier had spoken against the Constitution was turned by -Marshall's appearance even before he had uttered a word. The young -lawyer was also accounted an "orator" at this time,[1242] a fact which -added to the interest of his fellow members in his speech. - -The question, Marshall said, was "whether democracy or despotism be most -eligible."[1243] He was sure that the framers and supporters of the -Constitution "intend the establishment and security of the former"; they -are "firm friends of the liberty and the rights of mankind." That was -why they were for the Constitution. "We, sir, idolize democracy." The -Constitution was, said he, the "best means of protecting liberty." The -opposition had praised monarchy, but, deftly avowed Marshall, "We prefer -this system to any monarchy"; for it provides for "a well regulated -democracy." - -He agreed with Henry that maxims should be observed; they were -especially "essential to a democracy." But, "what are the ... maxims of -democracy?... A strict observance of justice and public faith, and a -steady adherence to virtue. These, Sir, are the principles of a good -government,"[1244] declared the young Richmond Constitutionalist. - -"No mischief, no misfortune, ought to deter us from a strict observance -of justice and public faith," cried Marshall. "Would to Heaven," he -exclaimed, "that these principles had been observed under the present -government [the Confederation]." He was thinking now of his experience -in the Legislature and appealing to the honesty of the Convention. If -the principles of justice and good faith had been observed, continued -he, "the friends of liberty would not be so willing now to part with it -[the Confederation]." - -Could Virginians themselves boast that their own Government was based on -justice? "Can we pretend to the enjoyment of political freedom or -security, when we are told that a man has been, by an act of Assembly, -struck out of existence without a trial by jury, without examination, -without being confronted with his accusers and witnesses, without the -benefits of the law of the land?"[1245] Skillfully he turned against -Henry the latter's excuse for the execution of Philips, and dramatically -asked: "Where is our safety, when we are told that this act was -justifiable because the person was not a Socrates?... Shall it be a -maxim that a man shall be deprived of his life without the benefit of -the law?" - -As to the navigation of the Mississippi, he asked: "How shall we retain -it? By retaining that weak government which has hitherto kept it from -us?" No, exclaimed Marshall, but by a Government with "the power of -retaining it." Such a Government, he pointed out, was that proposed in -the Constitution. Here again the Constitutionalist managers displayed -their skill. Marshall was the best man they could have chosen to appeal -to the Kentucky members on the Mississippi question. His father, mother, -and his family were now living in Kentucky, and his relative, Humphrey -Marshall, was a member of the Convention from that district.[1246] -Marshall himself was the legislative agent of the District of Kentucky -in Richmond. The development of the West became a vital purpose with -John Marshall, strengthening with the years; and this was a real force -in the growth of his views on Nationality.[1247] - -Henry's own argument, that amendments could not be had after adoption, -proved, said Marshall, that they could not be had before. In all the -States, particularly in Virginia, there were, he charged, "many who are -decided enemies of the Union." These were inspired by "local interests," -their object being "disunion." They would not propose amendments that -were similar or that all could agree upon. When the Federal Convention -met, said Marshall, "we had no idea then of any particular system. The -formation of the most perfect plan was our object and wish"; and, "it -was imagined" that the States would with pleasure accept that -Convention's work. But "consider the violence of opinions, the -prejudices and animosities which have been since imbibed"; and how -greatly they "operate against mutual concessions." - -Marshall reiterated that what the Constitutionalists were fighting for -was "a well-regulated democracy." Could the people themselves make -treaties, enact laws, or administer the Government? Of course not. They -must do such things through agents. And, inquired he, how could these -agents act for the people if they did not have power to do so? That the -people's agents might abuse power was no argument against giving it, for -"the power of doing good is inseparable from that of doing some evil." -If power were not given because it might be misused, "you can have no -government." Thus Marshall stated that principle which he was to -magnify from the Supreme Bench years later. - -"Happy that country," exclaimed the young orator, "which can avail -itself of the misfortunes of others ... without fatal experience!" -Marshall cited Holland. The woes of that country were caused, said he, -by "the want of proper powers in the government, the consequent deranged -and relaxed administration, the violence of contending parties"--in -short, by such a government, or rather absence of government, as America -then had under the Confederation. If Holland had had such a government -as the Constitution proposed, she would not be in her present sorry -plight. Marshall was amused at Henry's "high-colored eulogium on such a -government." - -There was no analogy, argued he, between "the British government and the -colonies, and the relation between Congress and the states. We _were -not_ represented in Parliament. Here [under the Constitution] we are -represented." So the arguments against British taxation "do not hold -against the exercise of taxation by Congress." The power of taxation by -Congress to which Henry objected was "essentially necessary; for without -it there will be no efficiency in the government." That requisitions on -the States could not be depended on had been demonstrated by experience, -he declared; the power of direct taxation was, therefore, necessary to -the very existence of the National Government. - -"The possibility of its being abused is urged as an argument against -its expediency"; but, said Marshall, such arguments would prevent all -government and result in anarchy. "All delegated powers are liable to be -abused." The question was, whether the taxing power was "necessary to -perform the objects of the Constitution?... What are the objects of -national government? To protect the United States, and to promote the -general welfare. Protection, in time of war, is one of its principal -objects. Until mankind shall cease to have ambition and avarice, wars -will arise." - -Experience had shown, said Marshall, that one State could not protect -the people or promote general welfare. "By the national government only" -could these things be done; "shall we refuse to give it power to do -them?" He scorned the assertion "that we need not be afraid of war. Look -at history," he exclaimed, "look at the great volume of human nature. -They will foretell you that a defenseless country cannot be secure. The -nature of men forbids us to conclude that we are in no danger from war. -The passions of men stimulate them to avail themselves of the weakness -of others. The powers of Europe are jealous of us. It is our interest to -watch their conduct and guard against them. They must be pleased with -our disunion. If we invite them by our weakness to attack us, will they -not do it? If we add debility to our present situation, a partition of -America may take place." - -The power of National taxation, therefore, was necessary, Marshall -asserted. "There must be men and money to protect us. How are armies to -be raised? Must we not have money for that purpose?" If so, "it is, -then, necessary to give the government that power in time of peace, -which the necessity of war will render indispensable, or else we shall -be attacked unprepared." History, human nature, and "our own particular -experience, will confirm this truth." If danger should come upon us -without power to meet it, we might resort to a dictatorship; we once -were on the point of doing that very thing, said he--and even Henry and -Mason did not question this appeal of Marshall to the common knowledge -of all members of the Convention. - -"Were those who are now friends to this Constitution less active in the -defense of liberty, on that trying occasion, than those who oppose it?" -scathingly asked Marshall. "We may now ... frame a plan that will enable -us to repel attacks, and render a recurrence to dangerous expedients -unnecessary. If we be prepared to defend ourselves, there will be little -inducement to attack us. But if we defer giving the necessary power to -the general government till the moment of danger arrives, we shall give -it then, and with an _unsparing hand_." - -It was not true, asserted Marshall, that the Confederation carried us -through the Revolution; "had not the enthusiasm of liberty inspired us -with unanimity, that system would never have carried us through it." The -war would have been won much sooner "had that government been possessed -of due energy." The weakness of the Confederation and the conduct of the -States prolonged the war. Only "the extreme readiness of the people to -make their utmost exertions to ward off solely the pressing danger, -supplied the place of requisitions." But when this danger was over, the -requisition plan was no longer effective. "A bare sense of duty," said -he, "is too feeble to induce men to comply with obligations." - -It was plain, then, Marshall pointed out, that "the government must have -the sinews of war some other way." That way was by direct taxation which -would supply "the necessities of government ... in a peaceable manner"; -whereas "requisitions cannot be rendered efficient without a civil war." - -What good would it do for Congress merely to remonstrate with the -States, as Henry had proposed, if we were at war with foreign enemies? -There was no danger that Congress, under the Constitution, would not lay -taxes justly, asserted Marshall; for if members of Congress laid unjust -taxes, the people would not reëlect them. Under the Constitution, they -were chosen by the same voters who elected members of the State -Legislature. These voters, said he, "have nothing to direct them in the -choice but their own good." Men thus elected would not abuse their power -because that would "militate against their own interest.... To procure -their reelection, it will be necessary for them to confer with the -people at large, and convince them that the taxes laid are for their own -good." - -Henry had asked whether the adoption of the Constitution "would pay our -debts." "It will compel the states to pay their quotas," answered -Marshall. "Without this, Virginia will be unable to pay. Unless all the -states pay, she cannot.... Economy and industry are essential to our -happiness"; but the Confederation "takes away the incitements to -industry, by rendering property insecure and unprotected." The -Constitution, on the contrary, "will promote and encourage industry." - -The statement of the Anti-Constitutionalists that the extent of the -country was too great for a strong National Government was untrue, -argued Marshall. Also, said he, this objection was from writers who -criticized those governments "where representation did not exist." But, -under the Constitution, representation would exist. - -Answering Henry's objection, that there were no effective checks in the -Constitution, Marshall inquired, "What has become of his enthusiastic -eulogium on the American spirit?" There, declared Marshall, was the real -check and control. "In this country, there is no exclusive personal -stock of interest. The interest of the community is blended and -inseparably connected with that of the individual. When he promotes his -own, he promotes that of the community. When we consult the common good, -we consult our own." In such considerations were found the greatest -security from an improper exercise of power. - -"Is not liberty secure with us, where the people hold all powers -in their own hands, and delegate them cautiously, for short -periods, to their servants, who are accountable for the smallest -mal-administration?... We are threatened with the loss of our liberties -by the possible abuse of power, notwithstanding the maxim that those who -give may take away. It is the people that give power, and can take it -back. What shall restrain them? They are the masters who give it, and of -whom their servants hold it." - -Returning to the subject of amendments, "what," asked Marshall, "shall -restrain you from amending it, if, in trying it, amendments shall be -found necessary.... When experience shall show us any inconvenience, we -can then correct it.... If it be necessary to change government, let us -change that government which has been found to be defective." The -Constitution as it stood filled the great objects which everybody -desired--"union, safety against foreign enemies, and protection against -faction [party]--against what has been the destruction of all -republics." - -He turned Henry's unhappy praise of the British Constitution into a -weapon of deadly attack upon the opposition. The proposed Constitution, -said Marshall, was far better than the British. "I ask you if your House -of Representatives would be better than it is, if a hundredth part of -the people were to elect a majority of them? If your senators were for -life, would they be more agreeable to you? If your President were not -accountable to you for his conduct,--if it were a constitutional maxim, -that he could do no wrong,--would you be safer than you are now? If you -can answer, Yes, to these questions, then adopt the British -constitution. If not, then, good as that government may be, this -[Constitution] is better." - -Referring to "the confederacies of ancient and modern times" he said -that "they warn us to shun their calamities, and place in our government -those necessary powers, the want of which destroyed them." The ocean -does not protect us from war; "Sir," exclaimed Marshall, "the sea makes -them neighbors to us.... What dangers may we not apprehend to our -commerce! Does not our naval weakness invite an attack on our commerce?" -Henry had said "that our present exigencies are greater than they will -ever be again." But, asked he, "Who can penetrate into futurity?" - -Henry's objection that the National Government, under the Constitution, -would "call forth the virtue and talents of America," to the -disadvantage of the States, was, Marshall said, the best guarantee that -the National Government would be wisely conducted. "Will our most -virtuous and able citizens wantonly attempt to destroy the liberty of -the people? Will the most virtuous act the most wickedly?" On the -contrary, "the virtue and talents of the members of the general -government will tend to the security instead of the destruction of our -liberty.... The power of direct taxation is essential to the existence -of the general government"; if not, the Constitution was unnecessary; -"for it imports not what system we have, unless it have the power of -protecting us in time of war."[1248] - -This address to the Virginia Convention is of historic interest as John -Marshall's first recorded utterance on the Constitution of which he was -to become the greatest interpreter. Also, it is the first report of -Marshall's debating. The speech is not, solely on its merits, -remarkable. It does not equal the logic of Madison, the eloquence of -Randolph or Lee, or the brilliancy of Corbin. It lacks that close -sequence of reasoning which was Marshall's peculiar excellence. In -provoking fashion he breaks from one subject when it has been only -partly discussed and later returns to it. It is rhetorical also and -gives free rein to what was then styled "Marshall's eloquence." - -The warp and woof of Marshall's address was woven from his military -experience; he forged iron arguments from the materials of his own -soldier life. Two thirds of his remarks were about the necessity of -providing against war. But the speech is notable as showing, in their -infancy, those views of government which, in the shaggy strength of -their maturity, were to be so influential on American destiny.[1249] It -also measures the growth of those ideas of government which the camp, -the march, and the battlefield had planted in his mind and heart. The -practical and immediate effect of the speech, which was what the -Constitutionalists, and perhaps Marshall himself, cared most about, was -to strengthen the soldier vote for the Constitution and to cause the -Kentucky members to suspend judgment on the Mississippi question. - -[Illustration: _John Marshall_ - -_From a painting by Martin in the Robe Room of the U. S. Supreme -Court._] - -For the Anti-Constitutionalists there now arose a big-statured old man -"elegantly arrayed in a rich suit of blue and buff, a long queue tied -with a black ribbon dangling from his full locks of snow, and his -long black boots encroaching on his knees."