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Full text of "The life of John Marshall"

JOHN MARSHALL AT 43 
From a miniature painted in Paris 



THE LIFE 

OP 

JOHN MARSHALL 



BY 

ALBERT J. BEVERIDGE 



Volume I 

FRONTIERSMAN, SOLDIER 
LAWMAKER 

1755 _ 1788 



/ 




BOSTON AND NEW YORK 
HOUGHTON MIFFLIN COMPANY 

(STfre fiitoetjH&e prc£? Cambridge 



COPYRIGHT, 1916, BY ALBERT J. BEVERIDGE 
ALL RIGHTS RESERVED 



APR 2 4 1987 
i/SRARtf% 



70314G1201 



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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, en- 
comium 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, indis- 
tinctly, 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 Mar- 
shall 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 Mar- 



vi PREFACE 

shall the frontiersman, soldier, legislator, lawyer, 
politician, diplomat, and statesman, and of the con- 
ditions he faced in each of these capacities, is essen- 
tial to a comprehension of Marshall the construc- 
tive jurist and of the problems he solved. 

In order to make clear the significance of Mar- 
shall'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 his- 
torical 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 Jeffer- 
son that a faithful account of the one requires a care- 
ful examination of the other. 

Vitally important in their effect upon the conduct 
and attitude of Marshall and of the leading charac- 
ters 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. 



PREFACE vii 

The present volumes narrate the life of John Mar- 
shall before his epochal labors as Chief Justice be- 
gan. 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. W T oodburn, of In- 
diana 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. 
W'orthington C. Ford, of the Massachusetts Histori- 
cal 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 



< 



viii PREFACE 

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 His- 
torical 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, Assist- 
ant 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 



PREFACE ix 

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 in- 
debted to Mrs. John K. Mason, of Richmond. A 
large number of original and unpublished letters of 
Marshall were furnished me by Mr. James M. Mar- 
shall, of Front Royal, Virginia, Mr. Robert Y. Con- 
rad, 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 Berry ville, Virginia; Dr. Samuel Eliot 
Morison, of Boston, Massachusetts, and Professor 
Charles William Dabney, of Cincinnati, Ohio. Com- 
plete 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, neces- 
sarily, have been based on unsupported tradition. 

Among the many who have aided me, Judge James 
Keith, of Richmond, Virginia, until recently Presi- 
dent of the Court of Appeals of Virginia; Judge J. K. 
M. Norton and the late Miss Nannie Burwell Nor- 
ton of Alexandria, Virginia ; Mr. William Marshall 
Bullitt, of Louisville, Kentucky; Mr. Thomas Mar- 
shall Smith, of Baltimore, Maryland; Mr. and Mrs. 
Alexander H. Sands; Mr. W. P. Taylor and Dr. H. 



x PREFACE 

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 Mar- 
shall, 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 Ran- 
dolph, Mary Isham, and Mary Randolph Keith; 
and to Mr. Charles Edward Marshall, of Glen Mary, 
Kentucky, for permission to photograph the por- 
trait of Colonel Thomas Marshall. 

The large number of citations has made abbrevi- 
ations necessary. At the end of each volume will 
be found a careful explanation of references, giv- 
ing 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 — Mar- 
shall'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 backwoods- 
men — Their character — Superiority of an occasional frontier 
family — The Marshalls of this class — The illustrious men pro- 
duced 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 train- 
ing 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 Wash- 
ington 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. 



xii CONTENTS 



m. 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 Conti- 
nental service, the father as major, the son as lieutenant — Condi- 
tion of the army — Confusion of authority — Unreliability of mili- 
tia "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" — Of- 
ficers resign, privates desert — The harsh discipline required: men 
whipped, hanged, aDd shot — Impression on Marshall — He is 
promoted to be captain-lieutenant — The march through dis- 
affected Philadelphia — Marshall one of picked men forming the 
light infantry — Iron Hill — The battle of the Brandywine — Mar- 
shall's father and his Virginians prevent entire disaster — Mar- 
shall'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 "al- 
most 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 opin- 
ion" — Further decline of American fortunes — Duche's letter to 
Washington: "How fruitless the expense of blood" — Washington 
faces the British — The impending battle — Marshall's vivid de- 
scription ■ — The British withdraw. 



IV VALLEY FORGE AND AFTER . . . . .108 

The bitter winter of 1777 — The British in Philadelphia: abund- 
ance of provisions, warm and comfortable quarters, social gaye- 
ties, revels of officers and men — The Americans at Valley Forge, 
"the most celebrated encampment in the world's history": star- 
vation and nakedness — Surgeon Waldo's diary of "camp-life": 
"I '11 live like a Chameleon upon Air" — Waldo's description of sol- 
diers' 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 shame- 
ful 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 at- 
tack Philadelphia — The amazing inferiority of Congress — Ablest 



CONTENTS xiii 

men refuse to attend — Washington's pathetic letter on the sub- 
ject: "Send your ablest men to Congress; Where is Jefferson" — 
Talk of the soldiers at Valley Forge — Jefferson in the Virginia Leg- 
islature — Comparison of Marshall and Jefferson at this period — 
Marshall appointed Deputy Judge Advocate of the army — Burna- 
by'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 regi- 
ment: "Silver Heels" Marshall — The Alliance with the King of 
France — Rejoicing of the Americans at Valley Forge — Washing- 
ton 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 strong- 
hold — 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 Marshal] 
and the people — Comment of Virginia women — Inquiry in Legis- 
lature as to Jefferson's conduct — Effect of Marshall's army ex- 
perience on his thinking — The roots of his great Nationalist 
opinions run back to Valley Forge. 

V. MARRIAGE AND LAW 7 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 dis- 
appointment 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 — Mar- 
shall goes to William and Mary College for a few weeks — Descrip- 
tion 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 — Mar- 
shall's account of his love-making — His sister-in-law's description 



xiv CONTENTS 

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" — Fi- 
nancial condition of Marshall's father at this time — Lack of ready 
money everywhere — ■ Marshall's account — He sets up housekeep- 
ing 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 pop- 
ularity and his father's influence secure his election — He is ap- 
pointed 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 re- 
markable error — He is elected member of Council of State — Pen- 
dleton criticizes the elevation of Marshall — Work as member of 
Council — Resigns from Council because of criticism of judges 

— Seeks and secures reelection 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 — Mar- 
shall's languid interest in the subject — Great question of the Brit- 
ish 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 liber- 
ties of the people" — The debts of the Confederation — Madison's 
extradition bill — Contempt of the pioneers for treaties — Set- 
tlers' 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 — 



CONTENTS rv 

Steady change in Marshall's ideas — Mercantile and financial in- 
terests 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 resume of conditions — Revolution- 
ary 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 Washing- 
ton — Travel and transportation in Virginia — Ruinous effect on 
commerce — Chastellux lost on journey to Monticello to visit Jef- 
ferson — Talleyrand's description of country — Slowness of mails 
— iThree weeks or a month and sometimes two months required be- 
tween Virginia and New York — Mail several months in reaching 
interior towns — News that Massachusetts had ratified the Consti- 
tution eight days in reaching New York — Ocean mail service — 
letters opened by postmasters or carriers — Scarcity of newspapers 

— Their untr\stworthiness — 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 in- 
dividualism — The successive waves of settlers — Their ignor- 
ance, improvidence, and lack of social ideals — Habits and charac- 
teristics 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. 

VIIL 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 — Impossi- 
bility of correcting falsehoods told to the people — Popular credu- 
lity — 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: 
JSdanus Burke's pamphlet; Mirabeau's pamphlet; Jefferson's 



xvi CONTENTS 

denunciation — Marshall and his father members of the Cin- 
cinnati — Effect upon him of the extravagant abuse of this patri- 
otic order — Popular desire for general division of property and re- 
pudiation of debts — Madison's bitter comment — Jay on popular 
greed and "impatience of government" — Paper money — Popu- 
lar idea of money — Shays's Rebellion — Marshall's analysis of 
its objects — Knox's report of it — Madison comes to the conclu- 
sion 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 lib- 
erty 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 them- 
selves — Views of Washington, Jay, and Madison — ■ State Sov- 
ereignty the shield of turmoil and baseness — Efforts of commer- 
cial and financial interests produce the Constitution — Madison 
wants a National Government with power of veto on all State laws 
44 whatsoever" — Jefferson thinks the Articles of Confederation "a 
wonderfully perfect instrument" — He opposes a "strong gov- 
ernment " — Is apprehensive of the Constitution — Thinks de- 
struction 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 Constitu- 
tion. 

IX. THE STRUGGLE FOR RATIFICATION . . .319 

The historic Convention of 1788 assembles — Richmond at that 
time — General ignorance of the Constitution — Even most mem- 
bers 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 revolu- 
tionary 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 Constitu- 
tion — 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 



CONTENTS xvii 

Massachusetts — Conciliatory tactics of Constitutionalists — 
Upper classes for Constitution — Common people generally op- 
posed — 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 major- 
ity: one hundred and sixty-eight vote against ratification — 
Methods of Constitutionalists after ratification — Widgery's amus- 
ing account: hogsheads of rum — Gerry's lament — ■ Bribery charged 
— New Hampshire almost rejects Constitution — Convention ad- 
journed 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. LN THE GREAT CONVENTION . . . .357 

Virginia the deciding State — ■ Anxiety of Constitutionalists in 
other States- -Hamilton writes Madison: "No hope unless Vir- 
ginia ratifies" — Economic and political importance of Virginia — 
Extreme effort of both sides to elect members to the Convention — 
Preelection methods of the Constitutionalists — They capture Ran- 
dolph — Marshall elected from opposition constituency — ■ Preelec- 
tion 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 par- 
liamentary tactics — Constitutionalists take advantage of it: the 
Constitution to be debated clause by clause — Analysis of the op- 
posing forces: an economic class struggle, Nationalism against pro- 
vincialism — 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 man- 
ner 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-Constitu- 
tionalists 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 gov* 



xviii CONTENTS 

ernment 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 sep- 
arated us from Great Britain" — The proposed National Govern- 
ment 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 re- 
plies — 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 Mor- 
ris and Robert Morris for the Constitutionalists and Eleazer Os- 
wald 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 Consti- 
tutionalists — Description of him: badly dressed, poetic-looking, 
"habits convivial almost to excess" — Best-liked man in the Con- 
vention; considered an orator — Marshall's speech: Constitution- 
alists 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 Consti- 
tution — 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 "; 



CONTENTS xix 

Henry's vision of the West — Tremendous effect on the Conven- 
tion — 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 cen- 
turies 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 — Pen- 
dleton expounds the Judiciary clause — Mason attacks it — His 
charge as to secret purpose of many Constitutionalists — His ex- 
treme courtesy causes him again to make a tactical error — He refers 
to the Fairfax grant — A clever appeal to members from the Nor- 
thern 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 pre- 
pared — '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 unconstitu- 
tional law the National Courts "would declare it void"; they 
alone the only "protection from an infringement of the Constitu- 
tion"; 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 argu- 
ment on the Fairfax title; "what security have you for jus- 
tice? 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 — Con- 
test 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 explan- 



xx CONTENTS 

ation — Debate draws to a close — Mason intimates forcible re- 
sistance to the Constitution — Lee rebukes him — The Consti- 
tutionalists 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 Constitu- 
tionalists — Henry admits defeat — The Virginia amendments — 
Absurdity of some of them — Necessary to secure ratification — 
Marshall on the committee to report amendments — Constitu- 
tionalists 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 — Wash- 
ington's account: " Impossible for anybody not on the spot to con- 
ceive 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 Military 

Emoluments 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 Rich- 
mond, 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 Balti- 
more, 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 genera- 
tions 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 WIL- 
LIAM RANDOLPH 10 

From a copy in the possession of Mr. Douglas H. Thomas, of Bal- 
timore, 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. 



xxii ILLUSTRATIONS 

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 build- 
ing 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 Mar- 
shall, son of the Chief Justice. The name of the painter is unknown. 

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 pub- 
lished. 

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 dissimilar- 
ity 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 Ar- 
chives 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 Har- 
vie, of Richmond. The signature of Thomas Marshall is from the origi- 
nal 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 reelection to the legis- 
lature. 



ILLUSTRATIONS xxiii 

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. 

PATRICK HENRY 470 

From a copy (in the possession of the Westmoreland Club, of Rich- 
mond) 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. 0. 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 Revo- 
lution. 
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. 



xxvi LIST OF ABBREVIATED TITLES 

Writings: Conway. See Paine, Thomas. Writings. Edited by Mon- 

cure 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 through- 
out 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 

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.) 

a Marshall, i, 12-13; Campbell, 469-71. "The Colonial contingents 
were not nearly sufficient either in quantity or quality." (Wood, 40.) 



2 JOHN MARSHALL 



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 veter- 
ans, 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 Brad- 
dock and his red-coated regiments landed in Vir- 
ginia, 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 Brit- 
ish grenadiers invincible? Was not Edward Brad- 
dock an experienced commander, whose bravery was 
the toast of his fellow officers? 1 So the colonists 
had been told, and so they believed. 

They forgave the rudeness of their British cham- 
pions; and Braddock marched away into the wilder- 
ness carrying with him the unquestioning confidence 
of the people. 2 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 

1 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.) 

2 " The British troops had been looked upon as invincible, and prep- 
arations had been made in Philadelphia for the celebration of Brad- 
dock's anticipated victory." (lb., 186.) 



ANCESTRY AND ENVIRONMENT S 

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/' testi- 
fies Washington, "to make this campaign by General 
Braddock, . . . conceiving . . . that the . . . knowl- 
edge I have ... of the country, Indians, &c. . . . 
might be useful to him." x 

So through the ancient and unbroken forests 
Braddock made his slow and painful way. 2 Weeks 
passed; then months. 3 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. 4 * 

Time has not dulled the vivid picture of that dis- 
aster. The golden sunshine of that July day; the 
pleasant murmur of the waters of the Monongahela; 
the silent and somber forests; the steady tramp, 

1 Washington to Robinson, April 20, 1755; Writings: Ford, i, 147. 

2 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." (76.) Cumberland "is far re- 
mote 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.) 

3 It took Braddock three weeks to march from Alexandria to Cum- 
berland. He was two months and nineteen days on the way from 
Alexandria to the place of his defeat. (lb., 138.) 

4 "All America watched his [Braddock's] advanoe." (Wood, 61.) 



4 JOHN MARSHALL 

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 Brit- 
ish troops fired at hidden antagonists; the panic; the 
rout; the pursuit; the slaughter; the crushing, humil- 
iating defeat! L 

|* Most of the British officers were killed or wounded 
as they vainly tried to halt the stampede. 2 Brad- 
dock himself received a mortal hurt. 3 Raging with 
battle lust, furious at what he felt was the stupidity 
and cowardice of the British regulars, 4 the youthful 
Washington rode among the fear-frenzied English- 
men, striving to save the day. Two horses were shot 
under him. Four bullets rent his uniform. 5 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; 

1 For best accounts of Braddock's defeat see Bradley, 75-107; 
Lowdermilk, 156-63 ; and Marshall, i, 7-10. 

2 "Of one hundred and sixty officers, only six escaped." (Lowder- 
milk, footnote to 175.) 

* Braddock had five horses killed under him. {lb., 161.) 

4 "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.) 

8 Washington to John A. Washington, July 18, 1755. (76., 176.) 



ANCESTRY AND ENVIRONMENT 5 

and, fighting behind trees and rocks, were an ever- 
moving rampart of fire that saved the flying rem- 
nants of the English troops. But for Washington and 
his rangers, Braddock's whole force would have been 
annihilated. 1 Colonel Dunbar and his fifteen hun- 
dred British regulars, who had been left a short 
distance behind as a reserve, made off to Philadel- 
phia as fast as their panic-winged feet could carry 
them. 2 

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. 3 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 im- 
pressive because it was so abrupt, unexpected, and 
dramatic, that the red-coated professional soldiers 
were not the unconquerable warriors the colonists 

1 "The Virginia companies behaved like men and died like soldiers 
... of three companies . . . scarce thirty were left alive." (Washing- 
ton to Dinwiddie, July 18, 1755; Writings: Ford, i, 173-74.) 

2 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 Camp- 
bell, 472-81. For French account see Hart, ii, 365-67; also, Sargent: 
History of Braddock's Expedition. 

3 Washington to John A. Washington, July 18, 1755; Writings: 
Ford, i, 175. 



* JOHN MARSHALL 

had been told that they were. 1 From colonial "man- 
sion" to log cabin, from the provincial "capitals' 
to the mean and exposed frontier settlements, Brad 
dock's defeat sowed the seed of the idea that Ameri- 
cans must depend upon themselves. 2 

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, 3 so Braddock's defeat was the inception of 
that same epoch in its lesson of American military 
self-dependence. 4 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. 5 

Close upon the heels of this epoch-making event, 
John Marshall came into the world. He was born in 

1 "The Defeat of Braddock was totally unlooked for, and it excited 
the most painful surprise." (Lowdermilk, 186.) 

2 "After Braddock's defeat, the Colonists jumped to the conclu* 
sion that all regulars were useless.'* (Wood, 40.) 

3 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. 

4 "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.) 

5 "From that time [Braddock's defeat] forward the Colonists had a 
much less exalted opinion of the valor of the royal troops." (Lowder- 
milk, 186.) The fact that the colonists themselves had been negli- 
gent and incompetent in resisting the French or even the Indians did 
not weaken their newborn faith in their own prowess and their dis- 
trust of British power. 



ANCESTRY AND ENVIRONMENT 7 

a little log cabin in the southern part of what now 
is Fauquier County, Virginia (then a part of Prince 
William), on September 24, 17 55, } 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. 2 

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. 3 Also, as will presently appear, Thomas 
Marshall had for about three years been the com- 
panion of Washington, when acting as his assistant 
in surveying the western part of the Fairfax estate. 4 
From that time forward his attachment to Washing- 
ton amounted to devotion. 5 

Also, he was, like Washington, a fighting man. 6 
It seems strange, therefore, that he did not accom- 

1 Autobiography. 

2 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. 

3 Humphrey Marshall, i, 344-45. Also Binney, in Dillon, iii, 283. 

4 See infra, chap. n. 

8 Humphrey Marshall, i, 344-45. 

6 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, in and iv. 



8 JOHN MARSHALL 

pany his hero in the Braddock expedition. There is, 
indeed, a legend that he did go part of the way. 1 But 
this, like so many stories concerning him, is untrue. 2 
The careful roster, made by Washington of those 
under his command, 3 does not contain the name of 
Thomas Marshall either as officer or private. Be- 
cause 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 what- 
ever befell — these made up the moral and intellec- 
tual atmosphere that surrounded the Marshall cabin 
before and after the coming of Thomas and Mary 

1 Paxton, 20. 

2 A copy of a letter (MS.) to Thomas Marshall from his sister Eliza- 
beth 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 accom- 
pany Braddock. 

3 Washington MSS., Lib. Cong. 



ANCESTRY AND ENVIRONMENT 9 

Marshall's first son. The earliest stories told this 
child of the frontier x must have been those of daring 
and sacrifice and the prevailing that comes of 
them. 

Almost from the home-made cradle John Mar- 
shall was taught the idea of American solidarity. 
Braddock's defeat, the most dramatic military event 
before the Revolution, 2 was, as we have seen, the 
theme of fireside talk; and from this grew, in time, 
the conviction that Americans, if united, 3 could not 
only protect their homes from the savages and 
the French, but defeat, if need be, the British them- 
selves. 4 So thought the Marshalls, father and 
mother; and so they taught their children, as sub- 
sequent 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, Jeffer- 
son's mother and Marshall's grandmother were first 
cousins. The mother of Thomas Jefferson was Jane 

1 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.) 

2 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. 

3 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.) 

4 Wood, 38-42. 



10 JOHN MARSHALL 

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 grand- 
father. 

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 Ran- 
dolph of Roanoke, George Randolph, Secretary of 
War under the Confederate Government, and Gen- 
eral Robert E. Lee, the great Southern military 
leader of the Civil War. 1 

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 con- 
ferred upon one ancestor of Mary Isham, the Ran- 
dolph and Isham families were of the same social 
stratum, both being of the English gentry. 2 The 

1 For these genealogies see Slaughter: Bristol Parish, 212; Lee: Lee 
of Virginia, 406 et seqr, Randall, i, 6-9; Tucker, i, 26. See Meade, 
i, footnote to 138-39, for other descendants of William Randolph 
and Mary Isham. 

2 Va. Mag. Hist, and Biog.> iii, 261; xviii, 86-87. 



ANCESTRY AND ENVIRONMENT 11 

Virginia Randolphs were brilliant in mind, physi- 
cally courageous, commanding in character, gener- 
ally handsome in person, yet often as erratic as 
they were gifted. 

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. 1 

Physically and mentally, Peter Jefferson and 
Thomas Marshall were much alike. Both were 
powerful men of great stature. Both were endowed 
with rare intellectuality. 2 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 con- 

1 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. 

J Morse, 3; and Story, in Dillon, iii, 330. 



12 JOHN MARSHALL 

vivial person, 1 Thomas Marshall seems to have been 
self-contained though adventurous, and of rather 
austere habits. Each became the leading man of 
his county 2 and both were chosen members of the 
House of Burgesses. 3 

On the paternal side," it is impossible to trace 
the origin of either Peter Jefferson 4 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. 5 Little as the value 
of land in Virginia then was, and continued to be for 
three quarters of a century afterwards, 6 this particu- 

1 Randall, i, 7. Peter Jefferson "purchased" four hundred acres 
of land from his "bosom friend," William Randolph, the consider- 
ation as set forth in the deed being, "Henry Weatherbourne's biggest 
bowl of arrack punch"! (lb.) 

2 Peter Jefferson was County Lieutenant of Albemarle. {Va. Mag. 
Hist, and Biog. y xxiii, 173-75.) Thomas Marshall was Sheriff of Fau- 
quier. 

3 Randall, i, 12-13; and see infra, chap. n. 4 Tucker, i, 26. 
6 Records of Westmoreland County, Deeds and Wills, viii, 1, 276. 
6 lb. 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, 



ANCESTRY AND ENVIRONMENT 13 

lar 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" * 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 af- 
terwards to fall to my son Thomas Marshall and 
his heirs forever." 2 One year later the widow, Eliz- 
abeth Marshall, deeded half of this two hundred 
acres to her son Thomas Marshall. 3 

Deputy Clerk of Westmoreland County, to author, Aug. 26, 1913.) 
In 1730 it was probably worth one dollar per acre. 

1 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 Vir- 
ginia 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." 

* Will of John Marshall "of the forest," made April 1, 1752, pro- 
bated May 26, 1752, and recorded June 22, 1752; Records of West- 
moreland County, Deeds and Wills, xi, 419 et seq. (Appendix II.) 

8 /&., 421. 



U JOHN MARSHALL 

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." * 

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. 2 The fair inference is 
that this W T illiam was the elder brother of John 
"of the forest" and that both were sons of Thomas 
the "carpenter." 

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. 3 It is only positively known that 

1 Autobiography. Marshall gives the ancestry of his wife more fully 
and specifically. See infra, chap. v. 

2 Will of Thomas Marshall, " carpenter," probated May 31, 1704; 
Records of Westmoreland County, Deeds and Wills, iii, 232 et seq. 
(Appendix I.) 

8 Most curiously, precisely this is true of Thomas Jefferson's pa- 
ternal ancestry. 




THOMAS MARSHALL 



ANCESTRY AND ENVIRONMENT 15 

his grandfather was of the common people and of 
moderate means. 1 

1 There is a family tradition that the first of this particular Mar- 
shall 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 genea- 
logical problems upon which he passed judgment, decided that "the 
Marshall family begins absolutely with Thomas Marshall, 'Carpen- 
ter.'" (The Cary Papers, MSS., Va. Hist. Soc. The Virginia Mag- 
azine of History and Biography is soon to publish these valuable 
genealogical papers.) 

v 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 distin- 
guished himself at the siege of Calais in 1558; and finally, the Irish 
captain who fought Cromwell and fled to Virginia as above men- 
tioned. (Paxton, 7 et seq.) 

Senator Humphrey Marshall rejected this story as "a myth sup- 
ported by vanity." (lb.) 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 Auto- 
biography ; indeed, it is almost certain that he never heard of it. In 
constructing this picturesque genealogical theory, the kinship of per- 
sons 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, marSchal 
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." 



16 JOHN MARSHALL 

Concerning his paternal grandmother, nothing 
definitely is established except that she was Elizabeth 
Markham, daughter of Lewis Markham, once Sheriff 
of Westmoreland County. 1 

John Marshall's lineage on his mother's side, how- 
ever, 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 grand- 
There were numerous Marshalls who were officers in the Revolution- 
ary 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 cap- 
tains 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. (76.) 

When Stony Point was taken by Wayne, among the British prison- 
ers 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 simi- 
larity of names, especially one so general as that of Marshall. 

1 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 de- 
serves mention only as showing the absurdity of such myths. Black- 
beard 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. 



ANCESTRY AND ENVIRONMENT 17 

father 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. 1 One of them was 
James Keith, the Prussian field marshal and ablest 
of the officers of Frederick the Great. 2 James Keith, 
a younger son of this distinguished family, was des- 
tined for the Church; 3 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 4 and 
during his remaining years performed his priestly 
duties with rare zeal and devotion. 5 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. 6 

When past middle life the Scottish parson mar- 
ried Mary Isham Randolph, 7 granddaughter of 
William Randolph and Mary Isham. In 1754 their 

1 See Douglas: Peerage of Scotland (1764), 448. Also Burke: 
Peerage (1903), 895; and ib. (1876). This peerage is now extinct. See 
Burke: Extinct Peerages. 

2 For appreciation of this extraordinary man see Carlyle's Frederick 
the Great. 

8 Paxton, 30. 

4 From data furnished by Justice James Keith, President of the 
Court of Appeals of Virginia. 

5 Paxton, 30; and see Meade, ii, 216. 

6 Data furnished by Thomas Marshall Smith of Baltimore, Md. 

7 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 



18 JOHN MARSHALL 

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. 1 

Not only was John Marshall's mother uncom- 
monly well born, but she was more carefully edu- 
cated than most Virginia women of that period. 2 Her 
father received in Aberdeen the precise and methodi- 
cal training of a Scottish college; 3 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 hardi- 
ness of her Scottish ancestry, fortified by the active 
and useful labor which all Virginia women of her 
class at that time performed. 

treatment, only to be reinduced in old age by a fraudulent Enoch 
Arden letter apparently written by the lost love of her youth — sucb 
are some of the incidents with which this story clothes Marshall's 
maternal grandmother. (Paxton, 25-26.) 

1 Autobiography. 

2 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.) 

3 Paxton, 30. Marischal College, Aberdeen, was founded by 
George Keith, Fifth Earl Marischal (1593). 




MARY RANDOLPH KEITH MARSHALL 
(Mrs. Thomas Marshall) 



ANCESTRY AND ENVIRONMENT 19 

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 -improve- 
ment as well as a determination to better their cir- 
cumstances. It appears that Thomas Marshall was 
by nature religiously inclined; * 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 com- 
munity 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, 2 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 

1 See infra, chap. n. When Leeds Parish was organized, we find 
Thomas Marshall its leading vestryman. He was always a stanch 
churchman. 

2 Jones, 35 ; Burnaby, 58. But see Maxwell in William and Mary Col- 
lege Quarterly, xix, 73-103; and see Bruce: Econ., i, 425, 427, 585, 



20 JOHN MARSHALL 

obvious fertilizing materials and methods; new 
spaces were simply cleared. 1 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 thou- 
sands and tens of thousands of acres. 2 Slavery 
was an even more powerful force making for a kind 
of lofty disdain of physical toil among the white 

1 "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.) 

2 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. (Row- 
land, i, 51.) The Carter plantation in 1774 comprised sixty thousand 
acres and Carter owned six hundred negroes. (Fithian, 128.) Com- 
pare 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 Roche- 
foucauld, iii, 124.) For careful account of the extent of great hold- 
ings in the seventeenth century see Wertenbaker: P. and P., 34-35, 
97-99. Jefferson in 1790 owned two hundred slaves and ten thou- 
sand 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.) 



I 



ANCESTRY AND ENVIRONMENT 21 

people. 1 Black slaves were almost as numerous as 
white free men. 2 On the great plantations the negro 
quarters assumed the proportions of villages ; 3 
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, 4 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 mem- 
bers of the first estate. 5 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 com- 

1 Burnaby, 54. 

2 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.) 

3 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.) 

4 Robert Carter was a fine example of this rare type. (See Fith- 
ian, 279-80.) 

6 Burnaby, 53-54 and 59. "The Virginians . . . are an indolent 
haughty people whose thoughts and designs are directed solely to- 
wards 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.) 



22 JOHN MARSHALL 

merce between master and slave," writes Jefferson, 
"is a perpetual exercise of the most boisterous pas- 
sions, 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 him- 
self who can make another labour for him. ... Of 
the proprietors of slaves a very small proportion 
indeed are ever seen to labour." x 

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, pom- 
pous, 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." 2 

From this soil sprang a growth of habits as nox- 
ious as it was luxuriant. Amusements to break the 
monotony of unemployed daily existence took the 
form of horse-racing, cock-fighting, and gambling. 3 

1 "Notes on Virginia"; Works: Ford, iv, 82-83. See La Roche- 
foucauld, iii, p. 161, on Jefferson's slaves. 

2 Jefferson to Chastellux, Sept. 2, 1785; Thomas Jefferson Corre- 
spondence, Bixby Collection: Ford, 12; and see Jefferson's compar- 
ison of the sections of the country, ib. and infra, chap. vi. 

3 "Many of the wealthier class were to be seen seeking relief from 
the vacuity of idleness, not merely in the allowable pleasures of the 



ANCESTRY AND ENVIRONMENT 23 

Drinking and all attendant dissipations were uni- 
versal and extreme; 1 this, however, was the case 
in all the colonies. 2 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 con- 
duct of its ministers brought upon the house of God. 3 

chase and the turf, but in the debasing ones of cock-fighting, gaming, 
and drinking." (Tucker, i, 18; and see La Rochefoucauld, hi, 77; 
Weld, i, 191; also infra, chap, vn, and references there given.) 

1 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 dis- 
tributed 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.) 

2 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.) 

* Meade, i, 52-54; and see Schoepf, ii, 62-63. 



24 JOHN MAESHALL 

Yet the higher classes of colonial Virginians were 
keen for the education of their children, or at least 
of their male offspring. 1 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. 2 
Others of this class were instructed by private tutors. 3 
Also a sort of scanty and fugitive public instruction 
was given in rude cabins, generally located in aban- 
doned fields. These were called the Old Field Schools. 4 

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; 5 the literacy of the masses, espe- 
cially that of the women, 6 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. 7 A few 

1 Wise, 317-19; Bruce: Inst, i, 308-15. 

2 Bruce: Inst., i, 317-22; and see especially, Va. Mag. Hist, and 
Biog., ii, 196 et seq. 

3 lb., 323-30; also Fithian, 50 et seq. 

4 Bruce: Inst, i, 331-42. 5 lb., 452-53. 

6 lb., 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 board- 
ing 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.) 

7 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.) 



ANCESTRY AND ENVIRONMENT 25 

libraries were of respectable size and two or three 
were very large. Robert Carter had over fifteen 
hundred volumes, 1 many of which were in Latin and 
Greek, and some in French. 2 William Byrd collected 
at Westover more than four thousand books in half 
a dozen languages. 3 But the Carter and Byrd li- 
braries were, of course, exceptions. Byrd's library was 
the greatest, not only in Virginia, but in all the col- 
onies, except that of John Adams, which was equally 
extensive and varied. 4 

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 con- 
temporary observers agree, into which Virginians 
were divided; but they merged into one another so 
that the exact dividing line was not clear. 5 First, of 
course, came the aristocracy of the immense planta- 
tions. While the social and political dominance of 
this class was based on wealth, yet some of its mem- 
bers were derived from the English gentry, with, 
perhaps, an occasional one from a noble family in the 

1 Fithian, 177. 2 See catalogue in W. and M. C. Q.,x and xi. 

1 See catalogue in Appendix A to Byrd's Writings: Bassett. 
4 See catalogue of John Adams's Library, in the Boston Public 
Library. 

1 Ambler, 9; and see Wise, 68-70. 



26 JOHN MARSHALL 

mother country. * Many, however, were English mer- 
chants or their sons. 2 It appears, also, that the bold- 
est 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; 3 and, indeed, 
an occasional transported convict rose to promi- 
nence. 4 

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. 5 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 

1 Trustworthy data on this subject is given in the volumes of the 
Va. Mag. Hist, and Biog. ; see also W. and M. C. Q. 

2 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. 

3 "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.) 

4 For the understanding in England at that period of the origin of 
this class of Virginia colonists see Defoe: MoU Flanders, 65 et seq. 
On transported convicts see Amer. Hist. Rev., ii, 12 et seq. For a 
summary of the matter see Channing, i, 210-14, 226-27. 

6 Fithian to Greene, Dec. 1, 1773; Fithian, 280. 



ANCESTRY AND ENVIRONMENT 27 

royal ideal than had her sisters. Thus it was that the 
Old Dominion developed a distinctively aristocratic 
and chivalrous social atmosphere peculiar to her- 
self, 1 as Jefferson testifies. 

Next to the dominant class came the lesser plant- 
ers. These corresponded to the yeomanry of the 
mother country; and most of them were from the 
English trading classes. 2 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 oppor- 
tunity 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 

1 Fithian to Peck, Aug. 12, 1774; Fithian, 286-88; and see Profes- 
sor 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. 

2 Wertenbaker: P. and P., 14-20; also Va. Mag. Hist, and Biog., 
xviii, 339-48. 



28 JOHN MARSHALL 

idleness given them by those in higher station, and 
coarsened their vices to the point of brutality. 1 
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 bor- 
dering 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 sec- 
tion. 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 "back- 
woodsmen," and yet so little understood. For the 
heroism, the sacrifice, and the suffering of this 
"advance guard of civilization" have been pictured 

1 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 nine- 
teenth century. Also, see La Rochefoucauld, Chastellux. and other 
travelers, infra, chap. vn. 



ANCESTRY AND ENVIRONMENT 29 

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 sur- 
render of the British at Yorktown and the adoption 
of the Constitution, and in that still more fate- 
ful 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 under- 
lying 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. 1 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 clear- 
ing made, the seed planted for a crop of cereals only 
large enough to supply the household needs — these 
almost ended the backwoodsman's agricultural ac- 
tivities and the habits of regular industry which 
farming requires. 

While his meager crops were coming on, the back- 
woodsman 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, 

1 Schoepf, i, 261; and see references, infra, chap. vn. 



30 JOHN MARSHALL 

that fear of them had ceased; 1 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, 2 a creature of the forests, a dweller 
amid great silences, self-reliant, suspicious, non- 
social, and almost as savage as his surroundings. 3 

But among them sometimes appeared families 
which sternly held to high purposes, orderly habits, 
and methodical industry; 4 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. 

1 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.) 

2 Although the rifle did not come into general use until the Rev- 
olution, 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. 

3 " 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 pro- 
fessed 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." (Crevecceur, 66-68.) Crevecceur was 
himself a frontier farmer. (Writings: Sparks, ix, footnote to 259.) 

4 "Many families carry with them all their decency of conduct, 
purity of morals, and respect of religion; but these are scarce." 
(Crevecceur, 70.) Crevecceur says his family was one of these. 



ANCESTRY AND ENVIRONMENT SI 

Such a figure among the backwoodsmen was 
Thomas Marshall. Himself a product of the settle- 
ments on the tidewater, he yet was the personifica- 
tion of that spirit of American advance and enter- 
prise 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, 1 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 

1 This bellicose trait persisted for many years and is noted by all 
contemporary observers. 



32 JOHN MARSHALL 

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, geo- 
graphically speaking, — within a radius of a hun- 
dred miles, — George Mason, James Madison, Pat- 
rick Henry, Thomas Jefferson, John Marshall, and 
George Washington were born. The life stories of 
these men largely make up the history of their coun- 
try 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 politi- 
cal and social forces which are still working out thf 
destiny of the American people. 



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 twenti- 
eth 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 power- 
ful physical equipment which no strain of his later 
years seemed to impair; and helped to establish that 
extraordinary nervous equilibrium which no excite- 
ment or contest ever was able to unbalance. 1 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 enter- 
prising young man. Indeed, there is reason for 
thinking that he abandoned it. 2 He lifted his first 

1 Story, in Dillon, iii, 334. 

* The records of Westmoreland County do not show what disposi- 
tion 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 aban- 
doned it just as John Washington and Thomas Pope abandoned one 
thousand acres of the same land. (Supra.) 



34 JOHN MARSHALL 

rooftree in what then were still the wilds of Prince 
William County. 1 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 dis- 
appeared, and only a rude monument of native 
stone, erected by college students in recent years, 
now marks the supposed site of this historic birth- 
place. 

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 Spotsw r ood's Ger- 
mans. 2 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 re- 
mained thick and unviolated about his cabin, 3 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. 4 

The sturdy young pioneer was not content to re- 
main permanently at Germantown. A few years 
later found him building another home about thirty 

1 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. 

2 Campbell, 404-05. 

3 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." (lb., 106; and see infra, chap. VII.) 

4 John, 1755; Elizabeth, 1756; Mary, 1757; Thomas, 1761. 



A FRONTIER EDUCATION 35 

miles farther westward, in a valley in the Blue Ridge 
Mountains. 1 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 over- 
looked, with a wall of inviting green. 2 

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. 3 On one of these the Marshalls might have 
made their way northward, and on another, which 
it probably joined, they could have traveled west- 

1 Binney, in Dillon, iii, 284. 

2 The ancient trunks of one or two of these trees still stand close to 
the house. 

8 British map of 1755; Virginia State Library. 



36 JOHN MARSHALL 

ward. But these trails were primitive and extremely 
difficult for any kind of vehicle. 1 

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. 2 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. 

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, 

1 See La Rochefoucauld, iii, 707. These "roads" were scarcely 
more than mere tracks through the forests. See chap, vn, infra s 
for description of roads at the period between the close of the Revo- 
lution 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, vn) 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. 

2 She was born in 1737. (Paxton, 19.) 



A FRONTIER EDUCATION 37 

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. 1 

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. 2 

Thomas and Mary Marshall's pride and aspira- 
tion, 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. 3 It was perhaps easier 
to construct a one and a half story house w T ith such 
materials; for to lift heavy timbers to such a height 
required great effort. 4 But Thomas Marshall's social, 
religious, and political status 5 in the newly organized 
County of Fauquier were the leading influences that 

1 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 Roche- 
foucauld, iii, 135.) 

2 Personal inspection. 

3 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. 

4 Practically all log cabins, at that time, had only one story. 

5 See infra. 



38 JOHN MARSHALL 

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 * 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. 2 But, with the horror of Braddock's de- 
feat subdued by the widespread and decisive coun- 
ter victories, settlers began to come into the country 
on both sides of the Blue Ridge. These were compar- 
atively small farmers, who, later on, became raisers of 
wheat, corn, and other cereals, rather than tobacco. 

Not until John Marshall had passed his early boy- 
hood, however, did these settlers become sufficiently 
numerous to form even a scattered community, and 
his early years were enlivened with no child com- 
panionship 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 

1 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. 

2 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 W T inchester in 1777, from 
personal observation; MS.) 



A FRONTIER EDUCATION 39 

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. 1 

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. 2 The fare, naturally, was simple and primi- 
tive. Game from the forest and fish from the stream 
were the principal articles of diet. Bear meat was 
plentiful. 3 Even at that early period, salt pork and 

1 See Mrs. Carrington to her sister Nancy, infra, chap. v. 

2 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., hi, 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.) 

3 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 Crevecceur, 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.) 



40 JOHN MARSHALL 

salt fish probably formed a part of the family's food, 
though not to the extent to which such cured pro- 
visions were used by those of the back country in 
later years, when these articles became the staple of 
the border. 1 

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 home- 
spun. "Store goods," whether food, fabric, or uten- 
sil, could be got to Thomas Marshall's backwoods 
dwelling only with great difficulty and at prohibitive 
expense. 2 

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 in- 

1 See infra, chap. vn. 

2 Even forty years later, all "store" merchandise could be had in 
this region only by hauling it from Richmond, Fredericksburg, or Alex- 
andria. 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 abso- 
lute necessities even ten years after the Constitution was adopted. 



A FRONTIER EDUCATION 41 

spiring views from the neighboring heights, the ma- 
jestic 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. 1 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 enthu- 
siasm, 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; 2 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. 3 

The mental and spiritual effects of his surround- 
ings on the forming mind and unfolding soul of this 
young American must have been as lasting and pro- 
found as were the physical effects on his body. 4 
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 

1 Eist. Mag., iii, 166; Howe, 263; also, Story, in Dillon, iii, 334. 

2 Sto7-y, in Dillon, iii, 331-32. 8 lb. 
4 #ee .Bmney, in Dillon, iii, 285. 



42 JOHN MARSHALL 

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 accus- 
tomed 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 l 
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 educa- 
tion 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 

1 "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." 



A FRONTIER EDUCATION 43 

abler man than any of his sons." * 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." 2 Justice Story wrote a 
sketch of Marshall for the "National Portrait Gal- 
lery," in which Thomas Marshall is highly praised. 
In acknowledging the receipt of the magazine, Mar- 
shall wrote: "I am particularly gratified by the 
terms in which you speak of my father. If any con- 
temporary, who knew him in the prime of manhood, 
survived, he would confirm all you say." 3 

So whether at home with his mother or on survey- 
ing 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 up- 
rightness, their religious convictions — these were 
the intellectual companions of John Marshall's child- 
hood 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 Ran- 
dolph 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 im- 

1 See Binney, in Dillon, iii, 285. 2 Story, in Dillon, iii, 330. 

3 Marshall to Story, July 31, 1833; Story, ii, 150. 



44 JOHN MARSHALL 

ported, were very expensive, and, in the back coun- 
try, 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 read- 
ing 1 that distinguished the wealthy landlords of the 
older parts of the colony. 2 Thomas Marshall, how- 
ever, 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. 3 
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 mem- 
ory "many of the most interesting passages." 4 This 

1 See infra, chaps, vn and vni. 

2 "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. 

3 Story thinks that Thomas Marshall, at this time, owned Milton, 
Shakespeare, and Dry den. (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.) 

4 Story, in Dillon, iii, 331, and Binney, in ib., 283; Hist. Mag., iii, 
166. 



A FRONTIER EDUCATION 45 

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. 1 

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 or- 
derly, 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 mes- 
sage 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, 2 he was often a visitor at the 

1 Lang: History of English Literature, 384; and see Gosse: History 
qf 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. 

2 Binney, in Dillon, iii, 283-84; Washington's Diary ; MS., Lib. 
Cong. 



46 JOHN MARSHALL 

wilderness home of Lord Fairfax just over the Blue 
Ridge. Washington availed himself of the Fairfax 
Library, x and it seems reasonable that Thomas Mar- 
shall 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. 2 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. 3 Washington was 
related by marriage to the proprietor of the North- 
ern 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; 4 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 

1 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 Athenaeum. But as a young and moneyless 
surveyor he had no books of his own and his " book " education was 
limited and shallow. 

2 Binney, in Dillion, iii, 281-84. 

3 Irving, i, 37, 45; and Sparks, 10. A Irving, i, 27. 



A FRONTIER EDUCATION 47 

holdings, 1 and in frequent and intimate contact with 
his employer. Thus Thomas Marshall, as Wash- 
ington's associate and helper, came under the guid- 
ance and example of Lord Fairfax. 

The romantic story of this strange man deserves 
to be told at length, but only a resume 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. 2 

Lord Fairfax inherited his enormous Virginia es- 
tate from his mother, the daughter of Lord Cul- 
peper, the final grantee of that kingly domain. This 
profligate grant of a careless and dissolute monarch 
embraced some five million acres between the Poto- 
mac 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 Cul- 
peper, forced him to cut off the entail of the exten- 
sive 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 prepara- 

1 Irving, i, 46. 

2 As will appear, the Fairfax estate is closely interwoven into John 
Marshall's career. (See vol. n of this work.) 



48 JOHN MARSHALL 

tions 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 for- 
ever, 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, 1 after the English fashion; but it never was 
anything more than a hunting lodge. 2 

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 im- 
provements, Lord Fairfax advanced it. His excess 
revenues were given to the poor. So that the 
Northern Neck under Lord Fairfax's administration 

1 For description of Greenway Court see Pecquet du Bellet, ii, 175. 
8 Washington's Writings: Ford, i, footnote to 329. 



A FRONTIER EDUCATION 49 

became the best settled, best cultivated, and best 
governed of all the upper regions of the colony. 1 

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 com- 
manded the Parliamentary forces at Marston Moor. 
The third Lord Fairfax was the general of Crom- 
well's army and the hero of Naseby. So the propri- 
etor 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. 2 

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. 3 

1 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.) 

2 When the Revolution came, however, Fairfax was heartily 
British. The objection which the colony made to the title to his estate 
doubtless influenced him. 

3 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 ulti- 
mate sources the origins of John Marshall's economic, political, and 
social convictions. 



50 JOHN MARSHALL 

He loved literature and was himself no mean 
writer, his contributions while he was in the Univer- 
sity having been accepted by the "Spectator." * 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 re- 
stricted language, his courtly conduct, and his digni- 
fied if rigid bearing. Much of this was due to his 
noble patron. 2 

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 in- 
habited 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 protege a certain standard of living, 
thinking, and acting; and Thomas Marshall fol- 
lowed the example set by his fellow surveyor. 3 
Thus came into the Marshall household a different 
atmosphere from that which pervaded the cabins of 
the Blue Ridge. 

1 Sparks, 11; and Irving, i, 33. 

2 For Fairfax's influence on Washington see Irving, i, 45; and in 
general, for fair secondary accounts of Fairfax, see ib., SI-46; and 
Sparks, 10-11. 

3 Senator Humphrey Marshall says that Thomas Marshall "emu- 
lated" Washington. (Humphrey Marshall, i, 345.) 



A FRONTIER EDUCATION 51 

All this, however, did not make for his unpopu- 
larity among Thomas Marshall's distant, scattered, 
and humbly placed neighbors. On the contrary, it 
seems to have increased the consideration and re- 
spect 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; 1 and, six years later, he was 
appointed Sheriff by Governor Fauquier, for whom 
the county was named. 2 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. 3 

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 Mar- 
shall, Mary Marshall his wife, and John Marshall 
his son and . . . the longest liver of them." The 
consideration was "five shillings current money in 

1 See infra. 

2 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 Brit- 
ish revenue officers of all money collected by Marshall for the Crown. 
(Records of Fauquier County (Va.), Deed Book, iii, 71.) 

3 Bruce: Inst, i, 597, 600; also, ii, 408, 570-74. 



52 JOHN MARSHALL 

hand paid" and a "yearly rent of five pounds cur- 
rent money, and the quit rents and Land Tax." * 

In 1769 Leeds Parish, embracing Fauquier County, 
was established. 2 Of this parish Thomas Marshall 
became the principal vestryman. 3 This office sup- 
plemented, in dignity and consequence, that of 
sheriff; the one was religious and denoted high so- 
cial status, the other was civil and evidenced polit- 
ical importance. 4 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 su- 
perior 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 man- 
agement of the practical business of the established 
(Episcopal) church. 5 Among the duties and privi- 
leges of the vestry was that of selecting and employ- 
ing the clergyman. 6 

The vestry of Leeds Parish, with Thomas Mar- 

1 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 Mar- 
shall 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. 

2 Meade, ii, 218. 

3 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.) 

4 The vestrymen were "the foremost men ... in the parish . . . 
whether from the point of view of intelligence, wealth or social posk 
tion." (Bruce: Inst, i, 62; and see Meade, i, 191.) 

6 Bruce : Inst, i, 62-93; and see Eckenrode: S, C. & S., 13. 
6 Bruce: Inst., i, 131 etseq. 



A FRONTIER EDUCATION 53 

shall 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. 1 Thus it came about that John 
Marshall received the first of his three short peri- 
ods of formal schooling; for during his trial year the 
young 2 Scotch deacon returned Thomas Marshall's 
hospitality by giving the elder children such instruc- 
tion as occasion offered, 3 as was the custom of par- 
sons, 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 4 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 them- 
selves for nightly rest; and he remarks that the per- 
son was lucky who got the spot nearest the fireplace. 5 

1 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.) 

2 James Thompson was born in 1739. (Meade, ii, 219.) 3 lb. 

4 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.) 

6 "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, 



54 JOHN MARSHALL 

At the end of a year the embryo Scottish clergy- 
man's character, ability, and services having met the 
approval of Thomas Marshall and his fellow vestry- 
men, Thompson returned to England for orders. 1 
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 Vir- 
ginia 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. 2 

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 im- 
pulses 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 

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 to- 
gether 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 Roche- 
foucauld, 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 man- 
ners of the family were far superior to, those described by Washing- 
ton and La Rochefoucauld. 

1 Meade, ii, 219. 

2 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. 



A FRONTIER EDUCATION 55 

on the subject so strong that a part of it has been 
preserved. 1 

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." 2 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. 3 The house had seven rooms, four below and 
three above. One of the upper rooms is, compara- 
tively, 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 struc- 
ture was, for that section and period, a pretentious 

1 Meade, ii, 219. This extract of Mr. Thompson's sermon was 
treasonable from the Tory point of view. See infra, chap. in. 