[1250] His ancestors had been -Virginians even before the infant colony had a House of Burgesses. When -Benjamin Harrison now spoke he represented the aristocracy of the Old -Dominion, and he launched all his influence against the Constitution. -For some reason he was laboring "under high excitement," and was almost -inaudible. He lauded the character of the Virginia Legislature, of which -he had been a member. The Constitution, insisted Harrison, "would -operate an infringement of the rights and liberties of the -people."[1251] - -George Nicholas answered at length and with characteristic ability and -learning.[1252] But his speech was quite unnecessary, for what Harrison -had said amounted to nothing. On the morning of the ninth day of the -Convention Madison continued his masterful argument, two sections of -which he already had delivered.[1253] He went out of his way to praise -Marshall, who, said Madison, had "entered into the subject with a great -deal of ability."[1254] - -Mason, replying on taxation, said that under the Constitution there were -"some land holders in this state who will have to pay twenty times as -much [taxes] as will be paid for all the land on which Philadelphia -stands." A National excise tax, he declared, "will carry the exciseman -to every farmer's house, who distills a little brandy where he may -search and ransack as he pleases." And what men, asked Mason, would be -in Congress from Virginia? Most of them would be "chosen ... from the -higher order of the people--from the great, the wealthy--the -_well-born_--the _well-born_, Mr. Chairman, that aristocratic idol--that -flattering idea--that _exotic_ plant which has been lately imported from -the ports of Great Britain, and planted in the luxurious soil of this -country." - -It is significant to find the "well-born," wealthy, learned, and -cultivated Mason taking this tone. It shows that the common people's -dislike of a National Government was so intense that even George Mason -pandered to it. It was the fears, prejudices, and passions of the -multitude upon which the enemies of the Constitution chiefly depended; -and when Mason stooped to appeal to them, the sense of class distinction -must have been extreme. His statement also reveals the economic line of -cleavage between the friends and foes of the Constitution. - -It was in this speech that Mason made his scathing "cat and Tory" -comparison. He knew those who were for the Constitution, "their -connections, their conduct, their political principles, and a number of -other circumstances. There are a great many wise and good men among -them"; but when he looked around and observed "who are the warmest and -most zealous friends to this new government," it made him "think of the -story of the cat transformed to a fine lady: forgetting her -transformation and happening to see a rat, she could not restrain -herself, but sprang upon it out of the chair."[1255] - -Mason denounced Randolph for the latter's apostasy. "I know," said -Mason, "that he once saw as great danger in it as I do. What has -happened since this to alter his opinion?" Of course, the Confederation -was defective and reform needed; but the Constitution was no reform. -Without previous amendments, "we never can accede to it. Our duty to God -and to our posterity forbids it,"[1256] declared the venerable author of -Virginia's Bill of Rights and the Constitution of the State. - -Henry Lee answered with fire and spirit, first rebuking "the irregular -and disorderly manner" in which the opposition had carried on the -debate. As to the cat story, Mason ought to know "that ridicule is not -the test of truth. Does he imagine that he who can raise the loudest -laugh is the soundest reasoner?" And Mason's "insinuations" about the -"well-born" being elected to Congress were "unwarrantable." He hoped -that "we shall hear no more of such groundless aspersions." Lee's speech -is valuable only as showing the rising spirit of anger which was -beginning to appear even in Virginia's well-conducted, parliamentary, -and courteous debate.[1257] - -The Anti-Constitutionalists were now bringing all their guns into -action. The second Revolutionary soldier to speak for the opposition now -arose. William Grayson was almost as attractive a military figure as -Henry Lee himself. He had been educated at Oxford, had studied law in -the Inner Temple; and his style of speech was the polished result of -practice in the English political clubs, in Congress, and at the -bar.[1258] There were few men in America with more richly stored or -better trained minds. He was a precise Latinist and a caustic wit. When, -during the debate, some of the Constitutionalist speakers used Latin -phrases with a wrong pronunciation, Grayson, _sotto voce_, would correct -them. Once he remarked, loud enough to be heard by the other members -whom he set roaring with laughter, that he was not surprised that men -who were about to vote away the liberties of a living people should take -such liberties with a dead language. - -Grayson now brought into action the heaviest battery the -Anti-Constitutionalists had in reserve. He did not blame Virginia's -delegates to the Federal Convention, said Grayson suavely. It was -unfortunate "that they did not do more for the general good of -America"; but "I do not criminate or suspect the principles on which -they acted." Of course, the Confederation had defects; but these were -"inseparable from the nature of such [Republican] governments." The -Constitutionalists had conjured up "phantoms and ideal dangers to lead -us into measures which will ... be the ruin of our country." He argued -that we were in no danger from our default in paying foreign loans; for -most European nations were friendly. "Loans from nations are not like -loans from private men. Nations lend money ... to one another from views -of national interest. France was willing to pluck the fairest feather -out of the British crown. This was her hope in aiding us"--a truth -evident to every man in the Convention. Such loans were habitually -delayed,--for instance, "the money which the Dutch borrowed of Henry IV -is not yet paid"; these same Dutch "passed Queen Elizabeth's loan at a -very considerable discount," and they "made their own terms with that -contemptible monarch," James I. - -The people had no idea, asserted Grayson, that the Federal Convention -would do more than to give the National Government power to levy a five -per cent tariff, but since then "horrors have been greatly magnified." -He ridiculed Randolph's prophecy of war and calamity. According to -Randolph, "we shall be ruined and disunited forever, unless we adopt -this Constitution. Pennsylvania and Maryland are to fall upon us from -the north, like the Goths and Vandals of old; the Algerines, whose -flat-sided vessels never came farther than Madeira, are to fill the -Chesapeake with mighty fleets, and to attack us on our front; the -Indians are to invade us with numerous armies on our rear, in order to -convert our cleared lands into hunting-grounds; and the Carolinians, -from the South (mounted on alligators, I presume), are to come and -destroy our cornfields, and eat up our little children! These, -sir, are the mighty dangers which await us if we reject [the -Constitution]--dangers which are merely imaginary, and ludicrous -in the extreme!" - -At bottom, thought Grayson, the controversy was between two -opinions--"the one that mankind can only be governed by force; the other -that they are capable" of governing themselves. Under the second theory, -which Grayson favored, all that was necessary was to "give congress the -regulation of commerce" and to "infuse new strength and spirit into the -state governments." - -This, he remarked, was the proper course to pursue and to maintain "till -the American character be marked with some certain features. We are yet -too young to know what we are fit for." If this was not to be done and -we must have a government by force, then Grayson "would have a President -for life, choosing his successor at the same time; a Senate for life, -with the powers of the House of Lords; and a triennial House of -Representatives, with the powers of the House of Commons in -England."[1259] Consider the Judiciary. Suppose a man seized at the same -time under processes from Federal and State Courts: "Would they divide -the man in two, as Solomon directed the child to be divided who was -claimed by two women?" - -Evidently Grayson was making a strong impression as the day grew to a -close, for Monroe, seconded by Henry, moved that the Convention adjourn -that Grayson might go on next day; and Madison, plainly nervous, -"insisted on going through the business regularly, according to the -resolution of the house." Grayson consumed most of the next forenoon, -displaying great learning, but sometimes drawing the most grotesque -conclusions. For example, he said that Congress might grant such -privileges that "the whole commerce of the United States may be -exclusively carried on by merchants residing within the seat of -government [now the District of Columbia] and those places of arms which -may be purchased of the state legislature." The Constitution did not -give equality of representation; for "the members of Delaware will -assist in laying a tax on our slaves, of which they will pay no part -whatever." In general, Grayson's conclusion was that "we have asked for -bread and they have given us a stone."[1260] - -Pendleton answered. Henry's treatment of Randolph's unhappy reference to -the people as a "herd" seems to have had some effect; for Pendleton -regretted its use and tried to explain it away. Henry and he differed -"at the threshold" on government. "I think government necessary to -protect liberty.... Licentiousness" was "the natural offspring of -liberty"; and "therefore, all free governments should endeavor to -suppress it, or else it will ultimately overthrow that liberty of which -it is the result." Henry "professes himself an advocate for the middling -and lower classes of men, I profess to be a friend to the equal liberty -of all men, from the palace to the cottage." - -The appeal to class hatred, said Pendleton, had been made by the -opposition exclusively; the Constitutionalists knew no distinction among -men except that of good and bad men. Why did the opposition make "the -distinction of _well-born_ from others?... Whether a man be great or -small, he is equally dear to me." He wished "for a regular government in -order to secure and protect ... honest citizens ... the industrious -farmer and planter." The purpose of the proposed National Government was -to cherish and protect industry and property. Pendleton spoke at great -length, but frequently his voice was so feeble that he could not be -understood or reported.[1261] - -Madison followed with the fourth section of what might properly be -called his treatise on government. Henry replied, striking again the -master chord of the people's fears--that of a National Government as -something alien. "The tyranny of Philadelphia may be like the tyranny of -George III." That the Constitution must be amended "re-echoed from every -part of the continent"; but that could not be done "if we ratify -unconditionally." Henry remade his old points with his consummate art. - -He mentioned a new subject, however, of such high practical importance -that it is astonishing that he had not advanced it at the beginning and -driven it home persistently. "There are," he said, "thousands and -thousands of contracts, whereof equity forbids an exact literal -performance.... Pass that government [the Constitution] and you will be -bound hand and foot.... An immense quantity of depreciated Continental -paper money ... is in the hands of individuals to this day. The holders -of this money may call for the nominal value, if this government be -adopted. This State may be compelled to pay her proportion of that -currency, pound for pound. Pass this government and you will be carried -to the federal court ... and you will be compelled to pay, shilling for -shilling." - -Returning to this point later on, Henry said: "Some of the states owe a -great deal on account of paper money; others very little. Some of the -Northern States have collected and barrelled up paper money. Virginia -has sent thither her cash long ago. There is little or none of the -Continental paper money retained in this State. Is it not their business -to appreciate this money? Yes, and it will be your business to prevent -it. But there will be a majority [in Congress] against you and you will -be obliged to pay your share of this money, in its nominal value."[1262] - -Referring to Pendleton's assertion that the State Court had declared -void legislative acts which violated the State Constitution, Henry -exclaimed: "Yes, sir, our judges opposed the acts of the legislature. -We have this landmark to guide us. They had the fortitude to declare -that they were the judiciary and would oppose unconstitutional acts. Are -you sure your federal judiciary will act thus? Is that judiciary as well -constructed, and as independent of the other branches, as our state -judiciary? Where are your landmarks in this government? I will be bold -to say you cannot find any in it. I take it as the highest encomium on -this country [Virginia] that the acts of the legislature, if -unconstitutional, are liable to be opposed by the judiciary."[1263] - -As usual, Henry ended with a fearsome picture and prophecy, this time of -the danger to and destruction of Southern interests at the hands of the -Northern majority. This, said he, "is a picture so horrid, so wretched, -so dreadful, that I need no longer dwell upon it"; and he "dreaded the -most iniquitous speculation and stock-jobbing, from the operation of -such a system" as the Constitution provided.[1264] Madison replied--the -first spontaneous part he had taken in the debate.[1265] - -The next morning the opposition centered their fire on the Mississippi -question. Henry again demanded that the members of the Convention who -had been in Congress should tell what had been done.[1266] The members -of Congress--Lee, Monroe, Grayson, and Madison--then gave their -versions of the Jay-Gardoqui transaction.[1267] - -The Constitutionalists rightly felt that "the whole scene has been -conjured by Henry to affect the ruin of the new Constitution,"[1268] and -that seasoned gladiator now confirmed their fears. He astutely threw the -blame on Madison and answered the charge of the Constitutionalists that -"we [the opposition] are scuffling for Kentucky votes and attending to -local circumstances." With all of his address and power, Henry bore down -upon the Mississippi question. Thus he appealed for Kentucky votes: -"Shall we appear to care less for their interests than for that of -distant people [the Spaniards]?" - -At Henry's word a vision rose before all eyes of the great American -valley sustaining "a mighty population," farms, villages, towns, cities, -colleges, churches, happiness, prosperity; and "the Mississippi covered -with ships laden with foreign and domestic wealth"--a vision of a -splendid West "the strength, the pride, and the flower of the -Confederacy." And then quickly succeeded on the screen the picture of -the deserted settlers, the West a wilderness, the Father of Waters -flowing idly to the sea, unused by commerce, unadorned by the argosies -of trade. Such, said he, would be the Mississippi under the Constitution -"controlled by those who had no interest in its welfare."[1269] - -At last the Constitutionalists were stunned. For a while no one spoke. -Pendleton, "his right hand grasping his crutch, sat silent and -amazed."[1270] Nicholas, the dauntless, was first to recover himself, -and repeated Marshall's argument on the Mississippi question. Evidently -the opposition had lobbied effectively with the Kentucky members on that -sore point; for, exclaimed Nicholas, "we have been alarmed about the -loss of the Mississippi, in and _out_ of doors."[1271] - -The Constitutionalists strove mightily to break the force of Henry's -_coup_ on the Kentucky delegates. He had "seen so many attempts made," -exclaimed Randolph, "and so many wrong inducements offered to influence -the delegation from Kentucky," that he must speak his mind about -it.[1272] Corbin called the Mississippi trick "reprehensible." And well -might the Constitutionalists tremble; for in spite of all they could do, -ten out of fourteen of the Kentucky delegates voted against ratifying -the Constitution. - -That night Pendleton fell ill and John Tyler, "one of the staunchest -opponents of the new Constitution," was elected Vice-President.[1273] -The Mississippi question was dropped for the moment; the -Constitutionalists rallied and carried Corbin's motion to debate the new -Government clause by clause in accordance with the original resolution. -Several sections of the first article were read and debated, Henry, -Mason, and Grayson for the opposition; Madison bearing the burden of the -debate for the Constitutionalists. - -The rich man and the poor, the State Government a thing of the "people" -and the National Government something apart from the "people," were -woven throughout the Anti-Constitutionalists' assaults. "Where," -exclaimed Henry, "are the purse and the sword of Virginia? They must go -to Congress. What has become of your country? The Virginian government -is but a name.... We are to be consolidated."