2 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." 

3 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. 



56 JOHN MARSHALL 

dwelling. This is the famous Oak Hill. 1 The house 
still stands as a modest wing to the large and attrac- 
tive building erected by John Marshall's eldest son, 
Thomas, many years later. 

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." 2 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." 3 He did not, we believe, give his attention 
exclusively to Blackstone. Indeed, it appears cer- 
tain that his legal reading at this period was frag- 
mentary and interrupted, for his time was taken up 
and his mind largely absorbed by military exercises 

1 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.) 

2 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. 

3 Autobiography. 




II 

■ 2 
ea ^ 

S s 

2 - 3 

H 2 

>> » 



- 3 

3 O 



A FRONTIER EDUCATION 57 

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. 1 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. 2 This embryo "academy" 
was a primitive affair, but its solitary instructor was 
a sound classical scholar equipped with all the learn- 
ing 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. 3 

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. 4 Indeed, it was chiefly in order to teach 
his two boys that Mr. Campbell opened his little 
school in Westmoreland. 5 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. 

1 Binney, in Dillon, iii, 286. 

2 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. 

3 Meade, ii, 159, and footnote to 160. 

* lb. t 161. B lb. 



58 JOHN MARSHALL 

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 * 
from 1761 until October, 1767, when he became 
Sheriff of Fauquier County. 2 In 1769 he was again 
chosen Burgess, 3 and reelected until 1773, when he 
was appointed Clerk of Dunmore County. 4 In 1775 
he once more appears as Burgess for Fauquier 
County. 5 Throughout this period, George Wash- 
ington also served as Burgess from Westmoreland 
County. Thomas Marshall was a member of the 
standing committees on Trade, Religion, Proposi- 
tions and Grievances, and on several special com- 
mittees and commissions. 6 

1 Journal, H.B. (1761-65), 3. Thomas Marshall was seldom out of 
office. Burgess, Sheriff, Vestryman, Clerk, were the promising begin- 
nings 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. (Hum- 
phrey 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. 

2 Journal, H.B. (1766-69), 147 and 257. 

3 His election was contested in the House, but decided in Marshall's 
favor. (76. (1761-69), 272, 290, 291.) 

4 76., (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 Revolu- 
tion 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. (76. (1773-76), 9.) 

6 76. (1766-69), 163. 

6 76., 16, 71, 257; (1770-72), 17, 62, 123, 147, 204, 234, 251, 257, 
274, 292; (1773-76), 217, 240. 



A FRONTIER EDUCATION 59 

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 land- 
owners 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. 1 

In the House of Burgesses, one could tell by his 
apparel and deportment, no less than by his senti- 
ments, 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, accord- 
ing 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 
jashion of the time dictated. The upland men were 
plainly clad; and those from the border appeared in 
their native homespun, with buckskin shirts, coon- 
skin 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 be- 
longed. 

He had been a member of the House for four years 

1 Ambler, Introduction. 



60 JOHN MARSHALL 

when the difference between the two Virginia sec- 
tions and classes suddenly crystallized. The upper 
counties found a leader and fought and overcame the 
hitherto invincible power of the tidewater aristoc- 
racy, 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. 1 He was 
an ideal representative of his class — rich, generous, 
kindly, and ever ready to oblige his fellow members 
of the ruling faction. 2 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. 3 A bill to this effect was pre- 
sented 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 opposi- 
tion 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 
1 Ambler, 17-18. * Henry, i, 71. 3 76., 76-77. 



A FRONTIER EDUCATION 61 

Burgesses and who had displayed in the famous 
Parsons case a courage and eloquence which had 
given him a reputation throughout the colony, 1 
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. 2 It was the first defeat 
ever experienced by the combination that had gov- 
erned 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. 3 
Robinson died the next year; his defalcation was dis- 
covered and the real purpose of the bill was thus 
revealed. 4 

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 administra- 
tion of British dominions wherever situated. 5 The 

1 Henry, i, 39-48. 

2 Wirt, 71 ei seq. It passed the House (Journal, H.B. (1761-65), 350) ; 
but was disapproved by the Council. (lb., 356; and see Henry, i, 78.) 

3 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 aris- 
tocracy." (Wirt, 71.) "The members, who, like himself [Henry], re- 
presented the yeomanry of the colony, were filled with admiration 
and delight." (Henry, i, 78.) 

4 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. 6 Declaratory Resolutions. 



62 JOHN MARSHALL 

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. 1 The more eminent men among the 
Virginia Burgesses were willing to remonstrate 
once more, but had not the heart to go further. 2 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 Parlia- 
ment's right to pass the Stamp Act, and a savage 
defiance of the British Government. 3 

Cautious members of the tidewater organization 
were aghast. They did not like the Stamp Act them- 
selves, 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. 4 

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 6 of the loan-office bill. They did not relish 
the idea of following the audacious Henry and his 

1 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. 

2 lb., 67. 8 /&., 80-81. « Ib. t 82-86. 
6 Wirt, 74-76. 



A FRONTIER EDUCATION 63 

democratic supporters from the hills. They re- 
sented the leadership which the "new men" were 
assuming. To the aristocratic machine it was offen- 
sive to have any movement originate outside itself. 1 

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 West- 
minster Hall. And as in the Robinson case so in the 
fight over Henry's Stamp Act Resolutions, the Bur- 
gesses 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. 2 

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"; 3 and it was in this particular part of the 
debate that Patrick Henry made his immortal 

1 Eckenrode:#. V., 5-6. 

1 "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.) 

3 Henry, i, 86. 



64 JOHN MARSHALL 

speech, ending with the famous words, " Tarquin 
and Csesar 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." x 

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 2 hundred guineas for a single 
vote!" 3 Thomas Marshall again fought by Henry's 
side and voted for his patriotic defiance of British 
injustice. 4 

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 

1 Henry, i, 86, and authorities there cited in the footnote. 

2 Misquoted in Wirt (79) as "500 guineas." 

3 Jefferson to Wirt, Aug. 14, 1814; Works: Ford, xi, 404. 

4 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 Wash- 
ington, 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. 



A FRONTIER EDUCATION 65 

was the ending of the hitherto unquestioned su- 
premacy of the tidewater aristocracy. 1 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 mate- 
rials 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 Con- 
vention, 2 when once more the radicals of the up 
country met and defeated the aristocratic conserva- 
tives 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 work- 
ing-out of the problem by processes of conciliation 
and moderate devices, as those made timid by their 

1 "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.) 

2 Proceedings, Va. Conv., 1775, March 20, 3; July 17, 3, 5, 7. 



66 JOHN MARSHALL 

own interests always do. 1 Selfish love of ease made 
them forget, for the moment, the lesson of Brad- 
dock'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," 2 
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." 3 Once more he promptly 
took his stand under Henry's banner and supported 
the heroic resolutions with his vote and influence. 4 
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. 5 

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 

1 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. 

2 Wirt, 142; Henry, i, 261-66. 3 76., 271; and Wirt, 143. 

4 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.) 

6 Washington was appointed a member of the committee provided 
for in Henry's second resolution. (Henry, i, 271.) 



A FRONTIER EDUCATION 67 

heard of them from his father's lips. Henry's in- 
spired speech, which still burns across a century 
with undiminished power, came to John Marshall 
from one who had listened to it, as the family clus- 
tered 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 unfore- 
seen circumstance could make him hesitate, no un- 
expected 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. 1 The same decision 

1 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 t 96.) 



68 JOHN MARSHALL 

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. 



CHAPTER m 

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 cor- 
poral. (Von Steuben, 1778.) 

The fighting men of the up counties lost not a 
minute's time. Blood had been shed in New Eng- 
land; 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. 1 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 yeo- 
manry of northern Virginia came forth in answer. 

In the years between Patrick Henry's two epochal 
appeals in 1765 and 1775, all Virginia, but particu- 
larly 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. 2 Thomas Marshall's 

1 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. 

8 Washington to Mason, April 5, 1769; Writings: Ford, ii, 263. 



70 JOHN MARSHALL 

minister, Mr. Thompson, preached militant prepara- 
tion; Parliament had deprived the colonists of "their 
just and legal rights " by acts which were "destruc- 
tive of their liberties," thundered the parson; it had 
"overawed the inhabitants by British troops," 
loaded "great hardships" upon the people, and "re- 
duced the poor to great want." The preacher ex- 
horted 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," 1 whose head un- 
doubtedly 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 cap- 
tain did not come, and Marshall was appointed lieu- 
tenant, "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 re- 
ceived careful military instruction from his father. 2 
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. 3 So these 

1 Meade, ii, 219. 2 Binney, in Dillon, iii, 286. 3 lb. 



A SOLDIER OF THE REVOLUTION 71 

embryo warriors gathered about their leader to be 
told what to do. 1 

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 
oil to defend their country." Their own "rights and 
liberties " were at stake. Their brothers in New Eng- 
land 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 illus- 
trated 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. 2 

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," 3 of 
compelling power, pierced the beholder while they 
reassured him by the good nature which shone from 

1 Statement of eye-witness. (Binney, in Dillon, iii, 287.) 

2 76., 288. 

8 In all descriptions of Marshall, it is stated that his eyes were black 
and brilliant. His portraits, however, show them as dark brown, bu* 
keen and piercing. 



72 JOHN MARSHALL 

them. "He wore a purple or pale blue hunting-shirt, 
and trousers of the same material fringed with 
white." x 

At this point, too, we first learn of his bent for 
oratory. What his father told him about the de- 
bates 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, Mar- 
shall 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. 2 And make them 
a speech he did. Before his men the youthful lieu- 
tenant 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 elo- 
quence 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 

1 Binney, in Dillon, iii, 287-88. 8 lb. 



A SOLDIER OF THE REVOLUTION 73 

action. It was a battle speech. 1 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. 2 

But it was not all labor of drill and toil of dis- 
cipline, heroics of patriotic speech, or solemn preach- 
ments about duty, for the youths of John Marshall's 
company. If he was the most earnest, he was also, 
it seems, the j oiliest person in the whole band; and 
this deserves especial note, for his humor was a qual- 
ity 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 out- 
grew. Pitch quoits, then, these would-be soldiers 
did, and coursed their races, and vaulted high in 

1 Binney, in Dillon, iii, 288. 

2 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. 



<74 JOHN MARSHALL 

their running jumps. 1 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 nick- 
name "Silver Heels" in Washington's army a year 
later. 2 

The final muster of the Culpeper Minute Men 
was in "Major Clayton's old field" hard by the 
county seat 3 on September 1, 1775. 4 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-knif e " made up their war- 
like costume. 5 By some preconcert, — an order per- 
haps 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," 6 with which Patrick 
Henry had trumpeted the purpose of hitherto inar- 
ticulate America. 

Early in the autumn of 1775 came the expected 
call. Not long had the "shirt men," 7 as they were 
styled, been drilling near the court-house of Cul- 

1 Binney, in Dillon, iii, 288. * Infra, chap. rv. 

3 Slaughter, 107-08. But Binney's informant says that it was 
twenty miles from the court-house. (Binney, in Dillon, iii, 286.) 

4 Slaughter, 107-08; and certificate of J. Marshall in pension claim 
of William Payne ; MSS. Rev. War, S. F. no. 8938^, Pension Bureau. 

1 Slaughter, 107-08. 8 76. 7 Campbell, 607-14. 



A SOLDIER OF THE REVOLUTION 75 

peper County when an "express" came from Patrick 
Henry. 1 This was a rider from Williamsburg, mount- 
ing swift relays as he went, sometimes over the rough, 
miry, and hazardous roads, but mostly by the bridle 
patjis which then were Virginia's principal highways 
of land travel. The "express" told of the threat- 
ening 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 in- 
habitants were in terror of them, for the Culpeper 
Minute Men were considered as "savage back- 
woodsmen" by the people of these older communi- 
ties. 2 And indeed they must have looked the part, 
striding along armed to the teeth with the alarming 
weapons of the frontier, 3 clad in the rough but pic- 
turesque war costume of the backwoods, their long 
hair falling behind, untied and unqueued. 

1 Slaughter, 107-08; certificate of J. Marshall in pension claim of 
David Jameson; MSS. Rev. War, S. F. no. 5607, Pension Bureau. 

2 Only the Tories and the disaffected were frightened by these 
back-countrymen. Apparently Slaughter took this for granted and 
failed to make the distinction. 

3 " 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 peo- 
ple, 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.) 



76 JOHN MARSHALL 

When they reached Williamsburg half of the min- 
ute men were discharged, because they were not 
needed; * 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 col- 
onies since Bunker Hill. In this small but bloody 
battle, Thomas Marshall and his son took part. 2 

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 can- 
non upon the entrenchments. Hundreds of the newly 
emancipated negroes were laboring upon these forti- 
fications. To keep back the patriots until this mili- 
tary 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 impregna- 
ble 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, ac- 
cessible on either side by a long causeway." Here 
Dunmore and the Loyalists awaited the Americans. 3 

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 offen- 

1 Slaughter, 107-08. 8 76. 

1 Campbell, 633-34; Eckenrode: R. V. t 81, 82. 



A SOLDIER OF THE REVOLUTION 77 

sive, 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. Accord- 
ingly, 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." * 

"Between daybreak and sunrise," Captain For- 
dyce, leading his grenadiers six abreast, swept across 
the causeway upon the American breastworks. Mar- 
shall 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. 2 

This was John Marshall's first lesson 3 in war- 
fare upon the field of battle. Also, the incidents of 

1 Burk, iv, 85; and Lossing, ii, 535-36. 

1 Marshall, i, 69; and Campbell, 635. 

3 Marshall to Samuel Templeman, Richmond, Sept. 26, 1832, sup- 
porting latter's claim for pension; MSS. Rev. War, S. F. no. 6204, 
Pension Bureau. 



78 JOHN MARSHALL 

Great Bridge, and what went before and came im- 
mediately 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 ex- 
perience in far more shocking and dangerous guise. 1 

Within a few months from the time he was har- 
anguing his youthful companions in "Major Clay- 
ton'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, coura- 
geous, 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 organiza- 
tion of democracy. 

After the victory at Great Bridge, Marshall, with 
the Culpeper Minute Men, marched to Norfolk, 
where he witnessed the "American soldiers fre- 
quently amuse themselves by firing" into Dun- 
more'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. 2 Marshall's battalion then 

1 For the conduct of the men then in supreme authority in Vir- 
ginia see Wirt, 166-81; and Henry, i, 333-36; also, Campbell, 636 et 
seq.; and see Eckenrode: R. V. y 75. 

2 Marshall, i, 69; and see Eckenrode: R. V., chap, iii, for the best 
account that has been given of this important episode. Dr. Ecken- 



A SOLDIER OF THE REVOLUTION 79 

marched to Suffolk, and was discharged in March, 
1776. 1 

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 com- 
mand at Great Bridge, was appointed by the Legis- 
lature major of the Third Virginia Regiment; and at 
once entered the Continental service; 2 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 leg- 
gings, the buck-tail headgear, scalping-knife, and 

rode'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£, 
Pension Bureau. 

1 Affidavit of Marshall in pension claim of William Payne, April 26, 
1832; MSS. Rev. War, S. F. no. 8938^, Pension Bureau. 

2 Memorial of Thomas Marshall. (Supra, and Appendix IV.) 



80 JOHN MARSHALL 

tomahawk of the backwoods warrior now gave place 
to the buff and blue uniform, the three-cornered hat, 1 
the sword, and the pistol of the Continental officer; 
and Major Thomas Marshall and his son, Lieuten- 
ant 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. Study- 
ing 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. 2 

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." 3 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." 4 

1 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. 

2 Chastellux found the army nearly disbanded from necessity in 
1782. (Chastellux, translator's note to 60.) 

8 Washington to President of Congress, Jan. 24, 1776; Writings: 
Ford, iii, 372-73. 

4 Washington to Reed, Feb. 10, 1776; ib., 413. 



A SOLDIER OF THE REVOLUTION 81 

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" l 
(the committee and himself). 

In September the Commander-in-Chief wrote to 
the President of Congress that the terms of enlist- 
ment 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." 2 

Four days later Washington again told Congress, 
"beyond the possibility of doubt, . . . unless some 
speedy and effectual measures are adopted by Con- 
gress, our cause will be lost." 3 On December 1, 
1776, the army was " greatly reduced by the depart- 
ure of the Maryland Flying Camp men, and by 
sundry other causes." 4 A little afterwards General 
Greene wrote to Governor Cooke [of Rhode Island] 
that "two brigades left us at Brunswick, notwith- 
standing the enemy were within two hours' march 
and coming on." 5 

Thirteen days before the Christmas night that 

1 Washington to Committee of Safety of New York, April 27, 
1776; Writings: Ford, iv, 51-52. 

2 Washington to President of Congress, Sept. 20, 1776; ib., 422. 

3 Washington to President of Congress, Sept. 24, 1776; ib., 439. 

4 Washington to Major-General Lee, Dec. 1, 1776; ib., v, 62. 

5 General Greene to Governor Cooke, Dec. 4, 1776; ib., footnote 
to 62. 



82 JOHN MAESHALL 

Washington crossed the Delaware and struck the 
British at Trenton, the distressed American com- 
mander found that "our little handful is daily de- 
creasing by sickness and other causes." 1 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 . . . not- 
withstanding the most pressing solicitations and the 
obvious necessity for it." Washington informed Reed 
that he was left with only "fourteen to fifteen hun- 
dred effective men. This handful and such militia 
as may choose to join me will then compose our 
army." 2 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 vari- 
ous States for militia in order to get in "a number of 
men, if possible, to keep up the appearance of our 
army." 3 And he writes to his brother Augustine of 
his grief and surprise to find "the different States 

1 Washington to President of Congress, Dec. 12, 1776; Writings: 
Ford, v, 84. 

2 Washington to President of Congress, Dee. 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. 

* Washington to President of Congress, Nov. 11, 1776; ib. f 19. 



A SOLDIER OF THE REVOLUTION 83 

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." * 

Throughout the war, the neglect and ineffective- 
ness 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 ac- 
quiesce, and it affords one more melancholy proof, 
how delusive such dependencies [State controlled 
troops] are." 2 

"The Dependence, which the Congress have 
placed upon the militia," the distracted general 
complains to his brother, "has already greatly in- 
jured, and I fear will totally ruin our cause. Being 
subject to no controul themselves, they introduce 
disorder among the troops, whom you have at- 
tempted to discipline, while the change in their 
living brings on sickness; this makes them Impa- 
tient 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." 3 

1 Washington to John Augustine Washington, Nov. 19, 1776; 
Writings : Ford, v, 38-39. 

2 Washington to President of Congress, Sept. 8, 1776; ib.> iv, 
397. 

8 Washington to John Augustine Washington, Sept. 22, 1776; ib., 
429. 



84 JOHN MARSHALL 

Nor was this the worst. Washington thus pours 
out his soul to his nephew: "Great bodies of mili- 
tia 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 beha- 
vior 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." * 

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." 2 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. 9 ' 3 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." 4 Marshall thus de- 

1 Washington to Lund Washington, Sept. 30, 1776; Writings: Ford, 
iv, 457-59. 

2 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.) 

3 Kapp, 115. 4 The Crisis: Paine ; Writings: Conway, i, 175. 



A SOLDIER OF THE REVOLUTION 85 

scribes 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." - 

Bad as the militia were, 2 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 opu- 
lent and populous of all the States, has but twelve 
hundred militia in the field, at a time when the en- 
emy are endeavoring to make themselves completely 
masters of, and to fix their winter quarters in, her 
capital." 3 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." 4 

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." 5 

The head of the American forces was not the only 
patriot officer to complain. " The Pennsylvania Asso- 

1 Marshall (1st ed.), iii, 66. 

2 The militia were worse than wasteful and unmanageable; they 
deserted by companies. (Hatch, 72-73.) 

3 Washington to Wharton, Oct. 17, 1777; Writings: Ford, vi, 118-19. 

4 lb. 

6 Washington to John Augustine Washington, Oct. 18, 1777; ib+ 
126-29. 



86 JOHN MARSHALL 

ciators [militia] . . . are deserting . . . notwithstand- 
ing the most spirited exertions of their officers," 
reported General Livingston in the midsummer 
of 1776. 1 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." 2 

General Sullivan determined to quit the service 
because of abuse and ill-treatment. 3 For the same 
reason Schuyler proposed to resign. 4 These were 
not examples of pique; they denoted a general senti- 
ment among officers who, in addition to their suffer- 
ings, 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 Mis- 
creants [speculators] . . . they See their Country 
. . . refuse to make any future provision for them, 
or even to give them the Necessary Supplies." 5 

Thousands of the Continentals were often prac- 
tically naked; Chastellux found several hundred in 
an invalid camp, not because they were ill, but be- 
cause "they were not covered even with rags." 6 
"Our sick naked, and well naked, our unfortunate 
men in captivity naked"! wailed Washington in 

1 Livingston to Washington, Aug. 12, 1776; Cor. Rev.: Sparks, i, 
275. 

2 Lee to Washington, Nov. 12, 1776; ib., 305. 

3 Sullivan to Washington, March 7, 1777; ib., 353-54. 

4 Schuyler to Washington, Sept. 9, 1776; ib., 287. 

5 Smith to McHenry, Dec. 10, 1778; Steiner, 21. 

6 Chastellux, 44; and see Moore's Diary, i, 399-400; and infra, 
chap. iv. 



A SOLDIER OF THE REVOLUTION 87 

1777,? 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." 2 Sickness was 
general and appalling. Smallpox raged throughout 
the army even from the first. 3 "The Regimental 
Surgeons are immediately to make returns ... of 
all the men in their Regiments, who have not had 
the small Pox," 4 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. 5 Stern measures were taken to pre- 
vent desertion and dishonesty and even to enforce 
the most ordinary duties of soldiers. "In the after- 
noon three of our reg* were flogged; — 2 of them re- 
ceived one hundred lashes apiece for attempting to 
desert; the other received 80 for enlisting twice and 
taking two bounties," 6 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"; 7 and "at 6 ock p.m. a soldier 
of Col. Gimatts Battalion was hanged." 

Sleeping on duty meant "Twenty Lashes on . . . 

1 Washington to Livingston, Dec. 31, 1777; Writings: Ford, vi, 272. 

2 Washington to President of Congress, Dec. 23, 1777; ib. y 260; and 
see ib., 267. 

3 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.) 

4 Weedon, Jan. 6, 1778, 183. 6 Hatch, 135; and Kapp, 109. 

6 Proc, Mass. Hist. Soc. (2d Series), vi, 93. 

7 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. 



88 JOHN MARSHALL 

[the] bare back" of the careless sentry. 1 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." 2 A man who, in action, 
"turns his back on the Enemy" was ordered to be 
"instantly put ... to Death" by the officers. 3 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. 4 

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. 5 It was not an encouraging omen. But 
blacker still was the disorganizing effect of local 
control of the various "State Lines" which the pom- 
pous authority of the newborn "sovereign and in- 
dependent" Commonwealths asserted. 6 

1 Weedon, 14. 2 lb., Sept. 3, 1777, 30. 

8 lb., 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." 

4 Livingston to Webb, May 28, 1781; Writings: Ford, ix, footnote 
to 267. 

6 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.) 

6 For statement of conditions in the American army throughout 
the war see Hatch; also, Bolton. 



A SOLDIER OF THE REVOLUTION 89 

Into this desperate confusion came the young 
Virginia lieutenant. Was this the manner of liberty? 
Was this the way a people fighting for their free- 
dom 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 in- 
deed 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? Some- 
thing 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 in- 
fluence. 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. 1 One State clothed its troops well; another 

1 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.) 



90 JOHN MARSHALL 

sent no supplies at all. 1 One regiment of Maryland 
militia had no shirts and the men wrapped blankets 
about their bare bodies. 2 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 de- 
nounced 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. 3 

All through the latter half of 1776, Lieutenant 

1 Hatch says that Connecticut provided most bountifully for her 
men. (Hatch, 87.) But Chasteilux found the Pennsylvania line the 
best equipped; each Pennsylvania regiment had even a band of 
music. (Chasteilux, 65.) 

2 "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.) 

3 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.) 