[1274] - -The second week's debate closed with the advantage on the side of the -opposition. Gouverneur Morris, the New York Constitutionalist, who, -still on the ground, was watching the fight in Richmond and undoubtedly -advising the Virginia Constitutionalists, reported to Hamilton in New -York that "matters are not going so well in this State as the Friends of -America could wish." The Anti-Constitutionalists had been making -headway, not only through Henry's tremendous oratory, but also by other -means; and the Constitutionalists acknowledged that their own arguments -in debate were having little or no effect. - -"If, indeed, the Debates in Convention were alone attended to," wrote -Gouverneur Morris, "a contrary Inference would be drawn for altho M^r. -Henry is most warm and powerful in Declamation being perfectly Master of -'Action Utterrance and Power of Speech to stir Men's Blood' yet the -Weight of Argument is so strong on the Side of Truth as wholly to -destroy even on weak Minds the Effects of his Eloquence. But there are -as you well know certain dark Modes of operating on the Minds of Members -which like contagious Diseases are only known by their Effects on the -Frame and unfortunately our moral like our phisical Doctors are often -mistaken in their Judgment from Diagnostics. Be of good Chear. My -Religion steps in where my Understanding falters and I feel Faith as I -loose Confidence. Things will yet go right but when and how I dare not -predicate. So much for this dull Subject."[1275] - -"We have conjectured for some days," Madison advised Hamilton, "that the -policy is to spin out the Session in order to receive overtures from -your [New York's] Convention: or if that cannot be, to weary the members -into a adjournment without taking any decision. It [is] presumed at the -same time that they do not despair of carrying the point of previous -amendments which is preferable game. The parties continue to be nearly -balanced. If we have a majority at all, it does not exceed three or -four. If we lose it Kentucke will be the cause; they are generally if -not unanimously against us."[1276] - -On the back of Madison's letter, Henry Lee wrote one of his own to the -New York Constitutionalist chieftain. "We possess as yet," said Lee, "in -defiance of great exertions a majority, but very small indeed. A -correspondence has certainly been opened thro a Mr. O.[swald] of -Philad^a from the Malcontents of B. & N. Y. to us--it has its operation, -but I believe we are still safe, unless the question of adjournment -should be introduced, & love of home may induce some of our friends to -abandon their principles."[1277] - -"The business is in the most ticklish state that can be imagined," -Madison informed Washington; "the majority will certainly be very small -on whatever side it may finally lie; and I dare not encourage much -expectation that it will be on the favorable side. Oswald of Philad^a -has been here with letters for the anti-Federal leaders from N. York and -probably Philad^a. He Staid a very short time here during which he was -occasionally closeted with H----y M--s--n &c."[1278] - -On Monday the Anti-Constitutionalists were first in the field. They were -by now displaying improved tactics. Henry opened on the dangers of a -standing army. "If Congress shall say that the general welfare requires -it, they may keep armies continually on foot.... They may billet them on -the people at pleasure." This is "a most dangerous power! Its principles -are despotic."[1279] Madison followed,[1280] and Mason, Corbin, and -Grayson also spoke,[1281] the latter asserting that, under the -Constitution, the States could not "command the militia" unless by -implication. - -Here Marshall again took part in the debate.[1282] He asked whether -Grayson was serious in stating that the Constitution left no power in -the States over the militia unless by implication. Under the -Constitution, State and National Governments "each derived its powers -from the people, and each was to act according to the powers given it." -Were "powers not given retained by implication?" asked Marshall. Was -"this power [over the militia] not retained by the states, as they had -not given it away?" - -It is true, he admitted, that "Congress may call forth the militia" for -National purposes--"as to suppress insurrections and repel invasions"; -but the power given the States by the people "is not taken away, for the -Constitution does not say so." The power of Congress over the ten miles -square where the National Capital was to be located is "exclusive ... -because it is expressed [in the Constitution] to be exclusive." Marshall -contended that any power given Congress which before was in the States -remained in both unless the Constitution said otherwise or unless there -was incompatibility in its exercise. So the States would have the same -control over the militia as formerly. "When invaded or in imminent -danger they [the States] can engage in war." - -Grayson had said, declared Marshall, that if the National Government -disciplined the militia, "they will form an aristocratic government, -unsafe and unfit to be trusted." Grayson interrupted Marshall in an -unsuccessful attempt to squirm out of the position in which the latter -had placed him. He had only said that in its military features the -Constitution "was so constructed as to form a great aristocratic body." - -Marshall retorted that "as the government was drawn from the people, the -feelings and interests of the people would be attended to"; and, -therefore, there would be no military aristocracy. "When the government -is drawn from the people and depending on the people for its -continuance, oppressive measures will not be attempted," argued -Marshall, "as they will certainly draw on their authors the resentment -of those on whom they depend." No! cried he: "On this government, thus -depending on ourselves for its existence, I will rest my safety." - -Again Marshall expressed his military experience and instincts. If war -should come "what government is able to protect you?" he asked. "Will -any state depend on its own exertions?" No! If the National Government -is not given the power "state will fall after state and be a sacrifice -to the want of power in the general government." Uttering the motto of -American Nationalism, which, long years afterward, he declared to have -been the ruling maxim of his entire life, Marshall cried, "_United we -are strong, divided we fall._" If the National militia cannot "draw the -militia of one state to another ... every state must depend upon -itself.... It requires a superintending power, ... to call forth the -resources of all to protect all." - -Replying to Grayson's assertion that "a general regulation [of the -militia] may be made to inflict punishments," Marshall asked whether -Grayson imagined that a militia law would be "incapable of being -changed?" Grayson's idea "supposes that men renounce their own -interests." And "if Congress neglect our militia, we can arm them -ourselves. Cannot Virginia import arms ... [and] put them into the hands -of her militia men?" Marshall summed up with the statement that the -States derived no powers from the Constitution "but retained them, -though not acknowledged in any part of it."[1283] - -Marshall's speech must have been better than anything indicated in the -stenographer's report; for the resourceful Grayson was moved to answer -it at once[1284] and even Henry felt called upon to reply to it.[1285] -Henry was very fond of Marshall; and this affection of the mature -statesman for the rising young lawyer saved the latter in a furious -political contest ten years afterwards.[1286] The debate was continued -by Madison, Mason, Nicholas, Lee, Pendleton, and finally ended in a -desultory conversation,[1287] but nothing important or notable was said -in this phase of the debate. One statement, however, coming as it did -from Mason, flashes a side-light on the prevailing feeling that the -proposed National Government was something apart from the people. Mason -saw the most frightful dangers from the unlimited power of Congress over -the ten miles square provided for the National Capital. - -"This ten miles square," cried Mason, "may set at defiance the laws of -the surrounding states, and may, like the custom of the superstitious -days of our ancestors, become the sanctuary of the blackest crimes. Here -the Federal Courts are to sit.... What sort of a jury shall we have -within the ten miles square?" asked Mason, and himself answered, "The -immediate creatures of the government. What chance will poor men get?... -If an attempt should be made to establish tyranny over the people, here -are ten miles square where the greatest offender may meet protection. If -any of the officers or creatures [of the National Government] should -attempt to oppress the people or should actually perpetrate the blackest -deed, he has nothing to do but to get into the ten miles square."[1288] - -The debate then turned upon amending the Constitution by a Bill of -Rights, the Constitutionalists asserting that such an amendment was not -necessary, and the opposition that it was absolutely essential. The -question was "whether rights not given up were reserved?" Henry, as -usual, was vivid. He thought that, without a Bill of Rights, "excisemen -may come in multitudes ... go into your cellars and rooms, and search, -and ransack, and measure, everything you eat, drink, and wear." And the -common law! The Constitution did not guarantee its preservation. -"Congress may introduce the practice of the civil law, in preference to -that of the common law; ... the practice of ... torturing, to extort a -confession of the crime.... We are then lost and undone."[1289] - -The slavery question next got attention, Mason, Madison, Tyler, Henry, -and Nicholas continuing the discussion.[1290] Under the first clause of -the tenth section of article one, Henry again brought up the payment of -the Continental debt. "He asked gentlemen who had been high in -authority, whether there were not some state speculations on this -matter. He had been informed that some states had acquired vast -quantities of that money, which they would be able to recover in its -nominal value of the other states." Mason said "that he had been -informed that some states had speculated most enormously in this matter. -Many individuals had speculated so as to make great fortunes on the ruin -of their fellow-citizens." Madison in reply assured the Convention that -the Constitution itself placed the whole subject exactly where it was -under the Confederation; therefore, said he, it is "immaterial who holds -those great quantities of paper money,... or at what value they -acquired it."[1291] To this extent only was the point raised which -became most vital when the National Government was established and under -way.[1292] - -Madison's point, said Mason, was good as far as it went; but, under the -Confederation, Congress could discharge the Continental money "at its -depreciated value," which had gone down "to a thousand for one." But -under the Constitution "we must pay it shilling for shilling or at least -at the rate of one for forty"; which would take "the last particle of -our property.... We may be taxed for centuries, to give advantage to a -few particular states in the Union and a number of rapacious -speculators." Henry then turned Madison's point that "the new -Constitution would place us in the same situation with the old"; for -Henry saw "clearly" that "this paper money must be discharged shilling -for shilling."[1293] Then Henry brought up the scarecrow of the British -debts, which had more to do with the opposition to the Constitution in -Virginia[1294] than any other specific subject, excepting, perhaps, the -threatened loss of the Mississippi and the supreme objection that a -National Government would destroy the States and endanger "liberty." - -The opposition had now come to the point where they were fighting the -separate provisions of the Constitution one by one. When the first -section of the second article, concerning the Executive Department, was -reached, the opposition felt themselves on safe ground. The Constitution -here sapped the "great fundamental principle of responsibility in -republicanism," according to Mason.[1295] Grayson wanted to know how the -President would be punished if he abused his power. "Will you call him -before the Senate? They are his counsellors and partners in -crime."[1296] - -The treaty-making power, the command of the army, the method of electing -the President, the failure of the Constitution to provide for his -rotation in office, all were, to the alarmed Anti-Constitutionalists, -the chains and shackles of certain and inevitable despotism. The simple -fears of the unlettered men who sullenly had fought the Constitution in -the Massachusetts Convention were stated and urged throughout the great -debate in Virginia by some of her ablest and most learned sons. Madison -was at his best in his exposition of the treaty-making power. But if the -debate on the Executive Department had any effect whatever in getting -votes for or against the Constitution, the advantage was with the -enemies of the proposed new Government. - -Grayson wrote to Dane: "I think we got a Vote by debating the powers of -the President. This, you will observe, is confidential." But this was -cold comfort, for, he added, "our affairs ... are in the most ticklish -situation. We have got ten out of thirteen of the Kentucke members but -we wanted the whole: & I don't know that we have got one yet of the four -upper counties: this is an important point & which both sides are -contending for by every means in their power. I believe it is absolutely -certain that we have got 80 votes on our side which are inflexible & -that eight persons are fluctuating & undecided."[1297] - - -FOOTNOTES: - -[1216] "I am to acknowledge yours of the 19th of May, which reached me a -few days since." (Gouverneur Morris from Richmond, June 13, 1788, to -Hamilton in New York; Hamilton MSS., Lib. Cong.) - -[1217] Robert Morris to Horatio Gates, Richmond, June 12, 1788; MS., -N.Y. Pub. Lib. "James [Wilson] the Caladonian, Leut. Gen. of the -myrmidons of power, under Robert [Morris] the cofferer, who with his -aid-de-camp, _Gouvero_ [Gouverneur] the cunning man, has taken the field -in Virginia." (_Centinel_, no. 10, Jan. 12, 1788; reprinted in McMaster -and Stone, 631.) - -Robert Morris was in Richmond, March 21, 1788. (Morris to _Independent -Gazetteer_ on that date; _ib._, 787, denying the charge that paper had -made against him. See _supra_, chap. X.) He was in Richmond in May and -paid John Marshall four pounds, four shillings as a "retainer." (Account -Book, May 2, 1788.) He had heavy business interests in Virginia; see -Braxton _vs._ Willing, Morris & Co. (4 Call, 288). Marshall was his -lawyer. - -[1218] Morris to Gates, June 12, 1788, _supra_. Morris's remark about -depredations on his purse may or may not refer to the work of the -Convention. He was always talking in this vein about his expenses; he -had lost money in his Virginia business ventures; and, having his family -with him, may, for that reason, have found his Southern trip expensive. -My own belief is that no money was used to get votes; for Henry, Mason, -and Grayson surely would have heard of and, if so, denounced such an -attempt. - -[1219] Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong. - -[1220] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311. - -[1221] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311. - -[1222] Grigsby, i, 149-50. - -[1223] The new tavern at Richmond--competitor of Formicola's inn. - -[1224] Grigsby, i, 151. - -[1225] Kentucky had fourteen members. On the final vote, the -Constitution was ratified by a majority of only 10 out of 168 members -present and voting. At the opening of the Convention, Grayson said that -"the district of Kentucke is with us, and if we can get all of the four -Counties, which lye on the Ohio between the Pennsylv^y line and Big -Sandy Creek, the day is our own." (Grayson to Dane, June 4, 1788; Dane -MSS., Lib. Cong.) The Constitutionalists finally succeeded in getting -four of these Kentucky votes. - -[1226] The Jay-Gardoqui agreement. - -[1227] Jefferson to Donald, Feb. 7, 1788; Jefferson's _Writings_: -Washington, ii, 355; and see Monroe to Jefferson, July 12, 1788; -_Writings_: Hamilton, i, 186-87. - -[1228] Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a -very animated manner expatiated on the evil and pernicious tendency of -keeping secret the common proceedings of government." (_Ib._, 170.) - -[1229] Grigsby, i, footnote to 157. - -[1230] Elliott, iii, 150-76. - -[1231] Lee, while pretending to praise the militia, really condemned it -severely; and cited the militia's panic and flight at Guilford -Court-House, which lost the battle to the Americans. "Had the line been -supported that day," said he, "Cornwallis, instead of surrendering at -Yorktown, would have laid down his arms at Guilford." (Elliott, iii, -178.) - -[1232] Randolph's letter explaining why he had refused to sign the -Constitution. - -[1233] This was the only quarrel of the Convention which threatened -serious results. A duel was narrowly averted. Colonel William Cabell, as -Henry's friend, called on Randolph that night; but matters were arranged -and the tense situation relieved when it was learned, next morning, that -no duel would take place. (Grigsby, i, 162-65.) - -[1234] Elliott, iii, 187-207. - -[1235] Grigsby, i, 167-68. - -[1236] Elliott, iii, 207-22. - -[1237] "When any other member spoke, the members of the audience would, -in half an hour, be going out or moving from their seats." (Winston to -Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two -days' debate, except five; and often spoke several times a day. (_Ib._, -350.) - -[1238] Grigsby, i, 176. - -[1239] Marshall's Account Book. The entry is: "[June] 2 Paid for coat -for self 1." Two months earlier Marshall paid "for Nankin for breeches -for self 1.16." (_Ib._, April 1, 1788.) Yet about the same time he spent -one pound, nine shillings at a "barbecue." - -[1240] Grigsby, i, 176. - -[1241] Marshall had provided for entertaining during the Convention. His -Account Book shows the following entry on May 8, 1788: "Paid McDonald -for wine 20" (pounds); and "bottles 9/" (shillings). This was the -largest quantity of wine Marshall had purchased up to that time. - -[1242] Marshall's reputation for "eloquence" grew, as we shall see, -until his monumental work on the Supreme Bench overshadowed his fame as -a public speaker. - -[1243] Elliott, iii, 222. - -[1244] Marshall's idea was that government should be honest and -efficient; a government by the people, whether good or bad, as a method -of popular self-development and progress did not appeal to him as much -as excellence in government. - -[1245] Marshall here referred to the case of Josiah Philips, and fell -into the same error as had Randolph, Henry, and others. (See _supra_, -393, footnote 1.) - -[1246] Humphrey Marshall, i, 254. Humphrey Marshall finally voted for -the Constitution, against the wishes of his constituents. (Scott, -135-38.) - -[1247] See vol. III of this work. - -[1248] See entire speech in Elliott, iii, 223-36. - -[1249] Some of the sentences used in this unprepared speech are similar -to those found in the greatest of his opinions as Chief Justice. (See -vol. III of this work.) - -[1250] Grigsby, i, 183-85. - -[1251] Elliott, iii, 236. - -[1252] _Ib._, 236-47. - -[1253] _Ib._, 247-62. - -[1254] _Ib._, 254. - -[1255] This caustic reference was to the members of the Convention who -had been Tories. (Grigsby, i, 193; Elliott, iii, 269; also Rowland, ii, -240.) As we have seen most of the Tories and Revolutionary soldiers were -united for the Constitution. These former enemies were brought together -by a common desire for a strong National Government. - -[1256] Elliott, iii, 262-72. - -[1257] _Ib._, 272-73. - -[1258] Grigsby, i, 194-205. William Grayson was one of the strongest men -in Virginia. He became Virginia's first Senator under the Constitution. -(See _infra_, vol. II, chap. II.) He filled and satisfied the public eye -of his day as a soldier, scholar, and statesman. And yet he has dropped -out of history almost completely. He is one of those rare personalities -whom the whims of time and events have so obscured that they are to be -seen but dimly through the mists. His character and mind can be measured -but vaguely by fragments buried in neglected pages. William Grayson's -talents, work, and vanished fame remind one of the fine ability, and all -but forgotten career of Sir James Mackintosh. - -[1259] Elliott, iii, 279. - -[1260] Elliott, iii, 273-93 (especial passage, 280). - -[1261] Elliott, iii, 293-305. - -[1262] Elliott, iii, 319-22; and see chap. II, vol. II, of this work. -Although this, like other economic phases of the contest, was of -immediate, practical and serious concern to the people, Henry touched -upon it only twice thereafter and each time but briefly; and Mason -mentioned it only once. This fact is another proof of the small place -which this grave part of the economic problem occupied in the minds of -the foes of the Constitution, in comparison with that of "liberty" as -endangered by a strong National Government. - -[1263] Elliott, iii, 325. At this time the fears of the -Anti-Constitutionalists were principally that the powers given the -National Government would "swallow up" the State Governments; and it was -not until long afterward that objection was made to the right and power -of the National Supreme Court to declare a law of Congress -unconstitutional. (See vol. III of this work.) - -[1264] _Ib._, 313-28. - -[1265] _Ib._, 328-32. - -[1266] _Ib._, 332-33. - -[1267] Elliott, iii, 333-51. - -[1268] Grigsby, i, 230 and 243. - -[1269] _Ib._, 245; Elliott, iii, 251-56. This, the real vote-getting -part of Henry's speech, is not reported by Robertson. - -[1270] Grigsby, i, 245. - -[1271] Elliott, iii, 356. - -[1272] _Ib._, 361-65. - -[1273] Grigsby, i, 248. - -[1274] Elliott, iii, 366-410. - -[1275] Gouverneur Morris from Richmond to Hamilton in New York, June 13, -1788; Hamilton MSS., Lib. Cong. - -[1276] Madison to Hamilton, June 16, 1788; Hamilton MSS., Lib. Cong. - -[1277] Lee to Hamilton; Hamilton MSS., Lib. Cong. The first paragraph of -Lee's letter to Hamilton shows that the latter was helping his friend -financially; for Lee wrote, "God bless you & your efforts to save me -from the manifold purse misfortunes which have & continue to oppress me, -whenever I attempt to aid human nature. You will do what you think best, -& whatever you do I will confirm--Hazard has acted the part of a decided -rascal, & if I fail in my right, I may not in personal revenge." (_Ib._) - -[1278] Madison to Washington, June 13, 1788; _Writings_: Hunt, v, 179 -and footnote. - -[1279] Elliott, iii, 410-12. - -[1280] _Ib._, 412-15. - -[1281] _Ib._, 415-18. - -[1282] Elliott, iii, 419-20. - -[1283] Elliott, iii, 419-21. - -[1284] _Ib._, 421-22. - -[1285] _Ib._, 422-24. - -[1286] Henry turned the tide in Marshall's favor in the latter's hard -fight for Congress in 1798. (_Infra_, vol. II, chap. X.) - -[1287] Elliott, iii, 434. - -[1288] Elliott, iii, 431. Throughout the entire debate Henry often -sounded his loudest alarms on the supreme power of Congress over the ten -miles square where the National Capital was to be located; and, indeed, -this seems to have been one of the chief sources of popular -apprehension. The fact that the people at large looked upon the proposed -National Government as something foreign, something akin to the British -rule which had been overthrown, stares the student in the face wherever -he turns among the records of the Constitutional period. It is so -important that it cannot too often be repeated. - -Patrick Henry, of course, who was the supreme popular orator of our -history and who drew his strength from his perfect knowledge of the -public mind and heart, might have been expected to make appeals based on -this general fear. But when such men as George Mason and William -Grayson, who belonged to Virginia's highest classes and who were -carefully educated men of conservative temper, did the same thing, we -see how deep and strong was the general feeling against any central -National power. - -[1289] Elliott, iii, 447-49. - -[1290] _Ib._, 452-57. - -[1291] Elliott, iii, 473. - -[1292] It is exceedingly strange that in the debates on the Constitution -in the various State Conventions, so little, comparatively, was made of -the debt and the speculations in it. The preciousness of "liberty" and -the danger of "monarchy," the security of the former through State -sovereignty and the peril of the latter through National Government, -received far more attention than did the economic problem. - -[1293] Elliott, 472-74. And see vol. II, chap. II, of this work. - -[1294] "The recovery of the British debts can no longer be postponed and -there now seems to be a moral certainty that your patrimony will all go -to satisfy the unjust debt from your papa to the Hanburys." (Tucker to -his stepsons, June 29, 1788, quoted in Conway, 106; and see comment, -_ib._) - -[1295] Elliott, iii, 484. - -[1296] _Ib._, 491. - -[1297] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. This shows -the loose management of the Anti-Constitutionalist politicians: for -Kentucky had fourteen votes in the Convention, instead of thirteen, as -Grayson declared; and so uncertain was the outcome that to omit a single -vote in calculating the strength of the contending forces was -unpardonable in one who was, and was accounted to be, a leader. - - - - -CHAPTER XII - -THE STRATEGY OF VICTORY - - Washington's influence carried this government [Virginia's - ratification of the Constitution]. (Monroe to Jefferson, July 12, - 1788.) - - If I shall be in the minority, I shall have those painful - sensations which arise from a conviction of _being overpowered in - a good cause_. Yet I will be a peaceable citizen. (Henry, in his - last debate.) - - -Now came the real tug-of-war. The debate on the Judiciary was the -climax of the fight. And here John Marshall was given the place of -chief combatant. The opposition felt that again they might influence -one or two delegates by mere debate, and they prepared to attack -with all their might. "Tomorrow the Judiciary comes on when we -[Anti-Constitutionalists] shall exert our whole force. It is expected we -shall get two Votes if the point is conducted in an able & masterly -manner," Grayson advised the opposition headquarters in New York.[1298] - -The Judiciary was, indeed, the weakest part of the Constitutionalists' -battle line. The large amount of the British debts; the feeling, which -Virginia's legislation against the payment of them had fostered, that -the day would be far distant and perhaps would never come when those -debts would have to be paid; the provision of the Constitution -concerning the making of treaties, which were to be the supreme law of -the land; the certainty that the Treaty of Peace would be covered by the -new fundamental law; the fear that another treaty would be negotiated -governing the British obligations more specifically, if the -Constitution were adopted; the fact that such a treaty and all other -National laws would be enforced by National Courts--all these and many -other germane considerations, such as land grants and confused titles, -were focused on the fears of the planters. - -The creditor class were equally anxious and alarmed. "If the new -Constitution should not be adopted or something similar, we are of the -opinion that such is the interest and influence of Debtors in our State -that every thing ... will be at Risk" was the opinion of the legal -representatives in Virginia of the Collins mercantile house.[1299] - -Great quantities of land granted under the Royal Government by Great -Britain, but which the State had confiscated, had been bought and -settled by thousands of men whose families now lived upon this land; and -these settlers felt that, in some way, their titles would be in danger -if they were dragged before a National Court.[1300] - -The Constitutionalists did not underestimate their peril, and at no -point during the three weeks' debate did they prepare for battle with -greater care. They returned to their original tactics and delivered the -first blow. Pendleton, of course, was the ideal man to lead the -Constitutionalist attack. And never in his whole life did that -extraordinary man make a more convincing argument.[1301] Mason tried his -best to answer Pendleton, although he admitted that the Judiciary "lies -out of my line." Still he was clear, in his own mind, that the National -Judiciary was "so constructed as to destroy the dearest rights of the -community," and thought it would "destroy the state governments, -whatever may have been the intention." - -While Mason spoke with uncertainty, it was in this brief speech that -this eminent Virginian uncovered the hidden thought and purpose of many -of the Constitutionalists; and uttered an unconscious prophecy which it -was the destiny of John Marshall to realize. "There are," said Mason, -"many gentlemen in the United States who think it right that we should -have one great, national, consolidated government, and that it was -better to bring it about slowly and imperceptibly rather than all at -once. This is no reflection on any man, for I mean none. To those who -think that one national, consolidated government is best for America, -this extensive judicial authority will be agreeable"; and he further -declared, "I know from my own knowledge many worthy gentlemen" of this -opinion. Madison demanded of Mason "an unequivocal explanation." Mason -exonerated Madison, personally, and admitted that "neither did I ever -hear any of the delegates from this state advocate it." Thus did the -extreme courtesy of the Virginia debate cause the opposition to yield -one of its most effective weapons.[1302] - -But Mason made the most out of the Constitution's proposed Judiciary -establishment. Take it at its best, said he: "Even suppose the poor man -should be able to obtain judgment in the inferior court, for the -greatest injury, what justice can he get on appeal? Can he go four or -five hundred miles? Can he stand the expense attending it?"[1303] As to -the jurisdiction of National Courts in controversies between citizens of -different States, "Can we not trust our state courts with a decision of -these?" asked Mason. "What!" cried he, "carry me a thousand miles from -home--from my family and business--to where, perhaps, it will be -impossible for me to prove that I paid" the money sued for. - -"Is not a jury excluded absolutely?" by the Constitution, asked Mason. -And even if a jury be possible in National Courts, still, under the -Constitution, where is there any right to challenge jurors? "If I be -tried in the Federal Court for a crime which may effect my life, have I -a right of challenging or excepting to the jury?" This omission was a -serious and immediate peril to great numbers of Virginians, said he. "I -dread the ruin that will be wrought on thirty thousand of our people -[deriving their titles through Fairfax] with respect to disputed lands. -I am personally endangered as an inhabitant of the Northern Neck." Under -the Constitution "the people of that part will be obliged ... to pay the -quit rent of their lands." This was to Mason, "a most serious -alarm...." - -"Lord Fairfax's title was clear and undisputed," he continued. The State -had "taxed his lands as private property"; but "after his death" -Virginia, in 1782, "sequestered the quit rents due at his death, in the -hands of his debtors. The following year" they were restored to his -executor. Then came the Treaty of Peace providing against "further -confiscation"; but, "after this, an act of Assembly passed, confiscating -his [Fairfax's] whole property." - -So, concluded Mason, "as Lord Fairfax's title was indisputably good, and -as treaties [under the Constitution] are to be the supreme law of the -land, will not his representatives be able to recover all in the federal -court? How will gentlemen like to pay an additional tax on lands in the -Northern Neck?" Yet that was what they would be compelled to do if the -Constitution were adopted. Thus they would be "doubly taxed." "Were I -going to my grave, I would appeal to Heaven that I think it [this] -true," fervently avowed the snowy-haired Mason. - -Thus Mason made one of the cleverest appeals of the whole debate to the -personal and pecuniary interests of a considerable number of the people -and to several members of the Convention. In this artful and somewhat -demagogic argument he called attention to the lands involved in other -extensive land grants. As we have seen, John Marshall was then -personally interested in the Fairfax title,[1304] and he was soon to -possess it; in after years, it was to develop one of the great legal -contests of history; and the court over which Marshall was to preside -was to settle it definitively. - -Although not a lawyer,[1305] Madison now made an argument which was one -of the distinguished intellectual performances of the Convention. But he -did not comprehend the sweep of the National Judiciary's power. "It is -not in the power of individuals," said Madison, "to call any state into -court." It may be that this statement influenced John Marshall, who soon -followed, to repeat it.