A SOLDIER OF THE REVOLUTION 91 

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. 1 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; 2 
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 

1 Heitman, 285. * Binney, in Dillon, iii, 284. 



92 JOHN MARSHALL 

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." * 

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 2 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 3 
as it was wretched in equipment. A parade of eleven 
thousand men 4 through the Tory-infested metrop- 
olis would, Washington hoped, hearten patriot sym- 
pathizers and encourage Congress. He took pains 
that his troops should make the best appearance 
possible. Arms were scoured and the men wore 

1 Washington to Committee of Congress, July 19, 1777; Writings: 
Ford, v, 495. 

2 Washington to President of Congress, Aug. 23, 1777: Writings: 
Ford, vi, 50; also see Marshall (1st ed.), iii, 126. 

3 Marshall (1st ed.), iii, 126. 4 Ib. t 127. 



, A SOLDIER OF THE REVOLUTION 93 

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 1 belonging to the 
Army is to be seen with the troops on their March 
through the City." 2 

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." 3 

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. 4 Among these picked officers was 
Captain-Lieutenant John Marshall. Maxwell's com- 
mand was thrown forward to Iron Hill. "A choice 
body of men" was detailed from this select light in- 
fantry 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 un- 
der Cornwaliis attacked as soon as they discovered 

1 On this subject see Waldo's poem, Hist. Mag., vii, 274; and Clark's 
Diary, Proc, N.J. Hist. Soc., vii, 102. 

2 Weedon, Aug. 23, 1777, 19. 3 Marshall (1st ed.), iii, 127. 
4 /&., 128; and see Trevelyan, iv, 226. 



94 JOHN MARSHALL 

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. 1 

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; 2 and it is certain, there- 
fore, 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 3 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, with- 
out much effort, drove the Americans across the 
Brandywine, neither side suffering much loss. 4 

» 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. 

2 Story, in Dillon, iii, 335. 

8 Washington to President of Congress, Sept. 11, 1777; Writings: 
Ford, vi, 69. 

4 Marshall (1st ed.), iii, 131; ib. (2d ed.), i, 156. Colonel Harrison, 
Washington's Secretary, reported immediately to the President oi 
Congress that Maxwell's men believed that they killed or wounded 



A SOLDIER OF THE REVOLUTION 95 

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. Mar- 
shall was in this party. 1 

Thomas Marshall, now colonel, 2 held the ad- 
vanced position under Sullivan at the right; and his 
regiment did the hardest fighting and suffered the 
heaviest losses on that unhappy day. When Corn- 
wallis, in greatly superior numbers, suddenly poured 
down upon Sullivan's division, he all but surprised 
the Continentals and drove most of them flying be- 
fore him; 3 but Colonel Marshall and his Virginians 
refused to be stampeded. That regiment "main- 

"at least three hundred" of the British. (Harrison to President of 
Congress, Sept. 11, 1777; Writings: Ford, vi, footnote to 68.) 

1 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 Presi- 
dent of Congress, Sept. 11, 1777; Writings: Ford, vi, footnote to 68.) 

2 Thomas Marshall was promoted to be lieutenant-colonel Aug. 
13, 1776; and colonel Feb. 21, 1777. (Heitman, 285.) 

* Trevelyan, iv, 230. 



96 JOHN MARSHALL 

tained 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." * 
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." 2 

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 Mar- 
shall had been assigned. The Americans made a 
show of resistance, but, learning of the rout of their 
right wing, quickly gave way. 3 

"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 

1 Marshall, i, footnote to 158. 

2 lb. 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 him- 
self 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.) 

3 Marshall, i, 156; and Trevelyan, iv, 230-31. Washington reported 
that Wayne and Maxwell's men retreated only "after a severe con- 
flict." (Washington to President of Congress, Sept. 11, 1777; Writings: 
Ford, vi, 69.) 



A SOLDIER OF THE REVOLUTION 97 

statement. 1 And by their own account the Ameri- 
cans lost three hundred killed, six hundred wounded, 
and between three and four hundred prisoners. 2 

Both British and American narratives agree that 
the conduct of the Continental troops at Brandy- 
wine 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." 3 

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." 4 

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 

1 Trevelyan, iv, 232. * Marshall, i, 157-58. 

3 lb. ; and see Irving, iii, 200-09. 
* Marshall, i, 158-59. 



98 JOHN MARSHALL 

wounded, and where the patriot forces reeled back 
under the all but fatal blows of the well-directed 
British regiments. 1 

It is small wonder that the Americans were beaten 
in the battle of the Brandy wine; 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. 2 

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 fol- 
lowed by both British and Americans. At sight of a 
detachment of the enemy approaching Wilmington, 
the Delaware militia "dispersed themselves," says 
Marshall. 3 Soon the two armies again faced one an- 
other. 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." 4 

Through a cold and blinding downpour, over 

1 Four years afterward Chastellux found that "most of the trees 
bear the mark of bullets or cannon shot." (Chastellux, 118.) 

2 Washington to President of Congress, Sept. 11, 1777; Writings: 
Ford, vi, 70. 

3 Marshall (1st ed.), iii, 141, and see Washington to President of 
Congress, Sept. 23, 1777; Writings: Ford, vi, 81. 

4 Marshall, i, 160. 



A SOLDIER OF THE REVOLUTION 99 

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 examina- 
tion made of arms and ammunition. "Scarcely a 
musket in a regiment could be discharged," Mar- 
shall 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 bayo- 
nets. 1 "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. 2 

Yet Washington was determined to block the 
British march on Philadelphia. He made shift to 
secure some fresh ammunition 3 and twice moved his 
army to get in front of the enemy or, failing in that, 

1 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.) 

2 Marshall, i, 160-61. 3 lb. 



100 JOHN MARSHALL 

"to keep pace with them." 1 To check their too 
rapid advance Washington detached the troops under 
Wayne, among whom was John Marshall. 2 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-Gen- 
eral 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 en- 
counter killed and wounded one hundred and fifty of 
his men. 3 General Smallwood, who was to have sup- 
ported 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." 4 

Another example, this, before John Marshall's 
eyes, of the unreliability of State-controlled troops; 5 
one more paragraph in the chapter of fatal ineffi- 
ciency 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 

1 Washington to President of Congress, Sept. 23, 1777; Writings: 
Ford, vi, 81-82. 

2 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.) 

3 Marshall, i, 161. "The British accounts represent the American 
loss to have been much larger. It probably amounted to at least 
three hundred men." (lb., footnote.) 

4 lb., and see Pa. Mag. Hist, and Biog., i, 305. 

5 Marshall repeatedly expresses this thought in tis entire account 
of the war. 



A SOLDIER OF THE REVOLUTION 101 

a lifelong impression upon him and had an immedi- 
ate 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 Govern- 
ment itself. 

Once again the American commander sought to 
intercept the British, but they escaped "by a va- 
riety 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." * 
For the moment Washington could not follow, al- 
though, declares Marshall, "public opinion" was 
demanding and Congress insisting that one more 
blow be struck to save Philadelphia. 2 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," 3 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 im- 
patient Congress. 4 He did his utmost; that brilliant 
officer, Alexander Hamilton, was never so efficient; 
but nearly all that could be accomplished was to 

1 Washington to President of Congress, Sept. 23, 1777; Writings: 
Ford, vi, 80. 

2 Marshall, i, 162. 3 lb. 

4 Washington to President of Congress, Sept. 23, 1777; Writings: 
Ford, vi, 82. 



102 JOHN MARSHALL 

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. 1 

So the British occupied the Capital, placing most 
of their forces about Germantown. Congress, fright- 
ened and complaining, fled to York. The mem- 
bers 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." 2 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 af- 
terwards conceded. 3 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 4 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 Mar- 

1 Works; Adams, ii, 437. * 76. 

3 Pa. Mag. Hist, and Biog., xvi, 197 et seq. 

* American officer's description of the battle. (16., xi, 330.) 



A SOLDIER OF THE REVOLUTION 103 

shall was now attached, 1 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 huzza- 
ing American ranks. This saved the day for the 
Royal force and turned an American victory into 
defeat. 2 

It was a dramatic struggle in which John Mar- 
shall that day took part. Fighting desperately be- 
side 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. 3 For a while their fire was di- 
rected only by the flash from what they thought 
must be the guns of the enemy. 4 

The rattle of musketry and roar of cannon was 
like "the crackling of thorns under a pot, and inces- 
sant peals of thunder," wrote an American officer in 
an attempt to describe the battle in a letter to his 
relatives at home. 5 Through it all, the Americans 
kept up their cheering until, as they fought, the 

1 Marshall, i, 168. 2 lb., 168-69. 

3 From an American officer's description, in Pa. Mag. Hist, and 
Biog., xi, 330. 

4 lb., 331-32. * lb. 



104 JOHN MARSHALL 

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. 1 Nearly a thousand of Washington's sol- 
diers 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. 2 

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: Con- 
gress wished it; a "torrent of public opinion" de- 
manded it; even some, of Washington's officers were 
carried off their feet and advised "the mad enter- 
prise," to use Marshall's warm description of the 
pressure upon his commander. 3 The depreciation of 
the Continental paper money, the increasing disaf- 
fection of the people, the desperate plight of Ameri- 
can 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. 4 And "the cor- 
ruption and defection of the people, and their unwill- 
ingness to serve in the army of the United States, 

1 "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.) 

2 Marshall, i, 170-71. s /&., 181. 4 lb., 181-82. 



A SOLDIER OF THE REVOLUTION 105 

were evils which would be very greatly increased by 
an unsuccessful attempt on Philadelphia." : 

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 chap- 
lain 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 Duche. 
Look at Congress. Its members were "obscure" and 
"distinguished for the weakness of their understand- 
ings 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." Con- 
sider the situation: "Your harbors are blocked up, 
your cities fall one after the other; fortress after for- 
tress, 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." 2 Deeply offended, Washington 
sent the letter to Congress, which, however, con- 
tinued 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 

1 Marshall (1st ed.), iii, 287. Marshall omits this sentence in his 
second edition. But his revised account is severe enough. 

2 The Reverend Jacob Duche, to Washington, Oct. 8, 1777; Cor. 
Rev. : Sparks, i, 448-58. 



106 JOHN MARSHALL 

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 Amer- 
icans 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, 1 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. 2 
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. Mar- 
shall, 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 en- 
couraging them by the steady firmness of his coun- 
tenance, as well as by his words, to a vigorous per- 
formance of their duty." 3 

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 

1 Washington to President of Congress, Dec. 10, 1777; Writings: 
Ford, vi, 238-39. 

* 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." {lb.) 

3 Marshall, i, 184. 



A SOLDIER OF THE REVOLUTION 107 

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, 1 and Washington's army 
went into winter quarters on the hills of Valley 
Forge. 

1 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 discour- 
aged, 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 sol- 
diers of King George, no aloes to the Royal officers in 
fat and snug Philadelphia. 1 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 

1 It appears that, throughout the Revolution, Pennsylvania's me- 
tropolis 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 intol- 
erable. ... 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 ad- 
vanced 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 hun- 
dreds." (Tilghman to McHenry, Jan. 25, 1799; Steiner, 25.) 



VALLEY FORGE AND AFTER 109 

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." * 

"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 con- 
tinued 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 op- 
portunity 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." 2 

"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." 3 Loyal to the colors of pleasure, society 
waged a triumphant campaign of brilliant amuse- 
ment. The materials were there of wit and loveli- 
ness, 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 ; 4 
such men as Banastre Tarleton of the Dragoons, 
twenty -three years old, handsome and accomplished; 

1 Trevelyan, iv, 279. 2 76., 280. 3 lb. 

4 The influence of Margaret Shippen in causing Arnold's treason is 
now questioned by some. (See Avery, vi, 243-49.) 



110 JOHN MARSHALL 

brilliant Richard Fitzpatrick of the Guards; Cap- 
tain John Andre, whose graces charmed all hearts. 1 
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 eat- 
ing. 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. 2 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. 3 

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 Ameri- 
cans made an encampment which, says Trevel- 
yan, "bids fair to be the most celebrated in the 

1 Trevelyan, iv, 281-82. 2 lb., 278-80. 

3 lb., 268-69; also Marshall, i, 215. The German countrymen, how- 
ever, 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.) 



VALLEY FORGE AND AFTER 111 

world's history." 1 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. 2 
While the huts were being built the naked or scarcely 
clad 3 soldiers had to find what shelter they could. 
Some slept in tents, but most of them lay down 
beneath the trees. 4 For want of blankets, hundreds, 
had "to sit up all night by fires." 5 After German- 
town Washington's men had little to eat at any 
time. On December 2, "the last ration had been 
delivered and consumed." 6 Through treachery, cat- 
tle meant for the famishing patriots were driven 
into the already over-supplied Philadelphia. 7 

The commissariat failed miserably, perhaps dis- 
honestly, 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!" 8 Men died by the score from 
starvation. 9 Most of the time "fire cake" made of 
dirty, soggy dough, warmed over smoky fires, and 

1 Trevelyan, iv, 290. 

2 The huts were fourteen by sixteen feet, and twelve soldiers occu- 
pied each hut. (Sparks, 245.) 

3 "The men were literally naked [Feb. 1] some of them in the full- 
est extent of the word." (Von Steuben, as quoted in Kapp, 118.) 

4 Hist Mag., v, 170. 

5 Washington to President of Congress, Dec. 23, 1777; Writings: 
Ford, vi, 260. 

6 Marshall, i, 213. 7 76., 215. 

8 Washington to President of Congress, Dec. 23, 1777; Writings: 
Ford, vi, 258. 

9 "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.) 



112 JOHN MARSHALL 

washed down with polluted water was the only sus- 
tenance. Sometimes, testifies Marshall himself, sol- 
diers and officers "were absolutely without food." * 
On the way to Valley Forge, Surgeon Waldo writes : 
" I 'm Sick — eat nothing — No Whiskey — No 
Baggage — Lord, — Lord, — Lord." 2 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 Felic- 
ities 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 & filthy- 
ness — 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." 3 

While in overfed and well-heated Philadelphia of- 
ficers 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 an- 
other: "Good morning Brother Soldier (says one to 
another) how are you? — All wet, I thank'e, hope 
you are so — (says the other)." 4 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 

1 Marshall (1st ed.), iii, 341. 2 Hist. Mag,, v, 131. 

3 76. « 76., 132. 



VALLEY FORGE AND AFTER 113 

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 melan- 
choly 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 
& W T ater 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." x 

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 & 

1 Hist. Mag., v, 132-33. 



114 JOHN MARSHALL 

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.'" x 

On the day after Christmas the soldiers waded 
through snow halfway to their knees. Soon it was 
red from their bleeding feet. 2 The cold stung like a 
whip. The huts were like "dungeons and . . . full as 
noisome." 3 Tar, pitch, and powder had to be burned 
in them to drive away the awful stench. 4 The horses 
"died by hundreds every week"; the soldiers, stag- 
gering with weakness as they were, hitched them- 
selves to the wagons and did the necessary hauling. 5 
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. 6 Sick men lay 
in filthy hovels covered only by their rags, dying 
and dead comrades crowded by their sides. 7 

As Christmas approached, even Washington be- 
came so disheartened that he feared that "this army 

1 Hist. Mag., v, 131-32. 2 Trevelyan, iv, 297. 

3 lb. For putrid condition of the camp in March and April, 1778, 
see Weedon, 254-55 and 288-89. 

4 Trevelyan, iv, 298. 6 lb. 

• Personal narrative; Shreve, Mag. Amer. Hist., Sept., 1897, 568. 
7 Trevelyan, iv, 298. 



VALLEY FORGE AND AFTER 115 

must dissolve;" * and the next day he again warned 
Congress that, unless the Commissary were quickly 
improved, "this army must inevitably . . . starve, 
dissolve, or disperse." 2 

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." 3 
"The army must dissolve!" "The army must dis- 
solve ! " — the repeated cry comes to us like the 
chant of a saga of doom. 

Had the British attacked resolutely, the Ameri- 
cans would have been shattered beyond hope of re- 
covery. 4 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. 5 
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 & inhu- 
mane treatments — that Barbarians are Capable of 
inflicting. . . . One of these poor unhappy men — 
drove to the last extreem by the rage of hunger — 

1 Washington to President of Congress, Dec. 22, 1777; Writings: 
Ford, vi, 253. 

2 Washington to President of Congress, Dec. 23, 1777; ib., 257. 

3 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.) 

4 Marshall, i, 227. 5 lb. 



116 JOHN MARSHALL 

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." 1 

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 

1 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 Mar- 
shall, 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, foot- 
note 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. 



VALLEY FORGE AND AFTER 117 

before it could be changed. The beds were "heaps of 
polluted litter." Of forty of John Marshall's com- 
rades from a Virginia regiment, which was the "pride 
of the Old Dominion," only three came out alive. 1 
"A violent putrid fever," testifies Marshall, "swept 
off much greater numbers than all the diseases of the 
camp. z 

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. 3 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 conspicu- 
ous for these comforting qualities. 

"Although," writes Lieutenant Philip Slaughter, 
who, with the "two Porterfields and Johnson," was 

1 Trevelyan, iv, 299. 2 Marshall, i, 227. 

3 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 demon- 
strates the careful military training given his sons by Thomas Mar- 
shall before 1775 — a period when comparatively few believed that 
war was probable. 



118 JOHN MARSHALL 

the messmate of John Marshall, "they were reduced 
sometimes to a single shirt, having to wrap them- 
selves in a blanket when that was washed" * and 
"the snow was knee-deep all the winter and stained 
with blood from the naked feet of the soldiers," 2 
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 exu- 
berance 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 tem- 
pered man I ever knew," 3 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 mira- 
cle he got hold of a pair of silk stockings and at mid- 

1 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." (Washing- 
ton to President of Congress, Dec. 23, 1777; Writings: Ford, vi, 260.) 

2 Slaughter, 107-08. 3 Howe, 266. 



VALLEY FORGE AND AFTER 119 

night made a great commotion because the leaves 
he had gathered to sleep on had caught fire and 
burned a hole in his grotesque finery. 1 

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," 2 and at the same 
time, by the same order, James Monroe was ap- 
pointed aide-de-camp to Lord Stirling, one of Wash- 
ington's generals. 3 

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. 4 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 ob- 

1 Slaughter, 108. 

2 Weedon, 134; also, Heitman, 285. 3 lb. 

4 Description of Marshall at Valley Forge by eye-witness, in North 
American Review (1828), xxvi, 8. 



120 JOHN MARSHALL 

servers, notwithstanding his merriment and waggish- 
ness. 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 com- 
missioned officers he was discriminated for superior 
intelligence. Our informant, Colonel Ball, of another 
regiment in the same line, 1 represented him as a 
young man, not only brave, but signally intelli- 
gent." 2 

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 dis- 
missed from the service in disgrace for sleeping and 
eating with privates, and for buying a pair of shoes 
from a soldier. 3 Bitter penalties were inflicted on 
large numbers of civilians for trying to take flour, 
cattle, and other provisions to the British in Phila- 
delphia; 4 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." 5 

What held the patriot forces together at this time? 

1 Ninth Virginia. (Heitman, 72.) 

2 North American Review (1828), xxvi, 8. 

3 Weedon, Feb. 8, 1778, 226-27. Washington took the severest 
measures to keep officers from associating with private soldiers. 

1 lb., 227-28. 6 lb., Jan. 5, 1778; 180. 



VALLEY FORGE AND AFTER 121 

George Washington, and he alone. 1 Had he died, 
or had he been seriously disabled, the Revolution 
would have ended. Had typhoid fever seized Wash- 
ington for a month, had any of those diseases, with 
which the army was plagued, confined him, the 
patriot standard would have fallen forever. Wash- 
ington was the soul of the American cause. Wash- 
ington 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 what- 
ever part of his life the historian puts his probe, the 
result is always satisfactory." 2 

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 anony- 
mous letter which Rush wrote to the Virginia Gov- 
ernor, 3 prevented that shameful plot from driving 
Washington out of the service of his country. 

Washington had led his army to defeat after de- 

1 See Washington's affecting appeal to the soldiers at Valley Forge 
to keep up their spirits and courage. (Weedon, March 1, 1778, 245-46.) 

2 Channing, ii, 559. 

3 See Rush's anonymous letter to Henry and the correspondence 
between Henry and Washington concerning the cabal. (Henry, i, 
544-51.) 



122 JOHN MARSHALL 



feat while Gates had gained a glorious victory; Gates 
I 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 com- 
fortable Capital of the State, remonstrated to Con- 
gress. 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 Washing- 
ton's downfall, Congress created a new Board of 
War, with Gates as President; Conway was made 
Inspector-General. * 

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. 2 Nor were 
Washington's generals spared. Greene was a syco- 
phant, 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 satel- 
lites" of Washington and flatterers of his vanity. 3 
So cunning, subtle, and persistent were these sap- 
pers 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 Wash- 
ington's strength, suspicion of his motives, distrust of 
1 Marshall, i, 217. 2 Trevelyan, iv, 301. 3 lb., 303-04. 



VALLEY FORGE AND AFTER 123 

his abilities, had made some impression even on men 
like John Adams. 1 

The great American bore himself with dignity, 
going hardly further than to let his enemies know 
that he was aware of their machinations. 2 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 starv- 
ing naked troops "so easy and practicable a busi- 
ness? I can assure those gentlemen," writes Wash- 
ington, "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 ten- 
dering his resignation. 3 

Washington was saved finally by the instinctive 
faith which that part of the common people who 

1 "The idea that any one Man Alone can save us is too silly for any 
Body but such weak Men as Duche to harbor for a Moment." (Adams 
to Rush, Feb. 8, 1778; Old Family Letters, 11; and see Lodge: Wash- 
ington, i, 208; also Wallace, chap, ix.) 

2 Sparks, 252; and Marshall, i, 218. 

3 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 Com- 
mittee of Congress, Jan. 28, 1778; ib., 300-51.) 



124 JOHN MARSHALL 

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 & Wash- 
ington." x 

Congress soon became insignificant in numbers, 
only ten or twelve members attending, and these 
doing business or idling as suited their whim. 2 About 
the only thing they did was to demand that Wash- 
ington 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 of- 
ficers 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 Con- 
gress. 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." 3 

Amidst the falling snow at Valley Forge, Washing- 

1 Hist. Mag., v, 131. 

2 On April 10, 1778, ^Edanus 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.) 

* Trevelyan, iv, 291-92. 



VALLEY FORGE AND AFTER 125 

ton 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 pres- 
ent danger." 1 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." 2 

"You are beseeched most earnestly, my dear Col- 
Harrison," pleaded Washington, "to exert yourself 
in endeavoring to rescue your Country by . . . send- 
ing 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 con- 
tent themselves in the enjoyment of places of honor 
or profit in their Country [Virginia] 3 while the com- 
mon interests of America are mouldering and sinking 
into irretrievable . . . ruin, in which theirs also must 
ultimately be involved." 4 

With such men, Washington asserted, "party dis- 
putes and personal quarrels are the great business 
of the day, whilst the momentous concerns of an 

1 Washington to Harrison, Dec. 18, 1778; Writings: Ford, vii, 
297-98. 

2 76. 

3 At this period and long after a State was referred to as "the 
country." 

4 Washington to Harrison, Dec. 18, 1778 ; Writings: Ford, vii, 297-98. 



126 JOHN MARSHALL 

empire [America] x . . . are but secondary consid- 
erations." Therefore, writes Washington, in angry 
exasperation, "in the present situation of things, I 
cannot help asking — Where is Mason — Wythe — 
Jefferson?" 2 

" 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, suffer- 
ing, 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, 

1 Until after Jefferson's Presidency, our statesmen often spoke of 
our "empire." Jefferson used the term frequently. 

2 Washington to Harrison, Dec. 18, 1778; Writings: Ford, vii, 
301-02. 



VALLEY FORGE AND AFTER 127 

he fought the British at Great Bridge. Thomas Jef- 
ferson 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 en- 
tered on his twenty-third year, and Thomas Jeffer- 
son, thirty-five years old, was neither in the army 
nor in Congress. Marshall had no fortune; Jefferson 
was rich. 1 

So, therefore, when as reserved a man as Wash- 
ington had finally and with great effort trained him- 
self 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 reelected. "The situation of my domestic af- 
fairs renders it indispensably necessary that I should 
solicit the substitution of some other person," was 
the only excuse Jefferson then gave. 2 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 

1 "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 Hub- 
bard, 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.) 

2 Jefferson to Pendleton, July, 1776; ib., ii, 219-20. 



128 JOHN MARSHALL 

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." x 

So while the British revels were going on in Phila- 
delphia 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 en- 
tails, the revision of the criminal code, the establish- 
ment of a free school system, the laying of the legal 
foundations of religious freedom. 2 

In short, Jefferson was sowing the seeds of liberal- 
ism 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 plant- 
ing of State reforms, however needful, when the 
very ground of American independence was cold 
and still freezing with patriot misfortune and British 
success. 