[1306] - -But it was Henry who gave the subject of the Judiciary that thrill, -anticipation of which filled every seat on the floor and packed the -galleries. "Mournful," to Henry, were the recollections which the debate -already had produced. "The purse is gone; the sword is gone," and now -the scales of Justice are to be given away. Even the trial by jury is to -be abandoned. Henry spoke long and effectively; and, extravagant as most -of his statements were, his penetrating mind was sometimes more nearly -right in its forecast than even that of Madison. - -As he closed, the daring of the Patrick Henry of 1765 and 1775 displayed -itself. "Shall Americans give up that [jury trial] which nothing could -induce the English people to relinquish?" he exclaimed. "The idea is -abhorrent to my mind. There was a time when we should have spurned at -it.... Old as I am, it is probable I may yet have the appellation of -_rebel_.... As this government [Constitution] stands, I despise and -abhor it," cried the unrivaled orator of the people.[1307] - -Up now rose John Marshall, whom the Constitutionalist leaders had agreed -upon for the critical task of defending the Judiciary article. Marshall, -as we have seen, had begun the practice of law in Richmond only five -years before; and during much of this period his time and attention had -been taken by his duties as a delegate in the Legislature. Yet his -intellectual strength, the power of his personality, his likableness, -and all the qualities of his mind and character had so impressed every -one that, by common consent, he was the man for the hour and the work at -hand. And Marshall had carefully prepared his speech.[1308] - -The Judiciary provided by the Constitution was, said Marshall "a great -improvement on that system from which we are now departing. Here [in the -Constitution] are tribunals appointed for _the decision of -controversies_ which were before either not at all, or improperly, -provided for. That many benefits will result from this to the members of -the collective society, every one confesses." The National Judiciary -deserved the support of all unless it was "defectively organized and so -constructed as to injure, instead of accommodate, the convenience of the -people." - -After the "fair and able" discussion by its supporters, Marshall -supposed that its opponents "would be convinced of the impropriety of -some of their objections. But," he lamented, "they still continue the -same opposition." And what was their complaint? This: That National -Courts would not be as fair and impartial as State Courts. - -But why not? asked Marshall. Was it because of their tenure of office or -the method of choosing them? "What is it that makes us trust our [State] -judges? Their independence in office and manner of appointment."[1309] -But, under the Constitution, are not National judges "chosen with as -much wisdom as the judges of the state governments? Are they not -equally, if not more independent? If so," will they not be equally fair -and impartial? "If there be as much wisdom and knowledge in the United -States as in a particular state," will they "not be equally exercised in -the selection of [National] judges?" Such were the questions which -Marshall poured upon the Anti-Constitutionalists. - -The kernel of the objection to National Courts was, declared Marshall, -"a belief that there will not be a fair trial had in those courts." But -it was plain, he argued, that "we are as secure there as anywhere else. -What mischief results from some causes being tried there [in the -National Courts]?" Independent judges "wisely appointed ... will never -countenance an unfair trial." Assuming this to be true "what are the -subjects of the jurisdiction" of National Courts? To Mason's objection -that Congress could create any number of inferior courts it might deem -necessary, Marshall replied that he had supposed that those who feared -Congress would say that "no inferior courts" would be established, "but -that we should be dragged to the centre of the Union." On the contrary, -the greater the number of these inferior courts, the less danger "of -being dragged to the centre of the United States." - -Mason's point, that the jurisdiction of National Courts would extend to -all cases, was absurd, argued Marshall. For "has the government of the -United States power to make laws on every subject?... laws affecting the -mode of transferring property, or contracts, or claims, between citizens -of the same state? Can" Congress "go beyond the delegated powers?" -Certainly not. Here Marshall stated the doctrine which, fifteen years -later, he was to announce from the Supreme Bench:-- - -"If," he asserted, "they [Congress] were to make a law not warranted by -any of the powers enumerated, it would be considered by the [National] -judges as an infringement of the Constitution which they are to guard. -They would not consider such a law as coming under their jurisdiction. -_They would declare it void_.... To what quarter will you look for -protection from an infringement of the Constitution, if you will not -give the power to the judiciary? There is no other body that can afford -such a protection." - -The National Courts would not supplant the State tribunals. The -Constitution did not "exclude state courts" from those cases which they -now possess. "They have concurrent jurisdiction with the Federal courts -in those cases in which the latter have cognizance," expounded the -nascent jurist. "Are not controversies respecting lands claimed under -the grants of different states the only controversies between citizens -of the same state which the Federal Judiciary can take [exclusive] -cognizance of?" - -The work of the National Courts would make the State Courts more -efficient because it would relieve them of a mass of business of which -they were not able to dispose. "Does not every gentleman know that the -causes in our [State] courts are more numerous than they can decide?" -asked Marshall. "Look at the dockets," he exclaimed. "You will find them -crowded with suits which the life of man will not see determined.[1310] -If some of these suits be carried to other courts, will it be wrong? -They will still have business enough." - -How vain and fanciful, argued Marshall, the contention that National -judges would screen "officers of the [National] government from merited -punishment." Does anybody really believe that "the Federal sheriff will -go into a poor man's house and beat him or abuse his family and the -Federal court will protect him," as Mason and Henry had said would be -the case? Even if a law should be passed authorizing "such great insults -to the people ... it would be void," declared Marshall. Thus he stated -for the second time the doctrine which he was, from the Supreme Bench, -to put beyond controversy. - -Why, asked Marshall, "discriminate [in the Constitution] between ... -chancery, admiralty and the common law" as the Anti-Constitutionalists -insisted upon doing? "Why not leave it to Congress? They ... would not -wantonly infringe your rights." If they did, they would "render -themselves hateful to the people at large." Therefore, "something may be -left to the legislature [Congress] freely chosen by ourselves from among -ourselves, who are to share the burdens imposed upon the community and -who can be changed at our pleasure. Where power may be trusted and there -is no motive to abuse it, it ... is as well to leave it undetermined as -to fix it in the Constitution." - -These sentences had prophecy in them. Indeed, they were to be repeated -almost without change by the same man that now uttered them in debate, -when he should ascend to the ultimate place of official interpretation -of our fundamental law. While Hamilton's immortal state papers -profoundly impressed Marshall, as we shall see, they were not, as many -have supposed, the source of his convictions. In the Virginia -Constitutional Convention of 1788 Marshall stated in debate the elements -of most of his immortal Nationalist opinions. - -But there was one exception. As to "disputes between _a state and the -citizens of another state_," Marshall hoped "that no gentleman will -think that a state will be called at the bar of a Federal court.... It -is not rational to suppose that the Sovereign power should be dragged -before a court. The intent is to enable states to recover claims of -individuals residing in other states." If there were partiality in -this--"if an individual cannot ... obtain judgment against a state, -though he may be sued by a state"--it was a difficulty which could "not -be avoided"; let the claimant apply to the State Legislature for relief. - -The objection to suits in the National Courts between citizens of -different States went "too far," contended Marshall. Such actions "may -not in general be absolutely necessary," but surely in some such cases -"the citizen ... ought to be able to recur to this [National] tribunal." -What harm could it do? "Will he get more than justice there? What has he -to get? Justice! Shall we object to this because the citizen of another -state can obtain justice without applying to our state courts?" Indeed, -"it may be necessary" in causes affected by "the laws and regulations of -commerce" and "in cases of debt and some other controversies."... "In -claims for land it is not necessary--but it is not dangerous." - -These suits between citizens of different States "will be instituted in -the state where the defendant resides, and nowhere else," expounded the -youthful interpreter of the Constitution; and the case "will be -determined by the laws of the state where the contract was made. -According to those laws, and those only, can it be decided." That was no -"novelty," but "a principle" long recognized in the jurisprudence of -Virginia. "The laws which governed the contract at its formation, govern -it in its decision." National Courts, in such controversies, would -"preserve the peace of the Union," because if courts of different States -should not give justice between citizens of those States, the result -would be "disputes between the states." Also the jurisdiction of -National Courts in "controversies between a state and a foreign -state ... will be the means of preventing disputes with foreign -nations"; for since "the previous consent of the parties is -necessary ... each party will acquiesce." - -As to "the exclusion of trial by jury, in this case," Marshall asked, -"Does the word _court_ only mean the judges? Does not the determination -of the jury necessarily lead to the judgment of the court? Is there -anything" in the Constitution "which gives the [National] judges -exclusive jurisdiction of matters of fact? What is the object of a jury -trial? To inform the court of the facts." If "a court has cognizance of -facts," it certainly "can make inquiry by a jury," dryly observed -Marshall. - -He ridiculed Mason's and Henry's statement that juries, in the ten miles -square which was to be the seat of the National Government, would be -"mere tools of parties with which he would not trust his person or -property." "What!" exclaimed Marshall, "Will no one stay there but the -tools and officers of the government?... Will there not be independent -merchants and respectable gentlemen of fortune ... worthy farmers and -mechanics" in the National Capital just as there were in Richmond? And -"will the officers of the government become improper to be on a jury? -What is it to the government whether this man or that man succeeds? It -is all one thing." - -As to jury trial not being guaranteed by the National Constitution in -civil cases, neither did Virginia's Constitution, said Marshall, "direct -trials by jury"; and the provision was "merely recommendatory" -concerning jury trials in the Bill of Rights, which, as everybody knew, -was no part of the State Constitution. "Have you a jury trial when a -judgment is obtained on a replevin bond or by default?" Or "when a -motion is made by the Commonwealth against an individual ... or by one -joint obligor against another, to recover sums paid as security." Of -course not! "Yet they are all civil cases.... The Legislature of -Virginia does not give a trial by jury where it is not necessary, but -gives it wherever it is thought expedient." And Congress would do the -same, he reassured the Convention. - -Mason's objection, that the right to challenge jurors was not guaranteed -in the Constitution, was trivial, said Marshall. Did Virginia's -Constitution make such a guaranty? Did the British Constitution do so by -any express provision? Was jury challenge secured by Magna Charta? Or by -the Bill of Rights?[1311] Every Virginian knew that they were not. "This -privilege is founded in their [English people's] laws," Marshall -reminded the Convention. So why insert it in the American Constitution? - -Thus the inhabitants of the Northern Neck or anybody else were not in -danger on that score. Neither were they placed in jeopardy in any other -way by the Constitution. Here Marshall made a curious argument. Mason, -he said, had "acknowledged that there was no complete title[1312] [in -Fairfax].... Was he [Mason] not satisfied that the right of the legal -representatives of the proprietor [to collect quitrents] did not exist -at the time he mentioned [the date of the Treaty of Peace]? If so, it -cannot exist now," declared Marshall. "I trust those who come from that -quarter [the Northern Neck] will not be intimidated on this account in -voting on this question" he pleaded; for let them remember that there -was "a law passed in 1782 [sequestration of quitrents] which secured -this." - -Let the "many poor men" who Mason had said might "be harassed by the -representatives of Lord Fairfax" rest assured on that point; for "if he -[Fairfax] has no right," they could not be disturbed. "If he has this -right [to collect quitrents] and comes to Virginia, what laws will his -claims be determined by?" By Virginia's laws. "By what tribunals will -they be determined? By our state courts."[1313] So the "poor man" who -was "unjustly prosecuted" would "be abundantly protected and satisfied -by the temper of his neighbors."[1314] - -The truth was, said Marshall, that justice would be done in all cases by -both National and State Courts. Laws would not be "tyrannically -executed" as the opposition feared; the "independency of your judges" -would prevent that. "If," he argued, "a law be exercised tyrannically in -Virginia, to whom can you trust? To your Judiciary! What security have -you for justice? Their independence! Will it not be so in the Federal -court?" - -Like other objections to the power of Congress and the conduct of -National Courts, the criticism that men might be punished for their -political opinions was, declared Marshall, groundless and absurd; for, -"the good opinion of the people at large must be consulted by their -representatives--otherwise mischiefs would be produced which would shake -the government to its foundations." Of course, then, he contended, -neither Congress nor the courts would abuse their power. The charge that -"unjust claims will be made, and the defendant had better pay them than -go to the Supreme Court" was unthinkable. Would anybody incur great -expense to oppress another? "What will he gain by an unjust demand? -Does a claim establish a right? He must bring his witnesses to prove his -claim"; otherwise "the expenses must fall on him." Will he take the -chances that the injured man will not appear and defend the unjust suit? -"Those who know human nature, black as it is," sarcastically observed -Marshall, "must know that mankind are too attached to their own interest -to run such a risk." - -"The Federal Government," exclaimed Marshall, "has no other motive, and -has every reason for doing right which the members of our state -legislature have. Will a man on the eastern shore be sent to be tried in -Kentucky, or a man from Kentucky be brought to the eastern shore to have -his trial? A government, by doing this, would destroy itself."[1315] - -This, in effect, was John Marshall's exposition of the second section of -article three of the Constitution. Although Grigsby, whose accuracy on -such details is not questioned, says that the speech was prepared, -Robertson's report would not indicate that such was the case. The -address is wanting in that close-knit continuity of reasoning and in -that neatness of thought and expression which were Marshall's peculiar -excellence. Like his first debate in the Convention, his speech on the -Judiciary is disjointed. A subject is half treated in one part of his -remarks and resumed in another.[1316] But he makes his principal points -with clearness and power. His argument is based on the independence of -the courts as the best guaranty against unjust decisions; the -responsibility of Congress to the people as the strongest safeguard -against oppressive laws; and the similarity of Virginia's Constitution -and Courts to the National Constitution and Courts as proof of the -security, fairness, and justice of the National Judiciary. - -Marshall's effort really closed the case for the Constitution on the -Judiciary. That night Madison wrote to Hamilton that "a great effort is -making" against the Judiciary. "The retrospection to cases antecedent to -the Constitution, such as British debts and an apprehended revival of -Fairfax--Indiana, Vandalia, &c., claims are also brought into view in -all the terrific colours which imagination can give them.... Delay & an -adjournment will be tried if the adverse party find their numbers -inferior.... At present it is calculated that we still retain a majority -of 3 or 4; and if we can weather the storm ag^{st}" the Judiciary, "I -shall hold the danger to be pretty well over. There is nevertheless a -very disagreeable uncertainty in the case; and the more so as there is a -possibility that our present strength may be miscalculated."[1317] - -Marshall's speech alarmed the opposition, and Grayson used all his -learning, wit, and cleverness in an attempt to break its force. Randolph -replied. Thus the second week closed. Neither side was certain of the -exact number of votes it had, though every member was observed with the -politician's anxiety and care.[1318] The Constitutionalists had the -greater confidence. Madison wrote his father that "The calculations on -different sides do not accord;... I think however, the friends of the -Constitution are most confident of superiority.... It is not probable -that many proselytes will be made on either side."[1319] - -On Sunday Madison made his weekly report to Hamilton: "The Judiciary -Department has been on the anvil for several days; and I presume will -still be a further subject of disquisition. The attacks on it have -apparently made less impression than was feared. But they may be -secretly felt by particular interests that would not make the -acknowledgment, and w^d chuse to ground their vote ag^{st} the -Constitution on other motives."[1320] - -The Anti-Constitutionalists were becoming desperate. If they could not -amend the Constitution as a condition of ratifying it, their game now -was either an adjournment or a delay until the Legislature, scheduled to -meet on the following Monday and known to be, in the main, opposed to -the Constitution, should afford them relief. - -If these expedients should fail, there was open talk of secession.[1321] -The Constitutionalists arranged for the utmost dispatch and planned to -"withhold, by a studied fairness in every step on the side of the -Constitution, every pretext for rash experiments." They hoped to avoid -previous amendment by proposing "to preface the ratification with some -plain & general matters that cannot effect the validity of the" -Constitution. They felt that "these expedients are rendered prudent by -the nice balance of members, and the scruples entertained by some who -are in general well affected." But whether these devices "will secure us -a majority," wrote Madison, "I dare not positively to declare." - -So small was their expected majority likely to be, that the -Constitutionalists felt that "ordinary casualties ... may vary the -result." They were exceedingly alarmed over the coming to town of the -members of the Legislature who "as individuals ... may have some -influence and as coming immediately from the people at large they can -give any colour they please to the popular sentiments at this moment, -and may in that mode throw a bias on the representatives of the people -in Convention."[1322] - -From the adjournment on Saturday until the Convention again assembled on -the following Monday, June 23, the opposition decided that something -more must be done to counteract Marshall's exposition of the Judiciary -article. For this purpose their leader and strongest men took the floor. -The shorthand reporter was not present on this day, but the printer of -the debates took notes.[1323] - -Nothing so well shows the esteem in which Marshall's ability was held as -Patrick Henry's compliment to his young associate. "I have," said -Henry, "the highest veneration and respect for the honorable gentleman, -and I have experienced his candor on all occasions"; but "in this -instance" Henry felt that Marshall was mistaken. "It is not on that -paper before you we have to rely.... It is on those who may be appointed -under it. It will be an empire of men, and not of laws." - -Marshall interrupted Henry to explain that the latter had not clearly -understood him as to the trial by jury. Henry responded that "the -gentleman's candor, sir, as I informed you before, I have the highest -opinion of, and am happy to find he has so far explained what he meant; -but, sir, has he mended the matter?" Then Henry enlarged upon what he -thought was the Constitution's sacrifice of rights of trial by jury. -What would become of this, that, and the other? What would be the end of -this contract and that? And "what is to become of the _purchases of the -Indians_?--those unhappy nations who ... by being made drunk, have given -a thousand, nay I might say, ten thousand acres, for the trifling sum of -sixpence!" And what of those who owed the British debts?--they will "be -ruined by being dragged into Federal courts and the liberty and -happiness of our citizens gone, never again to be recovered."[1324] - -The Constitutionalists had anticipated that Henry would touch on his -hobby, the Indians; and they were ready with an answer far more -effective on the votes of the members than any argument, however -weighty. Hardly had Henry closed when a giant old man got upon his -feet. For more than thirty years this bluff and ancient veteran had been -a soldier. Since 1755 he had been one of the boldest and ablest of -Virginia's famous Indian fighters and often had commanded the Virginia -rangers that defended the frontier from the savages. His utter -fearlessness and tremendous physical strength had made him the terror of -the red man, and his name was a household word throughout Virginia as a -bulwark against the savages. Throughout the Revolution he had borne -himself as a hero. So when Colonel Adam Stephen spoke, his words were -sword-thrusts.[1325] - -Henry, growled Stephen, "means to frighten us by his bugbears of -hobgoblins, his sale of lands to pay taxes, Indian purchases and other -horrors that I think I know as much about as he does." Colonel Stephen -then described the Indian country, the Indian tribes, and Indian trade. -He also knew "of several rich mines of gold and silver in the western -country" which would pay the taxes Henry was so worried about. "If the -gentleman [Henry] does not like this government, let him go and live -among the Indians. I know of several nations that live very happily; and -I can furnish him with a vocabulary of their language."[1326] - -Nothing can be plainer than that this personal assault on Henry was -prearranged; for George Nicholas followed it up with what came near -being an open insult. Answering Henry's insinuation about Indian lands -being fraudulently purchased, Nicholas retorted, looking directly at -Henry, "there are gentlemen who have come by large possessions that it -is not easy to account for." This was taken as a reflection on some of -Henry's land speculations. The latter felt the sting; for "here Mr. -Henry interfered and hoped the honorable gentleman meant nothing -personal." Nicholas snapped back, "I mean what I say, sir." - -The extremes to which the opposition went in lobbying with members and -the nature of their conversation are shown by an acid sentence of -Nicholas in this speech. He referred to "an observation I have heard out -of doors; which was that, because the New England men wore black -stockings and plush breeches, there can be no union with them." - -Henry was instantly on his feet when Nicholas finished. He thought the -Convention floor "an improper place" to make "personal insinuations, or -to wound my private reputation.... As to land matters, I can tell how I -came by what I have ... I hold what I hold in right, and in a just -manner." Henry was most courteous and dignified in this discussion, -disclaiming any intention to offend any one. Nicholas responded that he -"meant no personality ... nor ... any resentment." But, said he, "If -such conduct meets the contempt of that gentleman [Henry] I can only -assure him it meets with an equal degree of contempt from me." - -Here the President of the Convention interfered and "hoped the -gentlemen would not be personal; that they would proceed to investigate -the subject calmly, and in a peaceable manner." Thereupon Nicholas -admitted that he had not referred to Henry when he first spoke, but to -"those who had taken up large tracts of land in the western country"; -Nicholas had not, however, explained this before because he felt that -Henry had said some things that one gentleman ought not to say to -another. Thus ended the second of the only two instances in Virginia's -long and masterful debate which approached a personal quarrel or -displayed even the smallest discourtesy.[1327] - -The debate now drew swiftly to a close. Excitement ran high. The -Anti-Constitutionalists, tense and desperate, threatened forcible -opposition to the proposed National Government if it should be -established. Mason "dreaded popular resistance" to the Constitution and -was "emphatic" in his fears of "_the dreadful effects_ ... should the -people resist." Gentlemen should pause before deciding "a question which -involved such awful consequences." This so aroused Lee that he could "no -longer suppress" his "utterance." Much as he liked and admired Mason, -Lee asked him "if he has not pursued the very means to bring into action -the horrors which he deprecates?" - -"Such speeches within these walls, from a character so venerable and -estimable," declared Lee, "easily progress into overt acts, among the -less thinking and the vicious." Lee implored that the "God of heaven -avert from my country the dreadful curse!" But, he thundered, "if the -madness of some and the vice of others" should arouse popular resistance -to the Constitution, the friends of that instrument "will meet the -afflicting call"; and he plainly intimated that any uprising of the -people against the proposed National Government would be met with -arms.[1328] The guns of Sumter were being forged. - -On the night of June 23, the Constitutionalists decided to deliver their -final assault. They knew that it must be a decisive one. The time had -arrived for the meeting of the Legislature which was hostile to the -Constitution;[1329] and if the friends of the proposed new Government -were to win at all, they must win quickly. A careful poll had shown them -that straight-out ratification without amendment of some kind was -impossible. So they followed the plan of the Massachusetts -Constitutionalists and determined to offer amendments themselves--but -amendments merely by way of recommendation and subsequent to -ratification, instead of previous amendments as a condition of -ratification. The venerable Wythe was chosen to carry out the programme. -On Tuesday morning, June 24, Pendleton called to the chair Thomas -Mathews, one of the best parliamentarians in the Convention, a stanch -Constitutionalist, a veteran of the Revolution, and a popular man. - -Instantly Mathews recognized Wythe; for Henry was ready with his -amendments, and, had an Anti-Constitutionalist been in the chair, would -have been able to offer them before Wythe could move for ratification. -Wythe, pale and fatigued, was so agitated that at first he could not -speak plainly.[1330] After reviewing the whole subject, he said that to -insist on previous amendments might dissolve the Union, whereas all -necessary amendments could easily be had after ratification. Wythe then -moved the Constitutionalists' resolution for ratification. - -In a towering rage, Henry rose for what, outside of the courtroom, was -the last great speech of his life.[1331] He felt that he had been -unjustly forestalled and that the battle against the Constitution was -failing because of the stern and unfair tactics of his foes.[1332] The -Constitutionalists admitted, said Henry, that the Constitution was -"capitally defective"; yet they proposed to ratify it without first -remedying its conceded faults. This was so absurd that he was "sure the -gentleman [Wythe] meant nothing but to amuse the committee. I know his -candor," said Henry. "His proposal is an idea dreadful to me.... The -great body of yeomanry are in decided opposition" to the Constitution. - -Henry declared that of his own personal knowledge "nine tenths of the -people" in "nineteen counties adjacent to each other" were against the -proposed new National Government. The Constitutionalists' plan of -"subsequent amendments will not do for men of this cast." And how do the -people feel even in the States that had ratified it? Look at -Pennsylvania! Only ten thousand out of seventy thousand of her people -were represented in the Pennsylvania Convention. - -If the Constitution was ratified without previous amendments, Henry -declared that he would "have nothing to do with it." He offered the Bill -of Rights and amendments which he himself had drawn, proposing to refer -them to the other States "for their consideration, previous to its -[Constitution's] ratification."[1333] Henry then turned upon the -Constitutionalists their own point by declaring that it was their plan -of ratification without previous amendments which would endanger the -Union.[1334] Randolph followed briefly and Dawson at great length. -Madison for the Constitutionalists, and Grayson for the opposition, -exerted themselves to the utmost. Nature aided Henry when he closed the -day in an appeal such as only the supremely gifted can make. - -[Illustration: PATRICK HENRY] - -"I see," cried Henry, in rapt exaltation, "the awful immensity of the -dangers with which it [the Constitution] is pregnant. I see it. I feel -it. I see beings of a higher order anxious concerning our decision. When -I see beyond the horizon that bounds human eyes, and look at the -final consummation of all human things, and see those intelligent beings -which inhabit the ethereal mansions reviewing the political decisions -and revolutions which, in the progress of time, will happen in America, -and the consequent happiness or misery of mankind, I am led to believe -that much of the account, on one side or the other, will depend on what -we now decide. Our own happiness alone is not affected by the event. All -nations are interested in the determination. We have it in our power to -secure the happiness of one half of the human race. Its adoption may -involve the misery of the other hemisphere."[1335] - -In the midst of this trance-like spell which the master conjurer had -thrown over his hearers, a terrible storm suddenly arose. Darkness fell -upon the full light of day. Lightnings flashed and crashing thunders -shook the Convention hall. With the inspiration of genius this unrivaled -actor made the tempest seem a part of his own denunciation. The scene -became insupportable. Members rushed from their seats.[1336] As Henry -closed, the tempest died away. - -The spectators returned, the members recovered their composure, and the -session was resumed.[1337] Nicholas coldly moved that the question be -put at nine o'clock on the following morning. Clay and Ronald opposed, -the latter declaring that without such amendments "as will secure the -happiness of the people" he would "though much against his inclination -vote against this Constitution." - -Anxious and prolonged were the conferences of the Constitutionalist -managers that night. The Legislature had convened. It was now or never -for the friends of the Constitution. The delay of a single day might -lose them the contest. That night and the next morning they brought to -bear every ounce of their strength. The Convention met for its final -session on the historic 25th of June, with the Constitutionalists in -gravest apprehension. They were not sure that Henry would not carry out -his threat to leave the hall; and they pictured to themselves the -dreaded spectacle of that popular leader walking out at the head of the -enraged opposition.[1338] - -Into the hands of the burly Nicholas the Constitutionalists wisely gave -command. The moment the Convention was called to order, the chair -recognized Nicholas, who acted instantly with his characteristically icy -and merciless decision. "The friends of the Constitution," said -Nicholas, "wish to take up no more time, the matter being now fully -discussed. They are convinced that further time will answer no end but -to serve the cause of those who wish to destroy the Constitution. We -wish it to be ratified and such amendments as may be thought necessary -to be subsequently considered by a committee in order to be recommended -to Congress." Where, he defiantly asked, did the opposition get -authority to say that the Constitutionalists would not insist upon -amendments after they had secured ratification of the Constitution? They -really wished for Wythe's amendments;[1339] and would "agree to any -others which" would "not destroy the spirit of the Constitution." -Nicholas moved the reading of Wythe's resolution in order that a vote -might be taken upon it.