1 Jefferson's Autobiography; Works: Ford, i, 57. 

2 Tucker, i, 92 et seq.; Randall, i, 199 et seq.; Works: Ford, ii, 310, 
323, 324. 



VALLEY FORGE AND AFTER 129 

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 Ameri- 
can cause; and there, in safe and comfortable Wil- 
liamsburg 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 com- 
bat. 1 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. 2 

But as a man of action in rough weather, as an 
executive in stern times, he himself admitted his 
deficiency. 3 So we know to-day and better under- 
stand this great reformer, whose devotion to human 

1 Bloodshed, however, Jefferson thought necessary. See infra, 
vol. ii, chap. I. 

2 See vol. ii of this work. 

8 Jefferson's Autobiography; Works: Ford, i, 79. 



130 JOHN MARSHALL 

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, uncon- 
nected 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, con- 
necting them." Everybody in England wants re- 
union; 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 ac- 
quire more glory and confer more real and lasting 
service, both to your own country and to mankind 



VALLEY FORGE AND AFTER 131 

in general than . . . ever yet happened to the lot 
of any one man." 1 

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 after- 
ward, his answer was delivered with cannon and 
bayonet on the field of Monmouth. 2 

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 con- 
sidered, Congress and Army, as one people, em- 
barked in one cause, in one interest; acting on the 
same principle, and to the same end" — a philoso- 
phy which a young Virginia officer was then absorb- 
ing 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 un- 
common 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 

1 Burnaby to Washington, April 9, 1788; Cor. Rev.: Sparks, ii, 
100-02. Washington sent no written answer to Burnaby. 

2 See infra. 



132 JOHN MARSHALL 

murmur, is proof of patience and obedience which, 
in my opinion can scarce be paralleled." 1 

Further shaming Congress into action, Wash- 
ington 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 hon- 
orable 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." 2 

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, run- 
ning, 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." 3 

As spring advanced, the troops recovered their 

1 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 num- 
bers. (See supra.) 

2 lb. 

3 Thayer, 12. For camp sports, see Waldo's poem, Hist. Mag., vii, 
272-74. 



VALLEY FORGE AND AFTER 133 

strength and, finally, were ready and eager again to 
meet the enemy. Washington had persuaded Gen- 
eral Greene to accept the vital office of Quarter- 
master-General; and food, clothing, and munitions 
had somewhat relieved the situation. 1 Baron von 
Steuben had wrought wonders in the drill and dis- 
cipline of the men and in the officers' knowledge of 
their technical duties. 2 "I should do injustice if I 
were to be longer silent with regard to the merits of 
the Baron de [von] Steuben" Washington told Con- 
gress, in hearty appreciation of the Prussian gen- 
eral's services. 3 

Another event of immense importance cheered the 
patriot forces and raised patriot hopes throughout 
America. The surrender of Burgoyne had encour- 
aged 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. 4 The miseries of the past 
winter were forgotten by the army at Valley Forge 
in the joy over the French Monarch's open cham- 
pionship of the American cause and his attack upon 
the British. 5 For it meant trained troops, ships of 
war, munitions, and money. It meant more — it 
signified, in the end, war by France upon England. 

1 Lossing, ii, 595, et seq. 

2 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.) 

3 Washington to President of Congress, April 30, 1778; Writings: 
Ford, vi, 507, and footnote to 505-06. And see Channing, hi, 292. 

4 See Channing, iii, 286, 288; and Marshall, i, 235, 236. 

5 Marshall, i, 237. 



134 JOHN MARSHALL 

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 re- 
bound went to heights of enthusiasm equaling the 
former depths of despair. 1 Marshall, we may be 
sure, joined with his characteristic zest in the pa- 
triots' revel of happiness. Washington alone had mis- 
givings. He feared that, because of the French al- 
liance, Congress and the States would conclude that 
"we have nothing more to do" and so "relapse into 
a state of supineness and perfect security." 2 Pre- 
cisely this occurred. 

Soon, however, other inspiriting tidings came — 
the British, it was said, were about to quit Phila- 
delphia. The gayety in that city had continued 
throughout the winter, and just before the evacua- 
tion, reached its climax in a festival of almost un- 
believable opulence and splendor. Processions of 
flower-decked boats, choruses, spectacles, and pa- 
rades 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." 3 

When, on June 18, the Royal forces abandoned 
the city, the Americans were quick in pursuit. 

1 Sparks, 267; and Moore's Diary y i, 48-50. 

2 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. 

3 Description by Major Andre, who took part in this amazing per- 
formance, reprinted in American Historical and Literary Curiosities, 
following plate 26. And see Moore's Diary , ii, 52-56. 



VALLEY FORGE AND AFTER 135 

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.' ' l 

It must have been very hot indeed, for Marshall 
himself speaks of "the intense heat"; 2 and he dis- 
liked extreme terms. Marshall was one of the ad- 
vance guard 3 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 or- 
dered Lee to attack the British force "the moment 
it should move from its ground." 4 

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 un- 
happy 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 Ameri- 
cans 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 

1 Trevelyan, iv, 376. 2 Marshall, i, 252. 

3 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. 

4 Marshall, i, 252. 



136 JOHN MARSHALL 

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. Per- 
haps at no time in his life, except at Braddock's de- 
feat, was his peculiar combination of cool-headed 
generalship and hot-blooded love of combat so mani- 
fest 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 re- 
treat. 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." * 

When Washington was preparing the final stroke, 
darkness fell. The exhausted Americans, their cloth- 
ing 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. 2 The Ameri- 
cans lost eight officers and sixty-one privates killed, 

1 Lafayette to Marshall; Marshall, i, footnote to 255. 

2 Marshall, i, 254-59. 



VALLEY FORGE AND AFTER 137 

one hundred and sixty wounded, and one hundred 
and thirty missing. The British left more than two 
hundred and fifty dead upon the field. 1 

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 inci- 
dents. 2 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 Com- 
mander-in-Chief, it is probable that no further action 
would have been taken. 3 

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, Mar- 
shall 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. 4 

This incident throws light upon Marshall's tem- 
perament. Other historians in their eulogy of Wash- 

1 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. 

2 Marshall, i, 251-56. 8 lb., 257. * lb., 257-58. 



138 JOHN MARSHALL 

ington, have lashed the memory of Lee naked 
through the streets of public scorn. Marshall re- 
fuses to join the chorus of denunciation. Instead, 
he states the whole case with fairness. 1 

Three days after Monmouth, he was promoted 
to a full captaincy; 2 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. Con- 
gress 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 be- 
tween the small American forces on opposite sides 
of the Hudson. 3 To restore this severed connection 
was important; and it was essential to arouse once 
more the declining interest of the people. Washing- 
ton 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. 

1 Girardin follows Marshall in his fair treatment of Lee. (Burk, 
iv, 290.) 

2 He was promoted July 1, 1778. (Heitman, 285.) 

3 The whole patriot army everywhere, except in the extreme south 
and west, now numbered only sixteen thousand men. (Marshall, 
i, 306-07.) 



VALLEY FORGE AND AFTER 139 

Upon this "elite of the army," says Dawson, "the 
safety of the Highlands and, indirectly, that of the 
cause of America, were dependent." * This corps of 
picked soldiers was intended for quick and desperate 
enterprises of extra hazard. John Marshall was one 
of those selected. 2 Their first notable task was to 
take Stony Point by assault. Anthony Wayne was 
placed in command. "I have much at heart," Wash- 
ington told Wayne, in the capture of this position, 
"the importance of which ... is too obvious to need 
explanation." 3 

Yet even to these men on missions of such mo- 
ment, supplies came tardily and in scant quantities. 
Wayne's "men were almost naked." 4 

1 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. 

2 Binney, in Dillon, iii, 315-16. The care in the selection of the 
various commands of "light infantry," so often used by Washing- 
ton after the first year of the war, is well illustrated by his orders 
in this case. "The officers commanding regiments," runs Wash- 
ington's orders, "will be particularly careful in the choice of the men. 
. . . The Adjutant General is desired to pass the men . . . under criti- 
cal 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.) 

3 Washington to Wayne (Private and Confidential), July 1, 1779; 
Dawson, 18-19. 

4 Dawson, 20. Wayne's demand for sustenance and clothing, how- 
ever, 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 bor- 
rowed from Gen 1 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 to- 
gether 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 



140 JOHN MARSHALL 

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. 1 

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 detach- 
ment of the Light Infantry, which was to advance 
with unloaded muskets, depending exclusively on the 
bayonet. 2 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. 

[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. " (76., 21.) 

1 Marshall, i, 310. 

2 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 1 ... If any Soldier pre- 
sumes to take his Musket from his Shoulder or Attempt to fire or be- 
gin the battle until Ordered by his proper Officer he shall be Instantly 
put to death by the Officer next him. . . . Should any Soldier ... at- 
tempt 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. t 
35-38.) 



VALLEY FORGE AND AFTER 141 

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." l But the British were overcome more 
easily than anybody had thought possible, 2 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. 3 

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 

1 Wayne to Delaney, July 15, 1779; Dawson, 46-47. 

2 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.) 

3 The fort was captured so quickly that the detachment to which 
Marshall was assigned had no opportunity to advance. 



142 JOHN MARSHALL 

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 Mar- 
shall. 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, pene- 
trating deep into the river," 1 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. 2 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 in- 
vasion of Virginia, John Marshall's active participa- 

1 Marshall, i, 314. 2 76., 314-16. 



VALLEY FORGE AND AFTER 143 

tion in actual warfare ended. He was sent home * 
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. 2 The Revo- 
lution dragged along; misfortune and discourage- 
ment continued to beat upon the granite Washing- 
ton. 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 com- 
mand which never appeared. 

On December 30, 1780, Jefferson received positive 
news of Arnold's invasion. 3 He had been warned by 
Washington that just this event was likely to occur; 4 
but he had not summoned to the colors a single man 
of the militia, probably fifty thousand of whom were 
available, 5 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 

1 The rolls show Marshall in active service as captain until De- 
cember 9, 1779. (Records, War Dept.) He retired from the service 
February 12, 1781. (Heitman, 285.) 

2 Binney, in Dillon, hi, 290. There often were more officers ot a 
State line than there were men to be officered; this was caused by 
expiring enlistments of regiments. 

3 Tucker, i, 136. * Marshall, i, 418. 
6 Ib. t 139. 



144 JOHN MARSHALL 

Richmond on January 4, 1781, without opposition; 
there Arnold burned some military factories and mu- 
nitions, 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. 1 

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. 2 It all but led to his impeach- 
ment by the Virginia Legislature; 3 and to this day 
his biographers are needlessly explanatory and apol- 

1 Marshall, i, 419; Binney, in Dillon, iii, 290. 

2 Even the frightened Virginia women were ashamed. "Such ter- 
ror 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." (lb.) 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 Mar- 
shall, who at that time was in love with this lady's sister, whom 
he married two years later. (See infra, chap, v.) 

3 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.) 



VALLEY FORGE AND AFTER 145 

ogetic 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 unfavor- 
able opinion. 1 

It was his experience, then, on the march, in 
camp, and on the battlefield, that taught John Mar- 
shall 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," 2 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-rattle- 
snake flag inscribed "Don't tread on me," that any- 
thing 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. 3 

1 Monroe, Bland, and Grayson are the only conspicuous exception*. 

2 Story, in Dillon, iii, 338. 

8 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 for- 
ward 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 con* 



146 JOHN MARSHALL 

And when in blue and buff, as an officer of the 
Continental army, he joined Washington, the boy- 
ish Virginia lieutenant was still a frontier indi- 
vidualist, though of the moderate type. But four 
years of fighting and suffering showed him that, 
without a strong and practical government, democ- 
racy 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 actu- 
ally 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." * 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; 2 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, 3 — were still other 

sequences 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, vm.) 
. 1 Marshall, i, 355-65. 2 lb., 422-24. 3 lb., 425. 



VALLEY FORGE AND AFTER 147 

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 expe- 
rience." * 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 suc- 
ceeding circumstance of his swift-moving and drama- 
tic 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 con- 
structive 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 cau- 
tious, constructive, and inclined to order and au- 
thority. 

1 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. 1 More than a year had gone by 
since Colonel Marshall had left his son at Valley 
Forge. On this visit befell the most important cir- 
cumstance 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 

1 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 dis- 
charged and he became "a reduced officer." (Memorial of Thomas 
Marshall, supra. See Appendix IV.) This valuable historical docu- 
ment 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 lie commanding the State Artillery in Vir- 
ginia at that time, but on March 28 tie 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. 



MARRIAGE AND LAW BEGINNINGS 149 

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 "man- 
sion." But the war had ruined him financially; * 
and the year 1780 found theiVmbler family dwell- 
ing in humble quarters. "The small retired tene- 
ment" 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. 2 But 
the reverse of Jacquelin Ambler's fortunes did not 
make this little house less attractive than his "man- 
sion" 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 Bur- 
well threw over Thomas Jefferson. This Virginia 
belle was the love of Jefferson's youth. She was the 
"Campana in die," 3 "Belinda," "Adnileb," and 
"R. B." of Jefferson's letters. 4 But Rebecca Bur- 

1 " Certain it is that another Revolutionary War can never happen 
to affect and ruin a family so completely as ours has been!" It "in- 
volved our immediate family in poverty and perplexity of every kind." 
(Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 
545-47.) 

2 lb. 3 Dog Latin and crude pun for "bell in day." 

4 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 



150 JOHN MARSHALL 

well preferred Jacquelin Ambler and became his 
wife. 1 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 Cap- 
tain John Marshall of the Eleventh Virginia Regi- 
ment 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 para- 
gon" writes Mrs. Carrington, "we had often seen 

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 Re- 
becca Burwell; Green Bag, viii, 481.) 

1 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.) 



MARRIAGE AND LAW BEGINNINGS 151 

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." x 

"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 in- 
troduced"; but Mary Ambler, then only fourteen 
years old, and very diffident and retiring, aston- 
ished 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." 2 

Great was their disappointment when finally 
Captain Marshall arrived. His ungainly dress, 
slouch hat, and rustic bearing instantly quenched 
their enthusiasm. 3 They had looked forward to 
seeing a handsome, romantic figure, brilliantly ap- 
pareled, and a master of all the pleasing graces; in- 
stead 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 awk- 
ward and timid to the point of embarrassment. No 
game was he for Cupid's bow, thought these belles 
of old Yorktown. 

1 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. 

2 lb. 3 i ht 



152 JOHN MARSHALL 

"I, expecting an Adonis, lost all desire of becom- 
ing agreeable in his eyes when I beheld his awkward 
figure, unpolished manners, and total negligence of 
person " ; 1 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 Mar- 
shall was presented to her, both fell in love at first 
sight. Thus began a lifelong romance which, in ten- 
derness, 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 unfavor- 
able first judgment gave way to appreciation. He 
soon became a favorite at every house in the village. 2 
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 de- 
lightfully companionable. 3 Here was preeminently 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. 

1 Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 
547. 

2 Hist. Mag., hi, 165. While this article is erroneous as to dates, 
it is otherwise accurate. 3 76., 167. 








LAST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE DESCRIBING THEIR COURTSHIP 
DATED AT WASHINGTON, FEBRUARY 23, 1824 

(Facsimile) 



MARRIAGE AND LAW BEGINNINGS 153 

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 mel- 
low afternoons, or by candlelight when the sun had 
set, the young lover spent as much time as the pro- 
prieties would permit with Mary Ambler, telling 
her of the war, no doubt; and, as her sister informs 
us, reading poetry by the hour. 1 Through it all he 
made love as hard as he could. He wooed as ardently 
and steadily as he had fought. 2 

The young lover fascinated the entire Ambler 
family. "Under the slouched hat," testifies Mary 
Ambler's sister, "there beamed an eye that pene- 
trated 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 at- 
tached to him, and though there was then no cer- 
tainty 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 feel- 
ing, 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 im- 
provement with our amusements, and thereby gave 

1 Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 547. 
8 Hist. Mag., iii, 167. 



154 JOHN MARSHALL 

us a taste for books which probably we might never 
otherwise have had." * 

The time had come when John Marshall must ac- 
quire a definite station in civil life. This was es- 
pecially necessary if he was to take a wife; and mar- 
ried he would be, he had decided, whenever Mary 
Ambler should be old enough and would consent. 
He followed his parents' wishes 2 and began his prep- 
aration for the bar. He told his sweetheart of his 
purpose, of course, and her family "learned [of it] 
with pleasure." 3 William and Mary College, "the 
only public seminary of learning in the State," 4 was 
only twelve miles from Yorktown; and there the 
young officer attended the law lectures of George 
Wythe for perhaps six weeks 5 — 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." 6 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." 7 

1 Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 547. 

2 Supra, chap. n. 

3 Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 547. 

4 "Notes on Virginia": Jefferson; Works: Ford, iv, 65. 

5 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. 

6 John Brown to Wm. Preston, Feb. 15, 1780; W. and M. C. Q., 
ix, 76. 

7 Mrs. Carrington to her sister Nancy; MS. 



MARRIAGE AND LAW BEGINNINGS 155 

It is said also that Marshall took a course in phi- 
losophy under President Madison, then the head 
of the little college and afterwards Bishop of Vir- 
ginia; but this is unlikely, for while the soldier- 
student took careful notes of Wythe's lectures, there 
is not a word in his notebook * concerning any other 
college activity. The faculty consisted of five pro- 
fessors. 2 The college was all but deserted at that 
time and closed entirely the year after John Mar- 
shall's flying attendance. 3 

Although before the Revolution "the Necessary 
Expence of each Scholar yearly . . . [was] only 15 £ 
Currency," 4 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^ of 
Tobacco." 5 

1 See infra. 

2 The Reverend James Madison, Professor of Natural Philosophy 
and Mathematics; James McClung, Professor of Anatomy and Medi- 
cine; Charles Bellini, Professor of Modern Languages; George Wythe, 
Professor of Law; and Robert Andrews, Professor of Moral and In- 
tellectual Philosophy. (History of William and Mary College, Balti- 
more, 1870, 70-71.) There was also a fencing school. (John Brown 
to Wm. Preston, Feb. 15, 1780; W. and M. C. Q., ix, 76.) 

3 History of William and Mary College, Baltimore, 1870, 45. "Thirty 
Students and three professors joined the army at the beginning of the 
Revolutionary War." (lb., 41.) Cornwallis occupied Williamsburg, 
June, 1781, and made the president's house his headquarters. (Tyler: 
Williamsburg, 168.) 

4 Fithian, 107. 

6 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 



156 JOHN MARSHALL 

The intercourse of students and faculty was ex- 
tremely 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. 1 The students 
were not required to wear either coats or shoes if the 
weather was warm. 2 

At a later period the students boarded at private 
houses in the town. 3 Jefferson, who, several years 

professors was four hundred dollars and that of the president was six 
hundred dollars. 

1 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 Col- 
lege (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 drink- 
ing 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 cus- 
toms 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.) 

2 Infra, chap. vn. 

3 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 nig- 



MARRIAGE AND LAW BEGINNINGS 157 

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." * Chastellux, however, declares that "the 
beauty of the edifice is surpassed [only] by the rich- 
ness of its library and that still farther, by the dis- 
tinguished merit of several of the professors," and 
he describes the college as "a noble establishment 
. . . which does honour to Virginia." 2 

The youths attending William and Mary during 
Marshall's brief sojourn were disgusted by the in- 
difference of the people of the vicinity toward the 
patriot cause. "The want of Men, Money, Provi- 
sions, & 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. 3 

Mr. Wythe, the professor of law, was the life of 

gardly spirit of parsimony which they dignify with the name of econ- 
omy, 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.) 

1 "Notes on Virginia": Jefferson; Works: Ford, iv, 69. 

2 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. 

3 John Brown to Col. Wm. Preston, July 6, 1780; W. and M. C. Q., 
ix, 80. 



158 JOHN MARSHALL 

the little institution in this ebbing period of war- 
time. He established "a Moot Court, held monthly 
or of tener . . . Mr. Wythe & the other professors sit 
as Judges. Our Audience consists of the most re- 
spectable of the Citizens, before whom we plead our 
Causes, given out by Mr. Wythe Lawyer like I as- 
sure you." The law professor also "form'd us into 
a Legislative Body, Consisting of about 40 mem- 
bers." W T ythe constituted himself Speaker of these 
seedling lawmakers and took " all possible pains to 
instruct us in the Rules of Parliament." These nas- 
cent Solons of old William and Mary drew original 
bills, revised existing laws, debated, amended, and 
went through all the performances of a legislative 
body. 1 

The parent chapter of the Phi Beta Kappa So- 
ciety 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." 2 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 

1 John Brown to Col. Wm. Preston, July 6, 1780; W. and M. C. Q., 
ix, 80. 

2 Records, Phi Beta Kappa Society of William and Mary College, 
printed in W. and M. C. Q., iv, 236. 



MARRIAGE AND LAW BEGINNINGS 159 

without much delay. He probably entered college 
about May l. 1 

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 govern- 
ment 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 gen- 
tleman not immediately interested, argued y e Ques- 
tion." 2 

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 lec- 
tures, 3 we find in John Marshall's handwriting the 
words, "Miss Maria Ambler"; and again "Miss M. 
Ambler"; and still again, this time upside down, 

1 Dr. Lyon G. Tyler, now President of William and Mary College, 
thinks that this date is approximately correct. 

2 Records, Phi Beta Kappa Society of William and Mary College; 
printed in W. and M. C. Q. y iv, 236. 

3 See infra. 



160 JOHN MARSHALL 

"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." * 

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 . . . 
Ho 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 can- 
not be said; it consisted of more Beauty and Elegance 
than I had ever witnessed before. ... I was trans- 
ported 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." 2 

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 3 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 Rich- 

1 Marshall's Notebook; MS. See infra. 

2 Betsy Ambler to Mildred Smith, 1780; Atlantic Monthly, lxxxiv, 
536. 

3 See infra. 



MARRIAGE AND LAW BEGINNINGS 161 

mond, where, for two weeks he gayly played the 
part of the head of the family (acted "Pa," as Mar- 
shall quaintly expresses it), apparently in Jacquelin 
Ambler's absence. 1 

Although he had scarcely begun his studies at 
William and Mary; although his previous instruc- 
tion by professional teachers was meager and frag- 
mentary; and although his father could well afford 
the small expense of maintaining him at Williams- 
burg long enough for him to secure at least a moder- 
ate education, John Marshall never returned to col- 
lege. 2 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. 3 

He waited for the recruiting of the new troops he 
was to command, and held himself in readiness to 

1 Marshall to his wife, infra. 

2 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. 

3 County Court Minutes of Fauquier County, Virginia, 1773-80, 
473. 



162 JOHN MARSHALL 

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." 1 

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. 2 He 
would now risk his health no longer. But the laws of 
Virginia made the new method of treating smallpox 
almost impossible. 3 So away on foot 4 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 disreputa- 
ble did he appear that the tavern refused to take 

1 Autobiography. 

2 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. 

3 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 treat- 
ment could not be given. Any physician was fined ten thousand dol- 
lars, 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.) 

4 Horses were very scarce in Virginia at this time. It was almost 
impossible to get them even for military service. 



MARRIAGE AND LAW BEGINNINGS 163 

him in. 1 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 after- 
ward, 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." 2 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." 3 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 w T ith the din- 
ner on the fish at your house the next day: I then 
retrace my visit to York, our splendid assembly at 
the Palace 4 in Williamsburg, my visit to Richmond 

1 Southern Literary Messenger (quoting from a statement by Mar- 
shall), ii, 183. 

2 Mrs. Carrington to her sister Nancy; Atlantic Monthly, Ixxxiv, 
547. 

3 lb., 548. A story handed down through generations of lawyers con- 
firms 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.) 

4 "The Palace" was a public building "not handsome without but 



164 JOHN MARSHALL 

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 * was 
courting you, my trip to the cottage, 2 the lock of 
hair, my visit again to Richmond the ensuing fall, 
and all the thousand indescribable but deeply af- 
fecting 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." 3 

When he left the army in 1781, Marshall, although 
a member of the bar, found no legal business to do. 4 
He probably alternated between the Oak Hill planta- 
tion in Fauquier County, where his help was sadly 
needed, and Richmond, where the supreme attrac- 
tion 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. 5 This 

. . . spacious and commodious within and prettily situated.'* ("Notes 
on Virginia": Jefferson; Works: Ford, iv, 69.) 

1 Richard Anderson, the father of the defender of Fort Sumter. 
(Terhune: Colonial Homesteads, 97.) 

2 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. (76., 26; and Mrs. Carrington to Mrs. Dudley, Oct. 
10, 1796; MS.) 