[1340] - -Tyler moved the reading of Henry's proposed amendments and Bill of -Bights. Benjamin Harrison protested against the Constitutionalists' -plan. He was for previous amendment, and thought Wythe's "measure of -adoption to be unwarrantable, precipitate, and dangerously impolitic." -Madison reassured those who were fearful that the Constitutionalists, if -they won on ratification, would not further urge the amendments Wythe -had offered; the Constitutionalists then closed, as they had begun, with -admirable strategy. - -James Innes was Attorney-General. His duties had kept him frequently -from the Convention. He was well educated, extremely popular, and had -been one of the most gifted and gallant officers that Virginia had sent -to the front during the Revolution. Physically he was a colossus, the -largest man in that State of giants. Such was the popular and imposing -champion which the Constitutionalists had so well chosen to utter their -parting word.[1341] And Innes did his utmost in the hardest of -situations; for if he took too much time, he would endanger his own -cause; if he did not make a deep impression, he would fail in the -purpose for which he was put forward.[1342] - -Men who heard Innes testify that "he spoke like one inspired."[1343] For -the opposition the learned and accomplished Tyler closed the general -debate. It was time wasted on both sides. But that nothing might be left -undone, the Constitutionalists now brought into action a rough, -forthright member from the Valley. Zachariah Johnson spoke for "those -who live in large, remote, back counties." He dwelt, he said, "among the -poor people." The most that he could claim for himself was "to be of the -middle rank." He had "a numerous offspring" and he was willing to trust -their future to the Constitution.[1344] - -Henry could not restrain himself; but he would better not have spoken, -for he admitted defeat. The anxious Constitutionalists must have -breathed a sigh of relief when Henry said that he would not leave the -hall. Though "_overpowered in a good cause_, yet I will be a peaceable -citizen." All he would try to do would be "to remove the defects of that -system [the Constitution] in a constitutional way." And so, declared the -scarred veteran as he yielded his sword to the victors, he would -"patiently wait in expectation of seeing that government changed, so as -to be compatible with the safety, liberty, and happiness, of the -people." - -Wythe's resolution of ratification now came to a vote. No more carefully -worded paper for the purposes it was intended to accomplish ever was -laid before a deliberative body. It reassured those who feared the -Constitution, in language which went far to grant most of their demands; -and while the resolve called for ratification, yet, "in order to relieve -the apprehensions of those who may be solicitous for amendments," it -provided that all necessary amendments be _recommended_ to Congress. -Thus did the Constitutionalists, who had exhausted all the resources of -management, debate, and personal persuasion, now find it necessary to -resort to the most delicate tact. - -The opposition moved to substitute for the ratification resolution one -of their own, which declared "that previous to the ratification ... a -declaration of rights ... together with amendments ... should be -referred by this Convention to the other states ... for their -consideration." On this, the first test vote of the struggle, the -Constitutionalists won by the slender majority of 8 out of a total of -168. On the main question which followed, the Anti-Constitutionalists -lost but one vote and the Constitution escaped defeat by a majority of -only 10. - -To secure ratification, eight members of the Convention voted against -the wishes of their constituents,[1345] and two ignored their -instructions.[1346] Grayson openly but respectfully stated on the floor -that the vote was the result of Washington's influence. "I think," said -he, "that, were it not for one great character in America, so many men -would not be for this government."[1347] Followers of their old -commander as the members from the Valley were, the fear of the Indians -had quite as much to do with getting their support for a stronger -National Government as had the weight of Washington's influence.[1348] - -Randolph "humbly supplicated one parting word" before the last vote was -taken. It was a word of excuse and self-justification. His vote, he -said, would be "ascribed by malice to motives unknown to his breast." He -would "ask the mercy of God for every other act of his life," but for -this he requested only Heaven's justice. He still objected to the -Constitution, but the ratification of it by eight States had now -"reduced our deliberations to the single question of _Union_ or no -_Union_."[1349] So closed the greatest debate ever held over the -Constitution and one of the ablest parliamentary contests of history. - -A committee was appointed to report "a form of ratification pursuant to -the first resolution"; and another was selected "to prepare and report -such amendments as by them shall be deemed necessary."[1350] Marshall -was chosen as a member of both these important committees. - -The lengths to which the Constitutionalists were driven in order to -secure ratification are measured by the amendments they were forced to -bring in. These numbered twenty, in addition to a Bill of Rights, which -also had twenty articles. The ten amendments afterwards made to the -Constitution were hardly a shadow of those recommended by the Virginia -Convention of 1788. - -That body actually proposed that National excise or direct tax laws -should not operate in any State, in case the State itself should collect -its quota under State laws and through State officials; that two thirds -of both houses of Congress, present, should be necessary to pass -navigation laws or laws regulating commerce; that no army or regular -troops should be "raised or kept up in time of peace" without the -consent of two thirds of both houses, present; that the power of -Congress over the seat of the National Government should be confined to -police and administrative regulation. The Judiciary amendment would have -imprisoned the Supreme Court within limits so narrow as to render that -tribunal almost powerless and would have absolutely prevented the -establishment of inferior National Courts, except those of -Admiralty.[1351] Yet only on such terms could ratification be secured -even by the small and uncertain majority that finally voted for it. - -On June 25, Clinton's suppressed letter to Randolph was laid before the -House of Delegates which had just convened.[1352] Mason was so furious -that he drew up resolutions for an investigation of Randolph's -conduct.[1353] But the deed was done, anger was unavailing, and the -resolutions never were offered.[1354] - -So frail was the Constitutionalist strength that if the news of the New -Hampshire ratification had not reached Virginia, it is more than -probable that Jefferson's advice would have been followed and that the -Old Dominion would have held back until all the amendments desired by -the opposition had been made a part of the fundamental law;[1355] and -the Constitution would have been a far different and infinitely weaker -instrument than it is. - -Burning with wrath, the Anti-Constitutionalists held a meeting on the -night of the day of the vote for ratification, to consider measures for -resisting the new National Government. The character of Patrick Henry -never shone with greater luster than when he took the chair at this -determined gathering of furious men. He had done his best against the -Constitution, said Henry, but he had done it in the "_proper place_"; -the question was settled now and he advised his colleagues that "as true -and faithful republicans, they had all better go home!"[1356] Well might -Washington write that only "conciliatory conduct" got the Constitution -through;[1357] well might he declare that "it is nearly impossible for -anybody who has not been on the spot (from any description) to conceive -what the delicacy and danger of our situation have been."[1358] - -And Marshall had been on the spot. Marshall had seen it all. Marshall -had been a part of it all. From the first careful election programme of -the Constitutionalists, the young Richmond lawyer had been in every -meeting where the plans of the managers were laid and the order of -battle arranged. No man in all the country knew better than he, the -hair's breadth by which the ordinance of our National Government escaped -strangulation at its very birth. No one in America better understood how -carefully and yet how boldly Nationalism must be advanced if it were to -grow stronger or even to survive. - -It was plain to Marshall that the formal adoption of the Constitution -did not end the battle. That conflict, indeed, was only beginning. The -fight over ratification had been but the first phase of the struggle. We -are now to behold the next stages of that great contest, each as -dramatic as it was vital; and we shall observe how Marshall bore himself -on every field of this mighty civil strife, note his development and -mark his progress toward that supreme station for which events prepared -him. We are to witness his efforts to uphold the National Government, -not only with argument and political activity, but also with a -readiness to draw the sword and employ military force. We shall look -upon the mad scenes resulting in America from the terrific and bloody -convulsion in Europe and measure the lasting effect the French -Revolution produced upon the statesmen and people of the United States. -In short, we are to survey a strange swirl of forces, economic and -emotional, throwing to the surface now one "issue" and now another, all -of them centering in the sovereign question of Nationalism or States' -Rights. - - -FOOTNOTES: - -[1298] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. - -[1299] Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787; -Collins MSS., Lib. Cong. - -[1300] See Grigsby, i, 278-79, for an able and sympathetic account from -the point of view of the settler and debtor. - -[1301] _Ib._, 280-84; Elliott, iii, 517-21. - -[1302] Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the -popular feeling against a strong National Government that, if the -Anti-Constitutionalists had concentrated their attack upon this secret -purpose of the leading Constitutionalists to make it such by easy -stages, it is more than probable that the Constitution would have been -defeated. - -[1303] Elliott, iii, 524. - -[1304] His own and his father's lands in Fauquier County were derived -through the Fairfax title. - -[1305] Grigsby, i, 290. - -[1306] Elliott, iii, 530-39. For Marshall's repetition see _ib._, -551-62. - -[1307] Elliott, iii, 539-46. - -[1308] Grigsby, i, 297. - -[1309] Virginia judges were, at this period, appointed by the General -Assembly. (Constitution, 1776.) - -[1310] "There are upwards of 4,000 suits now entered on the docket in -the General Court; and the number is continually increasing. Where this -will end the Lord only knows--should an Act pass to extend the term of -the Courts sitting--it is thought that the number of Executors -[executions] that would issue ... would be too heavy for our government -to bear and that such a rapid transfer of Property would altogether stop -the movement of our Machine." (Logan and Story, to Stephen Collins, -Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.) - -[1311] This form of argument by asking questions to which the answers -must needs be favorable to his contention was peculiarly characteristic -of Marshall. - -[1312] The reporter makes Mason assert the reverse. - -[1313] It is hard to see how Marshall arrived at this conclusion. But -for the fact that Marshall prepared this speech, one would think the -reporter erred. - -[1314] See Marshall's argument in Hite _vs._ Fairfax, chap, V, _supra_; -and see vol. III of this work. - -Randolph made the clearest statement of the whole debate on the Fairfax -question:-- - -"Lord Fairfax ... died during the war. In the year 1782, an act passed -sequestering all quitrents, then due, in the hands of the persons -holding the lands, until the right of descent should be known, and the -General Assembly should make final provision therein. This act directed -all quitrents, thereafter becoming due, to be paid into the public -treasury; so that, with respect to his descendants, this act confiscated -the quitrents. In the year 1783, an act passed restoring to the legal -representative of the proprietor the quitrents due to him at the time of -his death. But in the year 1785 another act passed, by which the -inhabitants of the Northern Neck are exonerated and discharged from -paying composition and quitrents to the commonwealth." But Randolph then -asserted that: "This last act has completely confiscated this property. -It is repugnant to no part of the treaty, with respect to the quitrents -confiscated by the act of 1782." So, continued he, "I ask the Convention -of the free people of Virginia if there can be honesty in rejecting the -government because justice is to be done by it? I beg the honourable -gentleman to lay the objection to his heart." (Elliott, iii, 574-75.) - -[1315] Elliott, iii, 551-62. - -[1316] In summarizing Marshall's speech, it is necessary to collect his -arguments on any given point, and present them consecutively. In -Robertson's (Elliott) report Marshall scatters his points in distracting -fashion. - -[1317] Madison to Hamilton, June 20, 1788; Hamilton MSS., Lib. Cong. - -[1318] The members of the Convention were carefully watched and each -side made, every night, a minute estimate of its votes. - -[1319] Madison to his father, June 20, 1788; _Writings_: Hunt, v, -footnote to 216. - -[1320] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong. - -[1321] _Ib._ - -[1322] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong. - -[1323] Elliott, iii, 576. - -[1324] Elliott, iii, 577-80. - -[1325] Grigsby, i, 300. See Washington's letters to Stephen during the -year of Marshall's birth, when Stephen, under Washington, was fighting -the French and Indians. (_Writings_: Ford, i, 227, 322, 332, 360; also -_Proceedings_, Council of War, Oct. 30, 1756; _ib._, 364-71; in which -Colonel Adam Stephen was presiding officer.) - -[1326] Elliott, iii, 580. - -[1327] Elliott, iii, 581-82. - -[1328] Elliott, iii, 585-86. - -[1329] "Virginia is the only instance among the ratifying states in -which the Politics of the Legislature are at variance with the sense of -the people, expressed by their Representatives in Convention." (Madison -to Washington, Nov. 5, 1788; _Writings_: Hunt, v, 302.) - -[1330] Grigsby, i, 307. - -[1331] The two amazing speeches which Henry made that day should be -taken together. While both were inspired by what happened on the floor, -yet they are in reality one. The reports give no idea of the tremendous -effect which those who heard Henry tell us these speeches had. - -[1332] Grigsby, i, 307-08. - -[1333] Henry's amendments were practically the same as those which the -Convention finally adopted as recommendations subsequent to ratification -instead of previous amendment on which ratification was conditioned. - -[1334] Elliott, iii, 587-96. - -[1335] Elliott, iii, 625. This extract is badly mangled. The reporter -confesses that he could take only a little of Henry's peroration. -Elliott's reprint of Robertson's reports gives scarcely a suggestion of -its dramatic appeal. We are indebted to Grigsby's patient work in -collecting from eye and ear witnesses first-hand accounts, for a -reasonably accurate description of the scene. - -[1336] Grigsby, i, 316-17; also Wirt, 313; Henry, ii, 370-71; and -Conway, 113. - -[1337] Grigsby, i, 316-17. - -[1338] Grigsby, i, 317. - -[1339] Very few of the Constitutionalists wanted any amendments; and -Madison sorrowfully offered in Congress the following year those that -were reluctantly adopted. See vol. II, chap. II, of this work. - -[1340] Elliott, iii, 627. - -[1341] Grigsby, i, 323-29. - -[1342] _Ib._, 328. - -[1343] _Ib._, 332. - -[1344] Elliott, iii, 644-49. - -[1345] Henry, ii, 377. "At least ten members voted, either in -disobedience of positive instructions of their constituents, or in -defiance of their well known opinions." (Grigsby, i, 41.) - -[1346] Scott, 235-38. - -[1347] Elliott, iii, 616. Madison frankly admitted that only the -prominence of the framers of the Constitution secured even a -consideration of it by many of its warmest friends, much less by the -people. "Had the Constitution been framed and recommended by an obscure -individual," wrote Madison, "instead of a body possessing public respect -and confidence, there cannot be a doubt, that, although it would have -stood in the identical words, it would have commanded little attention -from those who now admire its wisdom." (Madison to Randolph, Jan. 10, -1788; _Writings_: Hunt, v, 81.) - -[1348] Grigsby, i, footnote to 110. - -[1349] Elliott, iii, 652. - -[1350] Elliott, iii. 653-63. - -[1351] _Ib._, 659-61. - -[1352] Clinton's letter was not read, however, because all the members -of the Legislature had gone to hear Henry's last great speech. (Conway, -112.) - -[1353] Conway, 114; Henry, ii, 363. - -[1354] For Mason's resolutions and a careful review of the incident, see -Rowland, ii, 274-80. - -[1355] Henry, ii, 377. - -[1356] _Southern