3 Marshall to his wife, Feb. 23, 1826; MS. 

4 Most of the courts were closed because of the British invasion. 
(Flanders, ii, 301.) 

6 Infra, chap. vi. 



MARRIAGE AND LAW BEGINNINGS 165 

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 mar- 
ried. "In January [3d] 1783," writes Marshall, "I 
intermarried with Mary Willis Ambler, the second 
daughter of Mr. Jacqueiin Ambler, then Treasurer 
of Virginia, who was the third son of Mr. Richard 
Ambler, a gentleman who had migrated from Eng- 
land, and settled at York Town, in Virginia." 1 

The Ambler abode in Richmond was not a roman- 
tic 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 Jacqueiin Ambler took it because, poor as 
it was, it was " the only decent tenement on the hill." 2 

The elder Ambler sister thus pictures the Rich- 
mond of 1780: "This little town is made up of 
Scotch factors who inhabit small tenements scat- 
tered 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 

1 Autobiography. 

2 Betsy Ambler to Mildred Smith, 1780; Atlantic Monthly, lxxxiv, 
537. 



166 JOHN MARSHALL 

a little stronger proceeding higher, whilst a few of 
the stoutest and the boldest reached the summit." * 
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." 2 

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," 3 solved the difficulty 
by offering his country seat for the wedding. 4 Mary 
Ambler was only seventeen when she became the 
young lawyer's bride, 5 and John Marshall was a little 
more than ten years older. After the bridegroom 
had paid the minister his fee, "he had but one soli- 
tary guinea left." 6 

This does not mean that John Marshall was with- 
out 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, 7 had, as we have seen, already 

1 Betsy Ambler to Mildred Smith, 1780; Atlantic Monthly, lxxxiv, 
537. 

2 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.) 

3 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. 

4 Mrs. Carrington to her sister Nancy; Atlantic Monthly, lxxxiv, 
548. 

6 She was born March 18, 1766, and married January 3, 1783. 
(Paxton, 37.) Marshall's mother was married at the same age. 

6 Mrs. Carrington to her sister Nancy; Atlantic Monthly, ]xxxiv,54<8. 

7 Thomas Marshall's will shows that he owned, when he died, 
several years later, an immense quantity of land. 






MARRIAGE AND LAW BEGINNINGS 167 

acquired very considerable property. He owned at 
this time at least two thousand acres in Fauquier 
County; * and twenty-two negroes, nine of them 
tithable (sixteen years old), twelve horses, and 
twenty-two head of cattle. 2 

When John Marshall married Miss Ambler, his 
father gave him one negro and three horses. 3 The 
following year (1784) the Tithable Book shows but 
five tithable negroes, eight young negroes, eight 
horses, and eighteen head of cattle in Thomas Mar- 
shall's name. He evidently sold his other slaves and 
personal property or took them with him to Ken- 
tucky. 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. 4 

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 mem- 
ory, 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 

1 Supra, chap. n. 

2 Fauquier County Tithable Book, 1783-84; MS., Va. St. Lib. 
8 lb. 4 See infra. 



168 JOHN MARSHALL 

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 decep- 
tion in his power in order to work me ... up to his 
price." * 

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." 2 This was a part of the seven- 
teen hundred acres for which the elder Marshall had 
paid " nine hundred and twelve pounds ten shillings " 
seven years before. 3 The change shows the startling 
depreciation of Virginia currency as well as Conti- 
nental paper, both of which in 1780 had reached a 
very low point and were rapidly going down. 4 

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 

1 Washington to Lund Washington, Aug. 15, 1778; Writings: Ford, 
vii, 151-52. 

2 Records of Fauquier County (Va.), Deed Book, vii, 533. 

3 Supra, chap. n. 4 See infra, chap. viii. 



MARRIAGE AND LAW BEGINNINGS 169 

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 him- 
self of the knowledge of Kentucky lands possessed 
by the members of the Marshall family who were on 
the ground. 1 

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." 2 

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 Mar- 
shall 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 wilder- 
ness after he was fifty years of age. Legend has it 
that Thomas Marshall made his venture on Wash- 
ington's advice. At any rate, he settled, perma- 
nently, in Kentucky in the fall of 1783. 3 

1 Marshall to Monroe, Dec. 28, 1784; Monroe MSS., vii, 832; 
Lib. Cong. 

2 Marshall, it 104. 

3 Marshall to Monroe, Dec. 12, 1783; Draper Collection, Wis. Hist. 
Soc. Thomas Marshall first went to Kentucky in 1780 by special per- 
mission 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 de- 



*70 JOHN MARSHALL 

The fledgling lawyer evidently expected to start 
upon a legal career in the county of his birth; but 
immediately after marrying Miss Ambler, he estab- 
lished himself at Richmond, where her family lived, 
and there began the practice of the law. While his 
marriage into the Ambler family was inspired ex- 
clusively 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 busi- 
ness and politics. 

The house to which he took his bride was a tiny 

moralized. (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 dis- 
trict, and was elected to the Legislature and became "Surveyor [Col- 
lector] of Revenue for the District of Ohio." (See infra, chaps, in 
and v.) 



MARRIAGE AND LAW BEGINNINGS 171 

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." * According to Mrs. Carrington the 
dwelling-houses had no curtains for the windows. 2 
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 thor- 
oughfare; 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. ? 
In 1783 the little town was, of course, still more 
primitive. 

There were no brick or stone buildings in Rich- 
mond 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. 4 
The private dwellings, scattered about, were the 
poor, mean, little wooden houses already described 
by Eliza Ambler. 

1 Betsy Ambler to Mildred Smith; Atlantic Monthly, lxxxiv, 537. 

2 Mrs. Carrington to Mildred Smith, Jan. 10, 1786; MS. 

3 Mordecai, 45-47. 4 lb., 40. 



172 JOHN MARSHALL 

Trade was in the hands of British merchants who 
managed to retain their commercial hold in spite of 
the Revolution. 1 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." 2 These clumsy vehicles were sometimes 
a month in covering less than two hundred miles. 3 
Specie was the money chiefly used in the back 
country and the frontier tradesmen made remit- 
tances 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." 4 

There was but one church building and attendance 
was scanty and infrequent. 5 The principal amuse- 
ment was card-playing, in which everybody in- 
dulged, 6 and drinking was the common practice. 7 
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 Legisla- 
ture 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 alto- 

1 Mordecai, chap. ii. 

2 Ib.y 51-52. This was more than twenty years after Marshall and 
his young wife started housekeeping in Richmond. 

3 /&., 53. 4 lb. 

6 Meade, i, 140; Schoepf, ii, 62. 

• Mordecai, chap, xxi; Schoepf, ii, 63 et seq. 

7 See supra, chaps, i and VII. 



MARRIAGE AND LAW BEGINNINGS 173 

gether about the fire, drinking, smoking, singing, 
and talking ribaldry." * 

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 w^hich 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 Carring- 
ton 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 

1 Schoepf, ii, 64. Marshall frequented this place and belonged to 
a club which met there. (See entries from Marshall's Account Book, 
infra.) 



174 JOHN MARSHALL 

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; 1 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. 2 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 Satis- 
faction, one page; Actions in General, one and a half 
pages; Actions Local and Transitory, one fourth 
page; Actions Qui Tarn, one and one fourth pages; 
Actions on the Case, three and one half pages; Agree- 

1 Supra, chap. n. 

2 This invaluable Marshall source is not a law student's common- 
place 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. 



MARRIAGE AND LAW BEGINNINGS 175 

ments, 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; Copar- 
ceners, 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; Dis- 
tress, 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; Execu- 
tion, one and five sixths pages; Executors and Ad- 
ministrators, 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, 



176 JOHN MARSHALL 

two and four fifths pages; Fraud, three pages, one 
line; Grants, three and three fourths pages; Guard- 
ian, 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 fol- 
low 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. 1 

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. 2 He enters in his 
Account Book in 1783 (where it begins) several 

1 The notes are not only of lectures actually delivered by Wythe, 
but of Marshall's reading on topics assigned for study. It is proba- 
ble that many of these notes were made after Marshall left college. 

2 See infra, chap. vi. 



MARRIAGE AND LAW BEGINNINGS 177 

receipts "by my civil list warrants," and several 
others, "Rec^ 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/." 1 

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. [oily] 2 6 dollars." 
A stove "Dutch Oven" cost fourteen shillings and 
eightpence; and "150 bushels coal for self 7-10" 
(seven pounds, ten shillings). 

1 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. (lb.) This, 
indeed, was the case everywhere among women of the best society 
who habitually played cards for money. (Also see Chastellux, 333-34.) 

2 Marshall's wife. 



178 JOHN MARSHALL 

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<? Linnen for P. 2/6; 2 pieces of bobbin 1/6; Tea 
pot 3/; Edging 3/6; Sugar pot 1/6; Milk 1/; Thim- 
ble 4/2; Irons 9/, . . . Tea 20/." 1 

The entries in Marshall's Account Book for the 
first year and a half of his married life are indiscrimi- 
nately 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" 

1 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 stand- 
ard 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. 



MARRIAGE AND LAW BEGINNINGS 179 

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 Marshall as Surveyor of 
Fayette County 100" (pounds). 1 

On July 5, 1784, he enters among receipts "to my 
service in the Assembly 34-4" (pounds and shil- 
lings); and among his expenses for June 22 of that 
year, he enters "lost at Whist £19 " and on the 26th, 
"Col? [James] Monroe & self at the Play 1-10" 2 
(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? Monroe £16-16." He 
was lucky at whist this month, for there are two en- 
tries 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; 3 and there are various 

1 The "University" was William and Mary College, then partly 
supported by a portion of the fees of official surveyors. Thomas Mar- 
shall was now Surveyor of Fayette County, Kentucky. (See supra.) 
This entry occurs several times. 

* Such entries are frequent throughout his Account Book. During 
his entire life, Marshall was very fond of the theater. (See infra, n, 
chap, v; also vol. in of this work.) 

3 Thomas Marshall, born July 21, 1784. (Paxton, 90.) 



180 JOHN MARSHALL 

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 gener- 
osity. Preacher, horse-race, church, festival, card- 
game, or "ball" found John Marshall equally sym- 
pathetic 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 ob- 
ject. 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) * and "to my subscrip- 
tion for race £4-4"; 2 "Saint Taminy 11 Dollars 
— 3-6" 3 (three pounds, six shillings); and still 
again, "paid my subscription to the ball 20/-!"; 
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" 4 (ninety pounds, 
four shillings). And in August of that year, "paid 
for two Negroes £30" and "In part for two servants 

1 Buchanan was the Episcopal clergyman in Richmond at the time. 
(Meade, i, 29, 140.) 

2 The races at Richmond, held bi-annually, were the great social 
events of Virginia. (Mordecai, 178 et seq.) 

3 This fixes the equivalent in State dollars for Virginia pounds and 
shillings. 

4 He already owned one tithable negro in Fauquier County in 1783. 
(Fauquier County Tithable Book, 1783-84 ; MS., Va. St. Lib. See supra.) 



MARRIAGE AND LAW BEGINNINGS 181 

£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, Vir- 
ginia 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 P4 M*. 
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 re- 
ceived 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 shil- 
ling in the Treasury & the keeper of it could not 



182 JOHN MARSHALL 

borrow one on the faith of the government." Mar- 
shall 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 Ma- 
trimony. 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 Mili- 
tary & Civil characters. Carrington, Young, Selden, 
Wright (a merchant), & Foster Webb have alter- 
nately bow'd before her & been discarded. 

"Carrington 'tis said has drawn off his forces in 
order to refresh them & has march'd up to Cumber- 
land where h will in all human probability be rein- 
forced with be dignified character of Legislator. 
Webb has n turned to the charge & the many think 
from their similitude of manners & appetites that 
they were certainly designed for each other. 



MARRIAGE AND LAW BEGINNINGS 183 

" The other Tabby is in high spirits over the suc- 
cess 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 ex- 
perience. 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." 1 

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 pub- 
lic 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 be- 
came 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 dis- 
posed to promote my success in life. . . . John Mar- 
shall, who, though but a young lawyer in 1783, was 
almost at the head of the bar in 1786, offered to take 

1 Marshall to Monroe, Feb. 24, 1784; MS., N.Y. Pub. Lib. Com- 
pare 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 un- 
reserved as he always was in verbal conversation, Marshall's corre- 
spondence 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 enter- 
taining if less trustworthy matter. 



184 JOHN MARSHALL 

me in his office without a fee, and assured me that 
I would become a distinguished lawyer." x 

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«? 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 contribu- 
tions. On January 18, 1785, he enters, "my subscrip- 
tion to Assemblies [balls] 4-4" (pounds and shil- 
lings), and "Jan. 29 Annual subscription for Library 
1-8" (pound, shillings). 

On January 25, 1785, he enters, "laid out in pur- 
chasing 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." 

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" 

1 Gallatin to Maxwell, Feb. 15, 1848; Gallatin's Writings: Adams, 
ii, 659. Also see Mordecai, 94-95. 



MARRIAGE AND LAW BEGINNINGS 185 

and "Blackstones Commentaries 1 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 Chan- 
cellor of England"; the "W T orks 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 cyclopaedia 
of law and business entitled "Lex Mercatoria 
Rediviva or The Merchant's Directory," on the 
title-page of which is written in his early handwrit- 
ing, "John Marshall Richmond." 2 Marshall also 

1 His father must have kept, for the time being, the Blackstone pur- 
chased in 1772, although the volume later turned up in Marshall's 
possession. 

2 This book, with the others named, bears the signature of Mar- 



186 JOHN MARSHALL 

had an English translation of "The Orations of 
/Eschines and Demosthenes on the Crown/' x 

Marshall's wine bills were very moderate for 
those days, although as heavy as a young law- 
yer'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/." 2 

Early in this year Marshall's father, now in Ken- 
tucky and with opulent prospects before him, gave 
his favorite son eight hundred and twenty-four acres 

shall at this period of his life. They are the only books in existence 
which certainly were bought by Marshall at that time, all other vol- 
umes he is positively known to have had in his library being pub- 
lished 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 encyclopaedia of law and busi- 
ness 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. 

1 This book is now in the possession of Hon. William Marshall 
Bullitt, of Louisville, Kentucky. 

2 The numerous entries of this kind occurring throughout Mar- 
shall'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, vn; also chap, n, vol. n, of this work.) 



MARRIAGE AND LAW BEGINNINGS 187 

of the best land in Fauquier County. 1 So the ris- 
ing Richmond attorney was in comfortable circum- 
stances. He was becoming a man of substance and 
property; and this condition was reflected in his 
contributions to various Richmond social and re- 
ligious enterprises. 

He again contributed two pounds to "S* Tam- 
iny's" on May 9, 1785, and the same day paid six 
pounds, six shillings to "My club at Farmicolas." 2 
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? 
Johns [Episcopal Church] £1-16." He was an en- 
thusiastic Mason, as we shall see ; and on September 
13, 1785, he enters, "p<? 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 "Subscrip- 
tion 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 

1 Records of Fauquier County (Va.), Deed Book, viii, 241, March 
16, 1785. 

2 The tavern kept by Farmicola, where Marshall's club met. (See 
supra.) 



188 JOHN MAKSHALL 

in Richmond two negroes (tithable), two horses, and 
twelve head of cattle. 1 

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. 2 

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. 3 

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 shil- 
lings. This year he contributed to festivities and 
social events as usual. In addition to his subscrip- 
tions to balls, assemblies, and clubs, we find that on 
May 22, 1786, he paid nine shillings for a "Barbe- 
cue," 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 

1 Henrico County Tithable Book; Va. St. Lib. He had, of course, 
other slaves, horses, and cattle on his Fauquier County planta- 
tion. 

2 Christian, 28. 

3 Eliza Ambler to Mildred Smith, July 10, 1785; MS.; also printed 
in Atlantic Monthly , lxxxiv, 540-41. 



MARRIAGE AND LAW BEGINNINGS 189 

paid nearly forty-five pounds for the services of 
three physicians. 1 

Among the books purchased was "Blair's ser- 
mons" which cost him one pound and four shil- 
lings. 2 In July he again "P<? for S* 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^burg 7" (pounds) ; and again, 
"expenses going to and returning from Winchester 
15" (pounds); and still again, "expenses going to 
W m !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, "P4Mr. 
B. Lewis in part for his house £70 cash & 5£ in an 
order in favor of James Taylor 75"; and No- 
vember 19, 1786, "Paid Mr. B. Lewis in part for house 
50" (pounds); and in December he again "P4Mr. 
Lewis in part for house 27-4 " (twenty-seven pounds, 
four shillings); and (November 19) "P<? Mr. Lewis 
16" (pounds); and on the 28th, "Paid Mr. Lewis 
in full 26-17-1 1/4." 

In 1786, the Legislature elected Edmund Ran- 

1 Drs. McClurg, Foushee, and Mackie. 

2 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. 



190 JOHN MARSHALL 

dolph Governor; and, on November 10, 1786, Ran- 
dolph advertised that "The General Assembly hav- 
ing 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." * 

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 fore- 
going accounts 508-4-10." And on the opposite page 
he enters 2 — 

To my expenses 432 

1 8 



433 — 8 

In 1787 Marshall kept his accounts in better fash- 
ion. He employed a housekeeper in April, Mrs. Mar- 
shall being unable to attend to domestic duties; and 
from February, 1787, until May of the following 
year he enters during each month, "Betsy Mum- 
kins 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. 3 

In January of 1787 occurred the devastating Rich- 
mond fire which destroyed much of the little city; 4 
and on February 7, Marshall enters among his ex- 
penses, "To my subscription to the sufferers by fire 
21" (pounds). 

1 Christian, 29, 30. 

2 This unbusinesslike balancing is characteristic of Marshall. 

s Jacquelin Ambler Marshall, Dec. 3, 1787. (Paxton, 99.) 4 lb. 



MARRIAGE AND LAW BEGINNINGS 191 

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. 1 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 con- 
tentions of the appellants "would destroy every 
title in the Commonwealth." The case was argued 
for the State by Edmund Randolph, Attorney-Gen- 
eral, 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. 2 

Marshall made an elaborate argument, and since 
it is the first of his recorded utterances, it is import- 
ant 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 prac- 
ticing 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 di- 
rectly in controversy. Indeed, upon a close study 
of the complicated records in the case, it would 

1 Call, i, 42. 2 Records of the Court of Appeals. 



192 JOHN MARSHALL 

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 Fair- 
fax 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 set- 
tlers, 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 dis- 
pute except as to the effect of the sequestration 
laws. 1 It was assailed, however, through suggestion 
at least, both by Attorney-General Randolph and by 
Mr. Taylor. There was, at this time, a strong popu- 
lar 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; 2 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 obliga- 
tions, and assailing of titles. 3 

1 The estate had been sequestered during the Revolution, 

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

3 See infra, chap. vi. 



MARRIAGE AND LAW BEGINNINGS 193 

So, while Baker, the senior Fairfax lawyer, re- 
ferred 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: — 

i "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 admit- 
ting his right, seemed to have fixed it on a founda- 
tion, 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 North- 
ern 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 



194 JOHN MARSHALL 

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, be- 
come 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, meas- 
ure; for still the title must prevail; if he was not en- 
titled, 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 ques- 
tion; 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 Fair- 
fax'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 



MARRIAGE AND LAW BEGINNINGS 195 

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, unculti- 
vated desert.'" 1 

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 Mar- 
shall's earliest effort at the bar, in a case of any 

1 Call, iv, 69-72. 



196 JOHN MARSHALL 

magnitude, was in defense of the title to that estate 
of which, a few years later, he was to become a prin- 
cipal owner. 1 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 no- 
table 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 1 ' G. Wash- 
ington 1-4" (pounds and shillings) and "A. Washing- 
ton 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 pur- 
chase from Aquella and Lucy Dayson of two hun- 
dred and sixty acres of land in Fauquier County, for 
"one hundred and sixty pounds current money of 
Virginia." 2 This purchase, added to the land al- 
ready given him by his father, 3 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 

1 Infra, vol. ii, chap. iv. 

2 Records Fauquier County (Va.), Deed Book, x, 29. 

3 See supra. 



MARRIAGE AND LAW BEGINNINGS 197 

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. 1 The young lawyer was par- 
ticularly 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 2 for Lucy" four pounds, sixteen shil- 
lings; and still later, "for Lucy 10-6" (ten pounds, 
six shillings); and, "P4 for Lucy entering into danc- 
ing 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 in- 
stance, 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 See swpra y 166, footnote 3. 

2 Mrs. Carrington. 



198 JOHN MARSHALL 

£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 sis- 
ter 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 en- 
thusiast in love." * 

Marshall's affection for his wife grew with the 
years and was nourished by her increasing infirmi- 
ties. It is the most marked characteristic of his en- 
tire private life and is the one thing which differen- 
tiates him sharply from most of the eminent men of 
that heroic but, socially, free-and-easy period. In- 
deed, 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. 

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 

1 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. 



*3 





















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C"S1 



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PAGE OF MARSHALL'S ACCOUNT BOOK, MAY, 1787 



MARRIAGE AND LAW BEGINNINGS 199 

reveal this feature of Marshall's character occur 
more vividly after he ascended the bench, 1 the heart 
of the man cannot be understood as we go along 
without noting the circumstance in his earlier mar- 
ried life. 

1 See vol. in 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 1 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 ban- 
quets, and other functions which the merriment or 
inclination of the miniature Capital required. But its 
chief use was to house the legislative majesty of Vir- 
ginia. In this building the General Assembly of the 
State held its bi-y early sessions. Here met the repre- 
sentatives 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. 2 

The twenty years that had passed since Mar- 
shall'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 stock- 

1 Richmond grew rapidly thereafter. The number of houses was 
trebled within a decade. 
8 Schoepf, ii, 55-56. 



LEGISLATURE AND COUNCIL OF STATE 201 

ing, 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 legisla- 
tion and strange civil convulsions. 

The visitor at a session of the Old Dominion's 
lawmakers beheld a variegated array — one mem- 
ber 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 em- 
phasized. 

The looker-on would have thought this gather- 
ing 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. 1 All debating was done by a very 
few men. 2 The others "for most part . . . without 
clear . . . ideas, with little education or knowledge 
. . . merely . . . give their votes." 3 

Adjoining the big room where this august as- 
sembly 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 proceed- 
ings by frequently calling out in a loud voice the 
names of members whom constituents or visitors 

1 Schoepf, ii, 55-56. 2 lb.; and see Journals. s lb., ii, 57. * 



202 JOHN MARSHALL 

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. 1 Outsiders stood in no awe 
of these lawgivers of the people and voiced their con- 
tempt, ridicule, or dislike quite as freely as their 
approval or admiration. 2 

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 in- 
creased by his admirable war record; his mere sug- 
gestion 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. 3 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 back- 
woods of Fauquier County. He probably wore the 
short "round about" jacket, which was his favorite 

1 Schoepf, 55-56. 2 76., 58. 

3 Story, in Dillon, iii, 837. Marshall was a prime favorite of his 
old comrades all his life. (lb.) 



LEGISLATURE AND COUNCIL OF STATE 203 

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 en- 
gaging 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 mem- 
ber, 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, Wil- 
liam Grayson, Edmund Randolph, George Nicholas, 
and others of like stature became Marshall's col- 
leagues. 

It took eighteen days to organize the House at 
the first session John Marshall attended. 1 The dis- 
tance that members had to come was so great, trav- 
eling so hard and slow, that not until November 9 
had enough members arrived to make a quorum. 2 
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. 3 
The Journal for Friday, November 8, gravely an- 
nounces that "it was ordered that Mr. Thomas 

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

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

v, 3 Journal, H.D. (Oct. Sess., 1782), 4-8. 



204 JOHN MARSHALL 

Jefferson, one of the members for Albemarle county 
who was taken into the custody of a special mes- 
senger 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." x 4 •_ . < 

Marshall must have favorably impressed the 
Speaker; for he was immediately appointed a mem- 
ber of the important Committee for Courts of Jus- 
tice; 2 and two days later a member of a special com- 
mittee "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." 3 Two days afterwards Marshall 
was appointed on a special committee to frame a 
bill to amend the ordinance of Convention. 4 

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 re- 
main in Virginia and live with his family. 5 Mar- 
shall'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 hon- 
est business legislation and for a strong and effi- 

1 Journal, H.D. (Oct. Sess., 1782.), 9-10. 2 Ib. y 10. 

3 lb., 13-15. 4 lb., 15. 

5 lb., 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. 



LEGISLATURE AND COUNCIL OF STATE 205 

cient militia. 1 During November, Marshall was ap- 
pointed on several other committees. 2 Of these, the 
most important was the select committee to bring 
in a bill for the reorganization of the militia, 3 which 
reported a comprehensive and well-drawn measure 
that became a law. 4 He was also on the Standing 
Committee of Privileges and Elections. 5 

The Virginia Legislature, during these years, was 
not a body to inspire respect. 6 Madison had a great 
contempt for it and spoke with disgust of the "tem- 
per of the Legislature & the wayward course of its 
proceedings." 7 Indeed, the entire government of 
the State was an absurd medley of changing pur- 
poses and inefficiency. "Nothing," wrote Madison 
to Jefferson, "can exceed the confusion which reigns 
throughout our Revenue department. . . . This con- 
fusion 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." 8 

1 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. (lb., 45.) 

a lb., 23, 25, 27, 36, 42, 45. 3 lb., 23. 

4 Hening, xi, 173-75. 5 Journal, H.D., 36. 

6 "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.) 