Literary Messenger_, i, 332; also quoted in Rowland, -ii, 274. - -[1357] Washington to Pinckney, June 28, 1788; _Writings_: Ford, xi, 285. - -[1358] Washington to Jefferson, Aug. 31, 1788; _ib._, 321. - - -END OF VOLUME I - - - - -APPENDIX - - - - -I - -WILL OF THOMAS MARSHALL, "CARPENTER" - - -In the Name of God Amen! I, Thomas Marshall of the County of -Westmoreland of Washington Parish, Carpenter, being very weak but of -perfect memory thanks be to God for it doth ordain this my last will and -testament in manner and form following, first I give and bequeath my -soul into the hands of my blessed Creator & Redeemer hoping through -meritts of my blessed Saviour to receive full pardon and remission of -all my sins and my body to the Earth to be decently bur-yed according to -the discretion of my Executrix which hereafter shall be named. Imps. I -make and ordain my well beloved wife Martha Marshall to be my full and -whole Executrix--Item, I will that my estate shall remain in the hands -of my wife as long as she remain single but in case she marrys then she -is to have her lawful part & the rest to be taken out of her hands -equally to be divided among my children--Item, I will that if my wife -marry, that David Brown Senr. and Jno. Brown to be guardians over my -children and to take the estate in their hands bringing it to -appraisement giving in good security to what it is valued and to pay -my children their dues as they shall come to age. Item--I will that -Elizabeth Rosser is to have a heifer delivered by my wife called -White-Belly to be delivered as soon as I am deceast--Item, I will that -my son William Marshall shall have my plantation as soon as he comes to -age to him and his heirs forever, but in case that my son William die -before he comes to age or die without issue then my plantation is to -fall to the next heir apparent at law. - - THOMAS MARSHALL (Seal) - - Test EDW: TAYLOR, JOHN HEARFORD, - JOHN TAYLOR. - - { At a Court held for the said County the - WESTMORLD: SS. { 31st day of May 1704. - -The last will and testament of Thomas Marshall within written was proved -by the oaths of John Oxford and John Taylor two of the witnesses thereto -subscribed and a Probat thereof granted to Martha Marshall his relict -and Executrix therein named. - - Test - IA: WESTCOMB Cler. Com. Ped. - - Record aty: sexto die Juny: - 1704. Pr. - _Eundm Clerum._ - - A Copy. Teste: - ALBERT STUART, Clerk. - By: - F. F. CHANDLER, Deputy Clerk. - - [A Copy. Will of Thomas Marshall. Recorded in the Clerk's Office of - the Circuit Court of Westmoreland County, in Deed and Will Book no. 3 - at page 232 _et seq._] - - - - -II - -WILL OF JOHN MARSHALL "OF THE FOREST" - - The last will and testament of John Marshall being very sick and - weak but of perfect mind and memory is as followeth. - - -First of all I give and recommend my soul to God that gave it and my -Body to the ground to be buried in a Christian like and Discent manner -at the Discretion of my Executors hereafter mentioned? Item I give and -bequeath unto my beloved daughter Sarah Lovell one negro girl named -Rachel now in possession of Robert Lovell. Item I give and bequeath unto -my beloved daughter Ann Smith one negro boy named Danniel now in -possession of Augustine Smith. Item I give and bequeath unto my beloved -daughter Lize Smith one negro boy named Will now in possession of John -Smith. Item I give and bequeath unto my well beloved wife Elizabeth -Marshall one negro fellow named Joe and one negro woman named Cate and -one negro woman named pen after Delivering the first child next born of -her Body unto my son John until which time she shall remain in the -possession of my wife Likewise I leave my Corn and meat to remain -unappraised for the use of my wife and children also I give and bequeath -unto my wife one Gray mair named beauty and side saddle also six hogs -also I leave her the use of my land During her widowhood, and afterwards -to fall to my son Thomas Marshall and his heirs forever. Item I leave my -Tobacco to pay my Debts and if any be over for the clothing of my small -children. Item I give and bequeath unto my well Beloved son Thomas -Marshall one negro woman named hanno and one negroe child named Jacob? -Item I give and bequeathe unto my well beloved son John Marshall one -negroe fellow named George and one negroe child named Nan. Item. I give -and bequeathe unto my beloved son Wm. Marshall one negro woman named -Sall and one negro boy named Hanable to remain in the possession of his -mother until he come to the age of twenty years. Item I give and -Bequeath unto my Beloved son Abraham Marshall one negro boy named Jim -and one negroe girl named bett to remain in the possession of his mother -until he come to the age of twenty years. Item I give and Bequeath unto -my Beloved daughter Mary Marshall one negro girl named Cate and negro -boy Gus to remain in possession of her mother until she come to the age -of Eighteen years or until marriage. Item, I give and Bequeath unto my -beloved Daughter Peggy Marshall one negro boy named Joshua and one negro -girl named Liz to remain in possession of her mother until she come to -the age of Eighteen or until marriage! Item. I leave my personal Estate -Except the legacies abovementioned to be equally Divided Between my wife -and six children last above mentioned. Item I constitute and appoint my -wife and my two sons Thos. Marshall and John Marshall Executors of this -my last will & testament In witness hereof I have hereunto set my hand -and fixed my seal this first day of April One thousand seven hundred and -fifty two. - - JOHN MARSHALL (Seal) - Interlined before assigned. - - BENJAMIN RALLINS } - WILLIAM HOUSTON } - AUGUSTINE SMITH } - - { At a Court held for the said County the - WESTMORLAND SCT. { 26th day of May 1752. - -This Last will and testament of John Marshall decd. was presented into -Court by Eliza. his relict and Thomas Marshall two of his Executors -therein named who made oath thereto and being proved by the oaths of -Benja. Rallings and Augustine Smith two of the witnesses thereto is -admitted to record, and upon the motion of the said Eliza. & Thos. and -their performing what the Law in such cases require Certificate is -granted them for obtaining a probate thereof in due form. - - Test - GEORGE LEE C. C. C. W. - - Recorded the 22d. day of June 1752. - Per - G. L. C. C. W. C. - - A Copy. Teste: - - FRANK STUART, Clerk of the Circuit Court of Westmoreland County, - State of Virginia. - - [A copy. John Marshall's Will. Recorded in the Clerk's Office of - Westmoreland County, State of Virginia, in Deeds and Wills, no. 11, - at page 419 _et seq._] - - - - -III - -DEED OF WILLIAM MARSHALL TO JOHN MARSHALL "OF THE FOREST" - - -This indenture made the 23d day of October in ye first year of ye reign -of our sovereign Lord George ye 2d. by ye. grace of God of Great -Brittain France & Ireland King defendr. of ye faith &c. and in ye year -of our Lord God one thousand seven hundred & twenty seven, between -William Marshall of ye. County of King & Queen in ye. Colony of Virginia -planter of the one part & John Marshall of ye. County of Westmoreland -Virginia of the other part: WITNESSETH that ye sd. William Marshall for -and in consideration of ye. sum of five shillings sterling money of -England to him in hand paid before ye sealing & delivery hereof ye. -receipt whereof he doth hereby acknowledge & thereof & of every part -thereof doth hereby acquit & discharge ye. sd John Marshall his heirs -Exectrs & administrators by these presents, hath granted bargained & -sold & doth hereby grant bargain & sell John Marshall his heirs Exectrs -administrs & assigns all that tract or parsel of land (except ye parsel -of land wch was sold out of it to Michael Hulburt) scitute lying & being -in Westmoreland County in Washington parish on or near Appamattox Creek -& being part of a tract of land containing 1200 acres formerly granted -to Jno: Washington & Tho: Pope gents by Patent dated the 4th Septbr. -1661 & by them lost for want of seating & since granted to Collo. -Nicholas Spencer by Ordr. Genll. Court dated Septbr. ye 21st 1668 & by -ye said Spencer assign'd to ye. sd. Jno: Washington ye 9th of Octobr. -1669 which sd. two hundred acres was conveyed & sold to Thomas Marshall -by Francis Wright & afterwards acknowledged in Court by John Wright ye. -28th day of May 1707 which sd two hundred acres of land be ye. same more -or less and bounded as follows beginning at a black Oak standing in ye. -southermost line of ye sd. 1200 acres & being a corner tree of a line -that divideth this two hundred acres from One hundred acres of Michael -Halbarts extending along ye. sd southermost lines west two hundred poles -to a marked red Oak, thence north 160 poles to another marked red Oak -thence east 200 poles to a black Oak of ye sd. Halberts to ye place it -began, with all houses outhouses Orchards water water courses woods -under woods timbers & all other things thereunto belonging with the -revertion & revertions remainder & remainders rents issues & yearly -profits & every part & parcell thereof. To have and to hold ye. sd. land -& premises unto ye. sd John Marshall his heirs Executors Administrs & -assignes from ye. day of ye date thereof for & during & untill the full -end & term of six months from thence next ensuing fully to be compleat & -ended to ye. end that by virtue thereof & of the statutes for -transferring uses into possessions ye. sd John Marshall might be in -actual possession of ye premises & might be enabled to take and accept -of a grant release of the same to him ye. sd John Marshall his heires & -assignes forever. In Witness whereof the parties to these present -Indentures interchangeably have set----hands & seals ye. day & year -first above written. - - WM MARSHALL (seal) - - Signd. Seald & d'd in sight & presence of-- } - FRANCIS LACON, JANE LACON, THOMAS THOMPSON } - - WESTMORLD. SS. } At a Court held for the sd. County the 27th - } day of March 1728. - -William Marshall personally acknowledged this lease of land by him -passed to John Marshall to be his proper act and deed, which at the -instance of the sd. John Marshall is admitted to record. - - Test - G. TURBERVILE, C.C.W. - - Recorded the 29th day of March 1728. - Pr. - G. T. C. C. W. - - A Copy. Teste: - - FRANK STUART, Clerk of the Circuit Court of Westmoreland County, - State of Virginia. - - [A copy. William Marshall to John Marshall. Deed. Recorded in the - Clerk's Office of Westmoreland County, State of Virginia, in Deeds - and Wills, no. 8-1, at page 276.] - - - - -IV - -MEMORIAL OF THOMAS MARSHALL FOR MILITARY EMOLUMENTS - - To the Honorable the Speaker and members of the house of - Delegates, the Memorial of Thomas Marshall humbly sheweth. - - -That your Memorialist in Aug^t 1775 was appointed Major to the first -minute Battalion raisd within this Commonwealth and early in October the -same year enterd into actual service in which he continued during the -following winter campaign. That while your memorialist commanded at the -Great Bridge he was appointed Major to the 3^d Virginia Continental -Regim^t he did not however retire from service but retaind his command -and continued at his post till the latter end of March 1776 when the -troops under his command were relieved by those of the continent rais'd -in this State, by which time the 3^d Virginia Regim^t was rais'd and -your Memorialist immediately called on to take command in it. That in -Aug^t 1776 he together with the regiment to which he belonged in -obedience to the orders they had rec^d began their march to New York, -where they join'd the Grand-Army. That your Memorialist continued in -hard and unremitting service from this time till the close of the -campaign of 1777. That in the latter end of November 1777 your -Memorialist was informed by an official letter from the then Governor, -of his haveing been appointed by the General Assembly of Virginia to the -command of the State regiment of Artillery;--a command he was only -induced to take by a preference he ever felt for Artillery Service. That -your Memorialist however retain'd his command and continued his service -in the Northern Army till the end of the Campaign when the Troops were -ordered into winter quarters. That your Memorialist then return'd to -Virginia and about the middle of January following took command of his -Regim^t of Artillery, which command he rataind till the 26th of February -1781 at which time, the term of enlistment of most of the soldiers of -the Regim^t having expired, they were discharged and your Memorialist -became a reduced officer. Your Memorialist conceived from the Laws -existing at the time he enter'd into the particular service of this -State and from the different acts respecting the State Troops which have -since passd the Legislature, that he should be intitled to every -emolument to which he would have had a just claim had he remaind in the -Continental Service. If however only particular discriptions of State -Officers are to receive such emoluments as Continental are intitled to, -your Memorialist humbly presumes to hope that his haveing made three of -the severest campaigns in the last war before he took command of the -State Regim^t of Artillery, his haveing rendered, as he trusts, some -services as commanding officer of that Regiment, his haveing remaind in -service till there was no longer a command for him, his having held -himself in readiness to return to service, had his regiment been -recruited, give him as fair a claim to military emoluments as any -officer who has been in the particular service of this State. Your -memorialist therefore humbly prays that your honorable house will take -his services into consideration and allow him those emoluments which may -be given to other State Officers whose services may not be superior to -his. - - T. MARSHALL. - - A true copy - H. R. MCILWAIN, - State Librarian. - June 20, 1916. - - [Marshalls Pet^n Nov. 25th 1784 Referred to Propositions Props. - discharged and ref^d to whole on Bill for giving Commutation to - Officers of 1st and 2d State Regiments.] - - - - -WORKS CITED IN THIS VOLUME - - - - -WORKS CITED IN THIS VOLUME - -_The material given in parentheses and following certain titles -indicates the form in which those titles have been cited in the -footnotes._ - - -ADAMS, CHARLES FRANCIS, _editor_. _See_ Adams, John. Works. - -ADAMS, HENRY. The Life of Albert Gallatin. Philadelphia. 1879. (Adams: -_Gallatin_.) - - _See also_ Gallatin, Albert. Writings. - -ADAMS, JOHN. Works. Edited by Charles Francis Adams. 10 vols. Boston. -1856. (_Works_: Adams.) - ----- Old Family Letters. Copied from the originals for Alexander Biddle. -Philadelphia. 1892. _(Old Family Letters.)_ - -ALLEN, ETHAN. Narrative of the Capture of Ticonderoga, and his Captivity -in England, written by himself. Burlington. 1854. (Ethan Allen.) - -ALLEN, GARDNER WELD. A Naval History of the American Revolution. 2 vols. -New York. 1913. (Allen: _Naval History of Revolution_.) - ----- Our Navy and the Barbary Corsairs, Boston. 1905. (Allen: _Our Navy -and the Barbary Corsairs_.) - -AMBLER, CHARLES HENRY. Sectionalism in Virginia, from 1776 to 1861. -Chicago. 1910. (Ambler.) - -_American Historical and Literary Curiosities._ _See_ Smith, John Jay, -and Watson, John Fanning, _joint editors_. - -_American Historical Review._ Managing editor, J. Franklin Jameson. -Vols. 1-21. New York. 1896-1916. _(Amer. Hist. Rev.)_ - -_American Journal of Education._ Edited by Henry Barnard. Vols. 1-30. -Hartford. 1856-80. - -_American Museum_ or Repository of Ancient and Modern Fugitive Pieces, -Philadelphia. 1788. _(American Museum.)_ - -ANBUREY, THOMAS. Travels through the Interior Parts of America, in a -Series of Letters, by An Officer. 2 vols. London. 1789. (Anburey.) - -AVERY, ELROY MCKENDREE. 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[9th Edition.] Baltimore. -1831. (Wirt: _British Spy_.) - ----- Sketches of the Life and Character of Patrick Henry. Philadelphia. -1818. (Wirt.) - -WISE, JENNINGS CROPPER. Ye Kingdome of Accawmacke, or the Eastern Shore -of Virginia, in the Seventeenth Century. Richmond. 1911. (Wise.) - -WOLCOTT, OLIVER. Memoirs of the Administrations of Washington and John -Adams. Edited from the papers of Oliver Wolcott, by George Gibbs. 2 -vols. New York. 1846. (Gibbs.) - -WOOD, WILLIAM. The Fight for Canada. Westminster, 1904. (Wood.) - - - * * * * * - - -Transcriber's Notes: - -1. Passages in italics are surrounded by _underscores_. - -2. Obvious errors in spelling and punctuation have been corrected. - -3. Footnotes have been renumbered and moved from the page end to the -end of their respective chapters. - -4. Images have been moved from the middle of a paragraph to the closest -paragraph break. - -5. Certain words use an oe ligature in the original. - -6. Carat character (^) followed by a single letter or a set of letters -in curly brackets is indicative of subscript in the original book. - - - - - - -End of the Project Gutenberg EBook of The Life of John Marshall (Volume 1 of -4), by Albert J. 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