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

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



206 JOHN MARSHALL 

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 ses- 
sion." * And the irritated soldier at Mount Vernon 
responded with characteristic heat that "Our As- 
sembly has been . . . employed . . . chiefly in rec- 
tifying some of the mistakes of the last, and com- 
mitting new ones for emendations at the next." 2 
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." 3 

Popular as he was with the members of the Legis- 
lature, Marshall shared Madison's opinion of their 
temper and conduct. Of the fall session of the As- 
sembly 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. 4 ... It ought to be perfect as it has 

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

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

3 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 un- 
makes it." (Ib.) 

4 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 Con- 
gress 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., 
39-31). It was this session that passed the famous act to authorize 



LEGISLATURE AND COUNCIL OF STATE 207 

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 in- 
forcing the attendance of members is now on the 
Carpet and will probably pass. 1 ... It is surprising 
that Gentlemen of character cannot dismiss their 
private animosities, but will bring them in the 
Assembly." 2 

Early in the session Marshall in a letter to Monroe 
describes the leading members and the work of the 
House. 

"The Commutable bill," 3 writes he, "has at 

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 mis- 
statement. Perhaps he underestimated the importance of the work 
done at this particular session. 

1 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 certifi- 
cates of elections, a forfeit of two hundred pounds upon any sheriff 
interfering in any election or showing any partiality toward candi- 
dates. 

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

3 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 



■■, " ■• ' '■ i 



208 JOHN MARSHALL 

length pass'd and with it a suspension of the col- 
lections of taxes till the first of January next. . . . 
Colo. Harry Lee of the Legionary corps" is to take 
the place of "Col? 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) intro- 
duced 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 acri- 
mony and Henry retorted with a good deal of tart- 
ness but with much temper; 'tis his peculiar ex- 
cellence 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." 1 

Marshall's strange power of personality which, 

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. 

1 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. 



LEGISLATURE AND COUNCIL OF STATE 209 

in after years, was so determining an influence on 
the destiny of the country, together with the com- 
bined influence of his father and of the State Treas- 
urer, 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 Coun- 
cil of State, 1 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." 2 
- 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. . . . 

1 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 every- 
body. Still, Marshall's personality must have had much to do with this 
notable advancement. His membership in the Council cannot be over- 
estimated in considering his great conflict with the Virginia political 
"machine" after he became Chief Justice. See volume in of this work. 

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



210 JOHN MARSHALL 

He is clever, but I think too young for that depart- 
ment, which he should rather have earned as a re- 
tirement and reward, by ten or twelve years hard 
service in the Assembly." x 

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. 2 

The Constitution of Virginia of 1776 was the 
basis upon which was built one of the most perfect 
political machines ever constructed; and this ma- 
chine 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. 3 Thus Marshall took part in 
the appointment of surveyors, justices of the peace, 
tobacco inspectors, and other officers; 4 and passed 
on requisitions from other States for the delivery of 
fugitive criminals. 5 

Marshall's signature to the minutes of the Coun- 

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

2 Constitution of Virginia, 1776. 

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

4 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.) 6 76. 




MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF STATE, 1784 




• 
MARSHALL'S SIGNATURE IN 1797 



SIGNATURE OF THOMAS MARSHALL AS COLONEL 
OF THE 3D VIRGINIA REGIMENT 



LEGISLATURE AND COUNCIL OF STATE 211 

cil 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 handwrit- 
ing of a confident, care-free, rollicking young man 
with a tinge of the dare-devil in him. These signa- 
tures are so strangely dissimilar to his later ones 
that they deserve particular attention. They denote 
Marshall's sense of his own importance and his cer- 
tainty 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 an- 
other 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 re- 
quest 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." l 

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 

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



212 JOHN MARSHALL 

with fancy and legend. The cherished story about 
Marshall's resignation from the Council and " spon- 
taneous' ' 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 Mon- 
roe, "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 Mar- 
shall 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." * 

Marshall's personal attention 2 to his candidacy 
bore fruit; and for the second time he was chosen as 
Delegate from Fauquier, although he now lived in 
Henrico County. 3 

When the Legislature convened, nine days again 

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

2 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. 

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




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& 0yi^*^-~/^tz ifa^&tttc^ £**i^c). L^ty/^re^tt 



FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE 

(Facsimile) 



LEGISLATURE AND COUNCIL OF STATE 213 

passed before enough members were in Richmond to 
make up a House. 1 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." 2 

He was at once appointed to his old place on 
the Committee for Courts of Justice and upon the 
immensely important Standing Committee on Prop- 
ositions 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. 3 To the cases of 
his old comrades in arms who applied to the Legisla- 
ture for relief, Marshall was particularly attentive. 4 
He became the champion of the Revolutionary vet- 
erans, most of whom were very poor men. 5 

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 

1 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 Mar- 
shall. 

2 lb. 3 lb. 4 Story, in Dillon, iii, 335-36. 

6 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. 



214 JOHN MARSHALL 

to the American cause during the Revolution, and 
the amendments which, obviously, met all objec- 
tions, the bill was defeated. 1 

Numerous things of human interest happened 
during this session which show the character of the 
Legislature and the state of the people. An Eng- 
lishman named Williamson 2 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. 3 The Attorney-General began prose- 
cutions against the leaders of the mob; and the 
offending ones petitioned the Legislature to inter- 
fere. The petition was referred to the Committee 
on Propositions and Grievances 4 of which Marshall 
was a member. This committee reported that the 
petition ought to be granted "and that all irregular- 
ities committed by any citizen of this state on the 
person or properties of refugees previous to the rati- 
fication of the definitive treaty of peace . . . should 
be indemnified by law and buried in utter obliv- 

1 See chap, viii and footnote to p. 288. 

2 Williamson was a Tory of the offensive type. He had com- 
mitted 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.) 

8 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 com- 
mitted upon the Loyalists by the patriots, even more brutal treatment 
was dealt out to the latter by British officers and soldiers during the 
devolution. (See supra, chap, iv, footnote to p. 116.) 

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



LEGISLATURE AND COUNCIL OF STATE 215 

ion." l But when the bill came to a vote, it was 
defeated. 2 

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 acknowl- 
edgment and apology before the House and thus he 
was purged of the contempt of that sensitive body. 3 

A William Finnie, who had been deputy quarter- 
master 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." 4 
But the House rejected the resolution. Incidents 

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

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

3 Journal, H.D. (Spring Sess., 1784), 57. * lb., 14. 



216 JOHN MARSHALL 

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 com- 
mittees 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 Continen- 
tal army. This bill was passed. 1 i 

A vote which gives us the first sight of Marshall's 
idea about changing a constitution was taken dur- 
ing 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 con- 
trary, it is the express duty of the representatives of 
the people at all times, and on all occasions, to pre- 
serve the same [the Constitution] inviolable, until 
a majority of all the people shall direct a reform 
thereof." 2 

Marshall voted to amend this resolution by strik- 
ing 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 

1 Hening, xi, 390. 2 Journal, H.D., 70-71. 



LEGISLATURE AND COUNCIL OF STATE 217 

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. 1 

A few of the bills that Marshall voted for or re- 
ported from committee are worthy of note, in addi- 
tion to those which had to do with those serious 
questions of general and permanent historic con- 
sequence 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. 2 At the same time this sub- 
ject was also taken up by the Legislature of Mary- 
land. 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 

1 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 pop- 
ulation. Also, the Constitution made possible the perpetuation of 
the Virginia political machine, previously mentioned, which after- 
ward 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.) 

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



218 JOHN MARSHALL 

Company " with a quarter of a million dollars capital. 
It was given the power of eminent domain; was au- 
thorized to charge tolls "at all times forever here- 
after"; and the property and profits were vested in 
the shareholders, " their heirs and assigns forever." l 

John Marshall voted for this bill, which passed 
without opposition. 2 He became a stockholder in 
the corporation and paid several assessments on his 
stock. 3 Thus early did Marshall's ideas on the na- 
ture of a legislative franchise to a corporation ac- 
quire 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 con- 
cerning 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." 4 Three weeks later he reported this 

1 Hening, xi, 510-18. This law shows the chief articles of com- 
merce 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 se- 
quins ; 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 in- 
creasing its alloy it should be received at "its reduced value only." 
{lb.) 

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

3 Marshall's Account Book contains entries of many of these pay* 
ments. 

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



LEGISLATURE AND COUNCIL OF STATE 219 

bill to the House; 1 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, 2 with Marshall who was chairman. 
The act simplified and expedited proceedings in 
equity. 3 The High Court of Chancery had been es- 
tablished by an act of the Virginia Legislature of 
1777. 4 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 practi- 
cal. 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. 5 
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. 6 It 
was to remedy this practical defect of Jefferson's 

1 Journal, H.D. (Nov. 1787), 70. 2 76., 27. 

3 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." (76.) 

4 76., ix, 389-99. 5 lb., xi, 342-44, 

6 See Jefferson's letter to Mazzei, explaining the difference be- 
tween 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.) 



220 JOHN MARSHALL 

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 au- 
thority 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. 1 

The religious warfare 2 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 man- 
ners and morals prevails among us, to the destruc- 
tion of all confidence between man and man." 3 The 
want of public worship "increases daily; nor have 

1 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.) 

2 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 Vir- 
ginia Legislature see ib.y chap. v. 

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



LEGISLATURE AND COUNCIL OF STATE 221 

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. 1 

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 miser- 
able wages they earned from physical labor. 2 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. 3 

There were gross inequalities of religious privi- 
leges. Episcopal clergymen could perform mar- 
riage 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. 3 It was a 
curious swirl of conflicting currents. Out of it came 

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

2 Eckenrode: S. of C. and S., 75. On this general subject see 
Meade, i, chaps, i and ii. "Infidelity became rife, in Virginia, per- 
haps, beyond any other portion of land. The Clergy, for the most 
part, were a laughing stock or objects of disgust." (lb., 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." (lb., 27.) 

"One sees not only a smaller number of houses of worship [in Vir- 
ginia] 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.) 

3 Henry, ii, 199-206. * Eckenrode: S. of C. and <S., 77. 



M2 JOHN MARSHALL 

the proposition to levy an assessment on every- 
body 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. 1 

Although these propositions were debated at great 
length and with much spirit and many votes were 
taken at various stages of the contest, Marshall re- 
corded his vote but twice. He did not vote on the 
resolution to incorporate the Episcopal Church; 2 
or to sell the glebe lands; 3 nor did he vote on the 
marriage bill. 4 He voted against Madison's motion 
to postpone consideration of the bill for a general 
assessment to support religion, which carried, 5 thus 
killing the bill. When the bill to incorporate the 
Episcopal Church came to a final vote, Marshall 
voted "aye," as, indeed, did Madison. 6 

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 Fed- 

1 Journal, H.D. (2d Sess., 1784), 19. 2 /&., 27. 

3 Ib. y 82. 4 lb. 5 lb. 

6 lb., 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 modifica- 
tion 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.) 



LEGISLATURE AND COUNCIL OF STATE 223 

eral Government with powers necessary to its exist- 
ence. 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" x 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 moun- 
tains 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. 2 

1 Story, in Dillon, iii, 338. 

2 "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 be- 
come 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 ex- 



224 JOHN MARSHALL 

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. 1 The Treaty be- 
tween 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. 2 Failure to repeal the anti-debt legis- 
lation passed during the war was, of course, a plain 
infraction of this contract between the two coun- 
tries; 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 com- 
pliance with the stipulation contained in the de- 
finitive Treaty of Peace entered into between Great 

tremely partial to the debtors, of whom he was one. (Jefferson to 
Meusnier, Jan. 24, 1786; Works: Ford, v, 28.) 

i Most of Jefferson's earlier debts were contracted in the purchase 
of slaves. "I cannot decide to sell my lands. . . . nor would I will- 
ingly 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 pur- 
chasing them." (Jefferson to Lewis, July 29, 1787; ib., 311.) 

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

2 Definitive Treaty of Peace, 1783, art. 4. / 



LEGISLATURE AND COUNCIL OF STATE 225 

Britain and America ought to be repealed"; but a 
motion to put the question to agree with this resolu- 
tion was defeated by a majority of twenty. John 
Marshall voted to put the question. 1 

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 sur- 
rendered 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. 2 
A fortnight after the first defeat of the movement 
against the anti-debt law, a resolution was laid be- 
fore the House instructing Virginia's Representa- 
tives 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 co- 
operate "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 con- 
sist with the exhausted situation of this Common- 
wealth"; 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 

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

1 Z6.,54; 72-73. The Treaty required both. 



226 JOHN MARSHALL 

pre vented.' ' 1 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 pre- 
vailed. Marshall voted for both as did Madison. 
The amendments, however, were overwhelmingly 
defeated. 2 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 com- 
pelled 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." 3 

After the summer adjournment the irrepressible 
conflict between keeping or breaking the National 
faith once more arose. Henry, who was the cham- 
pion of the debtors, had been elected Governor and 

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

2 76., 74-75. Henry led the fight against repealing the anti-debt 
laws or, as he contended, against Great Britain's infraction of the 
Treaty. 

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



LEGISLATURE AND COUNCIL OF STATE 227 

was "out of the way" l 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 pri- 
vate 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, exam- 
ined, 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 2 
and they could not get back. So this important 
measure fell through for the session. 3 

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 influ- 
ence 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 

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

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

3 Ib. 



228 JOHN MARSHALL 

it as a measure tending to weaken the federal bands 
which in ray 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 indi- 
vidual was not particularly interested, has passed." l 

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 Mar- 
shall'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 dis- 
tressed. 2 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. 3 

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

2 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? 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?. Cong?, 
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 & respect- 
ability has been opposed." (Madison to Monroe, Dec. 30, 1785; ib. t 
211.) 

3 Curiously enough, it fell to Jefferson as Secretary of State to re- 
port 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. 



LEGISLATUEE AND COUNCIL OF STATE 229 

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 Mar- 
shall, who was now a member of the Virginia Legis- 
lature from the District of Kentucky. 1 Another 
amendment to pay the British debts "in such time 
and manner as shall consist with the exhausted situ- 
ation of this Commonwealth" met a similar fate, 
both Marshalls, father and son, voting against it. 2 
The resolution was then passed, the two Marshalls 
voting for it. 3 

Marshall was then appointed a member of the 
special committee to prepare and bring in a bill to 
carry out the resolution. 4 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 

1 Journal, H.D. (1787), 51. 2 lb., 52. 

3 lb. James Monroe was a member of the House at this session and 
voted against the first amendment and for the second. On the con- 
trary, Patrick Henry voted for the first and against the second amend- 
ment. George Mason voted against both amendments. So did Daniel 
Boone, who was, with Thomas Marshall, then a member of the Vir- 
ginia 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. 

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



230 JOHN MARSHALL 

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 Brit- 
ish creditors to recover their debts agreeably to the 
terms of the treaty." * 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 here- 
tofore 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 re- 
turn the runaway slaves or to pay for them. They 
succeeded. Whether from agitation outside the leg- 
islative hall 2 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 

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

2 "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 peo- 
ple 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 
*" Dolicy. 



LEGISLATURE AND COUNCIL OF STATE 231 

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. 1 

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. 2 
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 whimsi- 
cal capriciousness of the General Assembly, created 
grave misgivings in his mind. His youthful sym- 
pathy 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 im- 
pressed Marshall even more than the spirit of re- 
pudiation of debts and breaking of contracts which 
was back of the anti-debt legislation. 3 The want of 

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

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

3 For an excellent statement regarding payment of British debts, 
see letter of George Mason to Patrick Henry, May 6, 1783, as quoted 



232 JOHN MARSHALL 

the National power during the Revolution, which 
Marshall had seen from the "lights . . . which 
glanced from the point of his sword," 1 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. 2 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 mas- 
querade " 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 Brit- 
ain compelled some kind of solidarity; the idea of co- 
operation was even less robust than it was when fear 
of French and Indian depredations forced the colo- 
nists to a sort of common action. Also, as we shall 
see, a general dislike if not hostility toward all gov- 
ernment whether State or National was prevalent. 3 

As to the National Government, it would appear 
that, even before the war was over, the first impulse 

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. 

1 Story, in Dillon, iii, 338. 

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

3 For a general review of the state of the country see infra, chaps. 
vii and vin. 



LEGISLATURE AND COUNCIL OF STATE 233 

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 au- 
thorizing 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." 1 

A year later the Legislature was persuaded again 
to authorize Congress to levy this duty; 2 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. 3 At the time this misshapen dwarf of a Na- 
tionalist law was begotten by the Virginia Legis- 
lature, 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 

1 Hening, xi, chap, xlii, 171. s lb., chap, xxxi, 350. 

3 Journal, H.D., 52. 



234 JOHN MARSHALL 

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 quan- 
tity and value of land as well as the number of 
people in each State. 

On May 19, 1784, 1 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 appor- 
tioning the debt among the States; favored provid- 
ing 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. 2 
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 

1 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. 

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



LEGISLATURE AND COUNCIL OF STATE 235 

authorizing Congress to pass retaliatory trade laws. 
George Mason and Patrick Henry also were members 
of this committee on which the enemies of the Na- 
tional idea had a good representation. Two weeks 
later the bills were reported. 1 Three weeks after- 
wards the retaliatory trade bill was passed. 2 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 provi- 
sion 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 mo- 
ment 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 wil- 
derness subduers, vague and far-away engagements 
which surely never were meant to affect those on the 
outskirts of civilization; and most certainly could 

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

2 lb., 81; also, Hening, xi, 388. 



236 JOHN MARSHALL 

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 Govern- 
ment'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 exter- 
minated like other savage beasts? Were not the 
Indians the natural foes of these white Lords of 
the earth? * 

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 contigu- 
ous to the U. States, particularly the Spaniards, by 
the licentious & predatory spirit of some of our West- 
ern people. In several instances, gross outrages are 
said to have been already practiced." 2 Jay, then 
Secretary of State, mournfully wrote to Jefferson in 
Paris, that "Indians have been murdered by our 

1 "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 skir- 
mish." (Wirt, 257.) 

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



LEGISLATURE AND COUNCIL OF STATE 237 

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 civil- 
ized nation had "reason ... to apprehend an Indian 
war." * 

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 au- 
tumn 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 gen- 
eral historic importance because it was among the 
first, if not indeed the very first, ever passed by any 
legislative body against filibustering. 2 

The feebleness of the National idea at this time; the 
grotesque notions of individual "rights"; the weak* 

1 Jay to Jefferson, Dec. 14, 1786; Jay: Johnston, iii, 224. 
8 Hening, xi, 471; and Henry, ii, 217. 



238 JOHN MARSHALL 

ness 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 espe- 
cially 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 un- 
known to the law of nations." * 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 back- 
woodsmen? 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 be- 
fore Virginia juries for something they had done in 
the fastnesses of the far-away forests of the West and 

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



LEGISLATURE AND COUNCIL OF STATE 239 

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? 1 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." 2 Such 
were the conservative opinions of James Madison 
three years before he helped to frame the National 
Constitution. 

Madison saw, too, — shocking treason to "lib- 
erty," — "the necessity of a qualified interpreta- 
tion of the bill of rights," 3 if we were to maintain the 
slightest pretense of a National Government of any 
kind. The debate lasted several days. 4 With all the 
weight of argument, justice, and even common pru- 
dence 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 ora- 
tory. 5 

1 Article viii, Constitution of Virginia, 1776. 

2 Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 111. 
8 lb. 4 Journal, H.D. (2d Sess., 1784), 34-41. 

fi "The measure was warmly patronized by Mr. Henry." (Madison 



240 JOHN MARSHALL 

The bill was so mangled in committee that it was 
made useless and it was restored only by amend- 
ment. 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. 1 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. 2 

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-grow- 
ing Nationalist views. The extravagance of those 
who saw in the Bill of Rights only a hazy "liberty" 

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 inter- 
marriages 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 hus- 
band 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. (lb.) 

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. 

1 Journal, H.D. (2d Sess., 1784), 41. 2 lb. 



LEGISLATIVE AND COUNCIL OF STATE 241 

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 amal- 
gamation. He earnestly supported Henry's bill for 
subsidizing marriages of natives and whites l and 
was disappointed by its defeat. 

"We have rejected some bills," writes Marshall, 
"which in my conception would have been advan- 
tageous 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." 2 

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 ab- 
stract notions of National honor and National 
power, nor by any of those high and rational ideas 
of government which it has become traditional to 

1 See note 5, p. 239, ante. 

2 Marshall to Monroe, Dec., 1784; MS. Monroe Papers, Lib, 
Cong.; also partly quoted in Henry, ii, 219. 



242 JOHN MARSHALL 

ascribe as the only source and cause of our funda- 
mental 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 so- 
ciety. The determination of commercial and finan- 
cial 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 Con- 
federation and chiefly as concerned the National 
regulation of commerce. 1 

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 Na- 
tional 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 sec- 
ond 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 Constitu- 
tion, John Marshall, for the third time, sought elec- 
tion to the Legislature. His views about govern- 
ment 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 
1 See infra, chap. ix. 



LEGISLATURE AND COUNCIL OF STATE 243 

flinging as far as he could against the existing chaos 
and against everybody who opposed a strong Na- 
tional 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 Con- 
stitution was adopted. 1 

But Marshall was as hot a Nationalist as Wash- 
ington 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, legis- 
lative experience, and general observation had mod- 
ified his youthful democratic ideals, while strength- 
ening and confirming that Nationalism taught him 
from childhood. Marshall himself afterwards de- 
scribed his state of mind at this period and the 
causes that produced it. 

"When I recollect," said he, "the wild and en- 
thusiastic 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 com- 
petent to its preservation, at least as much to casual 

1 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. 



244 JOHN MARSHALL 

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-citi- 
zens of Boston were identical; when the maxim, 
4 United we stand, divided we fall,' was the maxim of 
every orthodox American. 

"And I had imbibed these sentiments so thor- 
oughly 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 valua- 
ble 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 ten- 
dency of State politics convinced me that no safe 
and permanent remedy could be found but in a 
more efficient and better organized General Gov- 
ernment." 1 

On the third day of the fall session of the Virginia 
Legislature of 1787, the debate began on the ques- 
tion of calling a State Convention to ratify the 
proposed National Constitution. 2 On October 25 the 
debate came to a head and a resolution for calling 
a State Convention passed the House. 3 The debate 

1 Story, in Dillon, iii, 338, 343. 

> Journal, H.D. (Oct. Sess., 1787), 7. ■ 76., 11, 15. 



LEGISLATURE AND COUNCIL OF STATE 245 

was over the question as to whether the proposed 
Convention should have authority either to ratify 
or reject the proposed scheme of government en- 
tirely; or to accept it upon the condition that it be 
altered and amended. 

Francis Corbin, a youthful member from Middle- 
sex, 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 in- 
stantly was on his feet. He was for the Conven- 
tion, he said: "No man was more truly federal than 
himself." But, under Corbin's resolution, the Con- 
vention 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 Con- 
vention might propose amendments 1 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 Con- 
stitution, 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 Philadel- 
1 Pennsylvania Pockety Nov. 10, 1787; Pa. Hist. Soc. 



246 JOHN MARSHALL 

phia 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. * He had " deeply 
and maturely weighed every article of the new Con- 
stitution," avowed Mason, and if he had signed it, he 
"might have been justly regarded as a traitor to my 
country. I w r ould have lost this hand before it should 
have marked my name to the new government." 2 

At this juncture, Marshall intervened with a 
compromise. The Constitutionalists were uncertain 
whether they could carry through Corbin's resolu- 
tion. 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 Con- 
vention that should devise another sytsem of gov- 
ernment to take the place of the one which the first 
Federal Convention, after much quarreling and dis- 
sension, finally patched up in Philadelphia. 3 

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 

1 Infra, chaps, xi and xn. 

2 Pennsylvania Packet, Nov. 10, 1787; also see in Rowland, ii, 176. 

3 Infra, chaps, ix, xii; and also Washington to Lafayette, Feb. 
7, 1788; Writings: Ford, xi, 220. 



LEGISLATURE AND COUNCIL OF STATE 247 

Virginia Convention should not be confined to a 
straight-out acceptance or rejection of the new Con- 
stitution; but, on the other hand, it would never do 
for the word to go out to the other States that Vir- 
ginia in no event would accept the Constitution un- 
less she could propose amendments to it. He agreed 
with Nicholas entirely on that point. 

Marshall also pointed out that the people of Vir- 
ginia ought not to be given to understand that their 
own Legislature was against the proposed Constitu- 
tion 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." * 

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 Conven- 
tion 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 cer- 
tain that they would be able to defeat or alter it. 

1 Pennsylvania Packet, Nov. 10, 1787; Pa. Hist. Soc. 



248 JOHN MARSHALL 

Marshall's resolution, therefore, passed the House 
"unanimously." * Other resolutions to carry Mar- 
shall's resolution into effect also passed without op- 
position, 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." 2 But the third 
month of the session was half spent before the Senate 
passed the bill. 3 Not until January 8 of the follow- 
ing year did it become a law. 4 

In addition, however, to defining the privileges of 
the members and providing money for its expenses, 
the bill also authorized the Convention to send rep- 
resentatives "to any of the sister states or the con- 
ventions 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 conven- 
tion." 5 Thus the advocates of a second general 
Convention to amend the Articles of Confeder- 
ation 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 Mar- 
shall was among the first in the field with rifle, 

1 Journal, H.D. (Oct. Sess., 1787), 15. * 76. 

8 76., 95. 4 76. (Dec, 1787), 143, 177. 

8 Hening, xii, 462-63. 



LEGISLATURE AND COUNCIL OF STATE 249 

tomahawk, and seal ping-knife, to fight for Inde- 
pendence, so, now, he was among those first in the 
field with arguments, influence, and political activi- 
ties, fighting for Nationalism. 



CHAPTER Vn 

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 lum- 
bering 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. 1 

This passageway through the forest, called a 
"road," was the thoroughfare between Philadelphia 
and Baltimore and a part of the trunk line of com- 
munication 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. 2 

The passengers often had to abandon this four- 
wheeled contraption altogether and walk in the mud; 

1 Weld, i, 37-38; also, Morris, ii, 393-94. 2 Weld, i, 38. 



COMMUNITY ISOLATION 251 

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. 1 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. 2 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 condi- 
tions of travel were an index to the state of the coun- 
try 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 con- 
sideration 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 

1 Baily's Journal (1796-97), 108. 2 lb., 109-10. 



252 JOHN MARSHALL 

amendments. We are to listen to those "debates'' 
which, alone, are supposed to have secured ratifica- 
tion, but which had no more, and indeed perhaps less 
effect than the familiar devices of "practical poli- 
tics" in bringing about the adoption of our funda- 
mental law. 

Since the victory at Yorktown a serious altera- 
tion had taken place in the views of many who had 
fought hardest for Independence and popular gov- 
ernment. 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 es- 
teemed 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 princi- 
pal 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. Wash- 
ington, as we shall see, soon after peace was de- 
clared, lost much of his faith in the people; Madison 
arrived at the opinion that the majority were un- 
equal to the weightier tasks of popular rule; and 
Marshall also finally came to entertain the melan- 
choly fear that the people were not capable of self- 



COMMUNITY ISOLATION 253 

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 multi- 
tude. The fires of Jefferson's faith still burned, and, 
indeed, burned more brightly; for that great re- 
former 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 gov- 
ernment. 

This revolution in the views of men like Wash- 
ington, 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 en- 
vironment 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 indi- 
vidualism, 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 eco- 
nomic condition strengthened, if, indeed, this cir- 



254 JOHN MARSHALL 

cumstance did not create that sullen and dangerous 
state of mind — an understanding of all these ele- 
ments 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 pur- 
chasers. Why, exclaimed the popular voice, should 
this expedient of war be recognized? Discharge of 
such public obligations meant very definite individ- 
ual 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 infor- 
mation would reach the great body of our popula- 
tion and the common hearthstone thus become the 
place of purest and soundest judgment. So it is im- 
possible to comprehend or even apprehend his in- 
tellectual metamorphosis during this period unless 
we survey the physical, mental, and spiritual state 
of the country. How the people lived, their habits, 



COMMUNITY ISOLATION 255 

the extent of their education, their tendency of 
thought, and, underlying all and vitally affecting 
all, the means or rather want of means of communi- 
cation — a knowledge of these things is essential 
to an understanding of the times. 1 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 in- 
dispensable, 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 pro- 
ceed on his journey; 2 and this, too, over the prin- 
cipal 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 

1 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. 

2 Weld, i, 47-48. 



256 JOHN MARSHALL 

was established. 1 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 " ; 2 
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." 3 

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 jour- 
ney. 4 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." 5 

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," 6 testifies a 
traveler. In central Massachusetts, the roads "were 
intolerable" even to a New Englander; and "the 

1 Johnston to Iredell, Jan. 30, 1790; McRee, ii, 279. 

2 " Letters of a Federal Farmer," no. 2; Ford: P. on C, 292. 
8 /&., no. 3, 302. 

4 De Warville made a record trip from Boston to New York in less 
than five days. (De Warville, 122.) But such speed was infrequent. 

6 Josiah Quincy's description of his journey from Boston to New 
York in 1794. (Quincy: Figures of the Past, 47-48.) 

6 De Warville, 138-39. 



COMMUNITY ISOLATION 257 

country was sparsely inhabited by a rude popula- 
tion." x In Rhode Island not far from Providence 
the traveler was forced to keep mounting and dis- 
mounting from his horse in order to get along at 
all. 2 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 Phila- 
delphia. 3 

Farmers only a short distance from New York 
could not bring their produce to the city in the 
winter because the roads were impassable. 4 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." 5 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." 6 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 

1 Watson, 266. 

2 "The road is execrable; one is perpetually mounting and descend- 
ing and always on the most rugged roads." (Chastellux, 20.) 

3 Elliott, ii, 21-22. 

4 "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: Pick- 
ering, i, 392.) 

5 Cooper, 1875-86, as quoted in Hart, iii, 98. 6 lb. 



258 JOHN MARSHALL 

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. 1 

Twenty days was not an unusual time for ordi- 
nary wagons, carrying adventurous settlers to the 
wilderness west of the Alleghanies, to cross Penn- 
sylvania from Philadelphia to Pittsburg; 2 and it 
cost a hundred and twenty dollars a ton to haul 
freight between these points. 3 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* for trial." 4 

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. 5 •*-■. 

1 Watson, 270. Along one of the principal roads of New York, as 
late as 1804, President Dwight discovered only "a few lonely planta- 
tions" 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 y 384.) 

2 Hart, iii, 116. 

3 Mag. Western Hist, i, 530. 

4 Justice Cushing to Chief Justice Jay, Oct. 23, 1792; Jay: Johnston, 
iii, 450. 

6 Memoirs of Talleyrand: Broglie's ed., i, 170-77. 



COMMUNITY ISOLATION 259 

"The length and badness of the roads from hence 
[Mount Vernon] to Philadelphia" made Washing- 
ton grumble with vexation and disgust; 1 and Jef- 
ferson 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." 2 

No more comfortable or expeditious, if less dan- 
gerous, 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." 3 

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. 4 "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 5 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 

1 Washington to Jay, Nov. 19, 1790; Jay: Johnston, iii, 409. 

2 Jefferson to Washington, March 27, 1791; Cor. Rev.: Sparks, 
iv, 366. 

3 Washington's Diary: Lossing, Feb. 25, 1791. 

4 Washington to Jay, Dec. 13, 1789; Jay: Johnston, iii, 381. 

6 Jefferson to T. M. Randolph, March 28, 1790; Works: Ford, vi, 
36. 



260 JOHN MARSHALL 

woods." So confusing was the way through this 
forest that part of this time he was within three 
miles of his destination. 1 Twelve years after our 
present Government was established James A. Bay- 
ard 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." 2 

Throughout Virginia the roads were execrable and 
scarcely deserved the name. The few bridges usu- 
ally were broken. 3 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. 4 Traveling in Virginia was almost exclu- 
sively by horseback; only negroes walked. 5 Ac- 
cording 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 Common- 
wealth 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. 6 

If horseback journeys were sore trials to the rider, 
they were desperately hard and sometimes fatal to 

1 Weld, i, 91. 

2 Bayard to Rodney, Jan. 5, 1801; Bayard Papers: Donnan, ii, 118. 
» Schoepf, ii, 46. * 4 lb., 78. B Ib. t 45. 6 Grigsby, i, 26. 



COMMUNITY ISOLATION 261 

the poor brute that carried him. In crossing un- 
fordable rivers on the rude ferryboats, the horses' 
legs frequently were broken or the animals them- 
selves often killed or drowned. 1 From Fredericks- 
burg to Alexandria the roads were "frightfully 
bad." 2 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. 3 South 
of Jamestown the crude and hazardous highways 
led through "eternal woods." 4 

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 back- 
woods of Maryland. 5 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. 6 It cost more to trans- 
port tobacco from Augusta County, Virginia, to 
market than the tobacco was worth, so difficult and 
expensive was the carriage. 7 

A sergeant in a Virginia regiment during the Rev- 

1 Weld, i, 170. 2 Watson, 60. 3 Davis, 372. 4 Schoepf, ii, 95. 
6 Wilkinson: Memoirs, i, 9-10. The distance which General Wilkin- 
son's mother thought "so far away" was only forty miles. 

6 Schoepf, ii, 53. 7 Zachariah Johnson, in Elliott, iii, 647. 



262 JOHN MARSHALL 

olutionary Wai, 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 pay- 
ment 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. 1 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," 2 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 im- 
ports is not less than 50 per ct.," testifies Madison. 3 
Only in the immediate neighborhood of Phila- 
delphia, Boston, 4 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." 5 

1 Journal, H.D. (1790), 13. 

2 Madison to Lee, July 7, 1785; Writings: Hunt, ii, 149-51. 
8 lb. 

4 Boston was not a "city" in the legal interpretation until 1822. 
6 Chastellux, 225. "The difficulty of finding the road in many 
parts of America is not to be conceived except by those strangers who 



COMMUNITY ISOLATION 263 

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. 1 Again, the wan- 
derer 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 uncom- 
mon experience. 2 

Even when the road could be traced, bears would 
follow it, so much was it still a part of their savage 
domain. 3 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. 4 Six years after the Constitution 

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, an- 
other 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 pas- 
sengers and negroes." (lb. Translator's note.) 

1 Smyth, Tour of the United States, i, 102-103. 

2 Watson, 40. "Towards the close of the day I found myself en- 
tangled among swamps amid an utter wilderness, and my horse al- 
most 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 retraeing 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 fall- 
ing a prey to wild beasts before morning." (lb.) 

3 lb. 

4 "I waited at Baltimore near a week before I could proceed on my 



264 JOHN MARSHALL 

was adopted, Talleyrand found the buildings of that 
ambitious town "disputing] the ground with trees 
whose stumps have not yet been removed/ ' 1 

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 

journey the roads being rendered impassable." (Baily's Journal 
(1796-97), 107.) 
1 Memoirs of Talleyrand: Broglie's ed., i, 177. 



COMMUNITY ISOLATION 265 

was sent; and another letter between the same cor- 
respondents was eight days on the journey. 1 

Yet this was unusually expeditious. One month 
later, on January 26, 1795, Madison wrote Jefferson 
that "I have received your favor of Dec! 28, but 
[not] till three w T eeks after the date of it." 2 Sum- 
mer, 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 acces- 
sible Virginia county seat. 3 Letters from Rich- 
mond, Virginia, to New York often did not arrive 
until two months after they were sent. 4 But better 
time was frequently made and a letter between these 
points was, commonly, hurried through in a month. 5 

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. 6 A letter 
posted by Rufus King in Boston, February 6, 1788, 
to Madison in New York was received February 15 ; 7 
and although anxiously awaiting news, Madison 

1 Madison to Jefferson, Dec. 21, 1794; Writings: Hunt, vi, 227. 

2 Madison to Jefferson, Jan. 26, 1795; ib., 230. 

3 "Your favor of July 6 having been address d to Williamsburg, in- 
stead of Orange C. Ho[u]se, did not come to hand till two days ago.'* 
(Madison to Livingston, Aug. 10, 1795; ib., vi, 234.) 

4 Lee to Henry, May 28, 1789; Henry, iii, 387. 
6 Lee to Henry, Sept. 27, 1789; Henry, iii, 402. 

6 Ephraim Douglass to Gen. James Irvine, 1784; Pa. Mag. Hist, and 
Biog., i, 50. 

7 Madison to Washington, Feb. 15, 1788; and King to Madison, 
Feb. 6, 1788; Writings: Hunt, v, footnote to p. 100. 



266 JOHN MARSHALL 

had not, on February 11, heard that Massachu- 
setts had ratified the Constitution, although that 
momentous event had occurred five days before. 1 
New York first learned of that historic action eight 
days after it was taken. 2 But for the snail-like slow- 
ness of the post, the Constitution would certainly 
have been defeated in the Virginia Convention of 
1788. 3 

Transatlantic mail service was far more expedi- 
tious considering the distance; a letter from Jay in 
London reached Wolcott at Philadelphia in less than 
eight weeks. 4 But it sometimes required five months 
to carry mail across the ocean; 5 even this was very 
much faster than one could travel by land in Amer- 
ica. Four weeks from Cowes, England, to Lynn- 
haven Bay, Virginia, was a record-breaking voyage. 6 

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. 7 "By passing through the post-office they 
[letters] should become known to all" men, Wash- 

1 Madison to Washington, Feb. 11, 1788; Writings: Hunt, v, 99. 

2 Madison to Washington, Feb. 15, 1788; ib., 100. 

3 The Randolph-Clinton Correspondence; see infra, chap. x. 

4 Jay to Wolcott, mailed June 23, and received by Wolcott Aug. 
16, 1794; Gibbs, i, 157. 

8 76., 160. 

• Jefferson to Short, Nov. 21, 1789; Works: Ford, vi, 20. 

7 So notorious was this practice that important parts of the cor- 
respondence 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 



COMMUNITY ISOLATION 267 

ington cautioned Lafayette in 1788. 1 In 1791, the 
first year of the Post-Office under our present Gov- 
ernment, there were only eighty-nine post-offices in 
the entire country. 2 "As late as 1791 there were 
only six post-offices in New Jersey and none south of 
Trenton." 3 

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 informa- 
tion, 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; 4 in Ridgefield, with twelve hundred in- 
habitants, there were but four newspaper subscrib- 
ers. 5 In 1784, Virginia had only one newspaper, 
published at Richmond twice a week. 6 

to Fairfax, June 25, 1786; Writings: Sparks, ix, 175.) Habitual viola- 
tion of the mails by postmasters continued into the first decades of 
the nineteenth century. 

1 Washington to Lafayette, Feb. 7, 1788; Writings: Ford, xi, 218. 

2 Kettell, in Eighty Years' Progress, ii, 174. 

3 Pa. Mag. Hist, and Biog., ix, 444. 

' 4 Am. Ant. Soc. Pubs., xxiii, Part ii, 254-330. 5 Goodrich, i, 61. 
6 Schoepf, ii, 61; see note, ib. Even this journal died for want of 
subscribers. 



268 JOHN MARSHALL 

These papers carried scarcely any news and the 
little they published was often weeks and some- 
times 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." * "Newspaper para- 
graphs, unsupported by other testimony, are often 
contradictory and bewildering," wrote Washing- 
ton of so big, important, and exciting news as the 
progress of Shays's Rebellion. 2 On the same day 
Washington complained to General Knox that 
he was "bewildered with those vague and contra- 
dictory reports which are presented in the news- 
papers." 3 

But what this pygmy press lacked in information 
it made up in personal abuse. Denunciation of pub- 
lic 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 Frank- 

1 Salem Gazette, Sept. 13, 1791; Hist. Col., Topsfield (Mass.) 
Hist. Soc., iii, 10. 

2 Washington to Humphreys, Dec. 26, 1786; Writings: Ford, xj, 
98-103. 

3 Washington to General Knox, Dec. 26, 1786; ib. t 103-05. 



COMMUNITY ISOLATION 269 

lin, 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 com- 
plaint 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 flit- 
ters marks you out for the odium of the public, as 
an enemy to the liberty of the press" Franklin de- 
clared 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 [ed- 
itors] in a blanket." l 

1 Writings: Smyth, x, 36 et seq. This arraignment of the press by 



270 JOHN MARSHALL 

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." * 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 pub- 
lished. 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 out- 
side world was a fugitive copy of some journal pub- 
lished 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. 2 

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. 

1 Jefferson to Mrs. Adams, Paris, Sept. 25, 1785; Works: Ford, 
iv, 465. 

2 "Country Printer," in Freneau, hi, 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; 



COMMUNITY ISOLATION £71 

Common schools in the present-day understanding 
of the term did not exist. "There was not a gram- 
mar, a geography, or a history of any kind in 
the school," testifies Samuel G. Goodrich 1 (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 

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. 

1 Goodrich, i, 38. 



272 JOHN MARSHALL 

on birch bark"; and a teacher who could com- 
pute interest was considered " great in figures." * 
"The teacher was not infrequently a person with 
barely education enough to satisfy the critical re- 
quirements 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." 2 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 ce- 
lestial — 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. 3 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. 4 There were but thirty students 
at Virginia's historic college in 1795. Weld dined 

1 A letter from Salem Town about 1786-87; in American Journal 
of Education, xiii, 738. 

* Van Santvoord: Memoirs of Eliphalet Nott, 19. 3 Davis, 333. 

4 "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.) 



COMMUNITY ISOLATION 273 

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. 1 

Parts of the country, like the Mohawk Valley in 
New York, were fairly settled and well cultivated. 2 
In the more thickly inhabited parts of New Eng- 
land there were order, thrift, and industry. 3 The 
houses of the most prosperous farmers in Massachu- 
setts, though " frequently but one story and a gar- 
ret," 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. 4 Yet on the road from Boston to 
Providence houses were seen already falling into 
decay; "women and children covered with rags." 5 
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. 6 

In Connecticut the people were unusually prosper- 
ous; and one enthusiastic Frenchman, judging that 
State from the appearance of the country around 
Hartford, exclaimed: "It is really the Paradise of 

1 Weld, i, 168. But President Tyler says that the boys Weld saw 
were grammar-school pupils. 

2 Watson, 269. 3 Chastellux, 319-20. 
4 De Warville, 126-27. 6 lb., 145 and 450. 

6 76., 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 in- 
expressable injury to the Republican character," etc. (Madison to 
Pendleton, Feb. 24, 1787; Writings: Hunt, ii, 319.) 



274 JOHN MARSHALL 

the United States." 1 Weld found that, while the 
"southeast part of . . . Pennsylvania is better cul- 
tivated 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." 2 

In the homes of Quaker farmers near Philadel- 
phia, however, the furniture was of black walnut, 
the beds and linen white and clean, the food varied 
and excellent. 3 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 numer- 
ous 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 

1 De Warvffle, 132. 

* Weld, i, 113. 8 De Warville, 186-87. 



COMMUNITY ISOLATION 275 

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 govern- 
ment," * 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." 2 

Nor was hostility to orderly society confined to 
this class. Knox wrote Washington that, in Mas- 
sachusetts, those who opposed the Constitution 
acted "from deadly principle levelled at the existence 
of all government whatever." 3 

The better class of settlers who took up the 
"farms" abandoned by the first shunners of civiliza- 
tion, while a decided improvement, were, neverthe- 
less, also improvident and dissipated. In a poor and 

1 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.) 

2 Freneau, iii, 74. 

3 Knox to Washington, Feb. 10, 1788; Writings: Ford, xi, footnote 
to 229. And see infra y chap. viii. 



276 JOHN MARSHALL 

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. 1 Not until debts and taxes 
had forced onward this second line of pioneer ad- 
vance did the third appear with better notions of 
industry and order and less hatred of government 
and its obligations. 2 

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. 3 But mean- 
while there was little time for reading, small oppor- 
tunity for information, scanty means of getting it; 

1 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.) 

2 "A relaxation is observable among all orders of society. Drunk- 
enness 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 exces- 
sive 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." (76.) 

3 lb., i, 293-96. See infra, note 4, pp. 281-82. 



COMMUNITY ISOLATION 277 

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. 1 

In Virginia the contrast between the well-to-do 
and the masses of the people was still greater. 2 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 edu- 
cated, some of them highly so, instructed in the 
ways of the world, and distinguished in manners. 3 
Their houses were large; their table service was 
of plate; they kept their studs of racing and car- 
riage horses. 4 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 ; 5 and again dinner would 
be served by naked negroes. 6 

1 Watson, 266. 

2 "You see [in Maryland and Virginia] real misery and apparent 
luxury insulting each other." (De Warville, 159.) 

3 Chastellux, 279, and translator's note. 

4 Anburey, ii, 331-32. 5 De Warville, 242. 

6 "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 em- 
bellishments, some years later. (See translator's note to Chastellux, 
245; and see Schoepf, ii, 47.) 



278 JOHN MARSHALL 

The second class of Virginia people were not so 
well educated, and the observer found them "rude, 
ferocious, and haughty; much attached to gam- 
ing 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." 1 The third class of Virginia people were 
lazy, hard-drinking, and savage; yet kind and gen- 
erous. 2 "Whenever these people come to blows," 
Weld testifies, "they fight just like wild beasts, bit- 
ing, 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. 3 

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 shif tlessness 4 a common character- 
istic; and described the gentry as displaying the 
baronial qualities of haughtiness, vanity, and idle- 
ness. 5 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 

1 Anburey, li, 331-32. * lb., 332-33. 

3 Weld, i, 192. See Weld's description of "gouging." And see 
Fithian's interesting account; Fithian, 242-43. 

4 Schoepf, ii, 89. 6 76., 91-95. 



COMMUNITY ISOLATION 279 

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 char- 
acters 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 

in their religion to 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 circum- 
stances 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 occa- 
sioned in Virginia a transplantation of a particular 
vice foreign to its climate." Jefferson finally con- 



280 JOHN MARSHALL 

eludes: "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." * 

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. 2 The most bizarre contrasts startled the 
observer — mean cabins, broken windows, no bread, 
and yet women clad in silk with plumes in their 
hair. 3 Eight years after our present National Gov^ 
ernment 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, 4 notwith- 
standing 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 Vir- 
ginians then lived were wretched; 5 Jefferson tells us, 

1 Jefferson to Chastellux, Sept. 2, 1785; Thomas Jefferson Corre- 
spondence, Bixby Collection: Ford, 12; and see Jefferson to Donald, 
July 28, 1787; Jefferson's Writings: Washington, ii, 193, where Jeffer- 
son says that the qualities of Virginians are " indolence, extravagance, 
and infidelity to their engagements." 

2 Weld, i, 199. 

3 Schoepf, ii, 34. This strange phenomenon was witnessed every- 
where, 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.) 

4 lb., 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. 

6 lb., 144. 



COMMUNITY ISOLATION 281 

speaking of the better class of dwellings, that "it is 
impossible to devise things more ugly, uncomfort- 
able, 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." l 

In general the population subsisted on worse fare 
than that of the inhabitants of the Valley. 2 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." 3 

Indeed, at this period, heavy drinking appears 
to have been universal and continuous among all 
classes throughout the whole country 4 quite as much 

1 "Notes on Virginia": Jefferson; Works: Ford, iv, 69; and see 
Weld, i, 114, for similar diet in Pennsylvania. 2 lb., 183-84. 

3 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 Vir- 
ginia. He thus describes the houses and people living in the valley 
towards Staunton: "The habitations are in this district more nu- 
merous 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.) 

4 "It took a good deal of New England rum to launch a 75 ton 



282 JOHN MARSHALL 

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 drunken- 
ness," writes La Rochefoucauld in 1797. * And Wash- 
ington eight years earlier denounced "drink which is 
the source of all evil — and the ruin of half the work- 
men in this country." 2 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." 3 

Court-houses built in the center of a county and 
often standing entirely alone, without other build- 
ings near them, nevertheless always had attached 
to them a shanty where liquor was sold. 4 At coun- 
try taverns which, with a few exceptions, were poor 

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 coun- 
try, at which was served "Punch, warm and cold, before dinner; ex- 
cellent 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 Han- 
cock, but found that he had a "marvelous gout which dispenses him 
from all attentions and forbids the access to his house." (lb., 66.) As 
to New England country stores, "you find in the same shop, hats, 
nails, liquors." (lb., 127.) 

1 La Rochefoucauld, iv, 577. 

2 Washington to Green (an employee) March 31, 1789; Writings: 
Ford, xi, 377. 

3 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. 

4 Schoepf, ii, 47. 



COMMUNITY ISOLATION 283 

and sometimes vile, 1 whiskey mixed with water was 
the common drink. 2 About Germantown, Pennsyl- 
vania, workingmen received from employers a pint 
of rum each day as a part of their fare; 3 and in good 
society men drank an astonishing number of "full 
bumpers" after dinner, where, already, they had 
imbibed generously. 4 The incredible quantity of 
liquor, wine, and beer consumed everywhere and by 
all classes is the most striking and conspicuous fea- 
ture of early American life. In addition to the very 
heavy domestic productions of spirits, 5 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. 6 

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 pecu- 
liar diversion of the quality; the second that of the 
baser sort, although men of all conditions of society 
attended and delighted in both. 7 But the horse- 

1 Watson, 252. 2 Chastellux, 224; see also 243. 

* La Rochefoucauld, iv, 119. * lb., 590. 

6 See infra, it, chap. n. 6 De Warville, 262. 

7 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 stand- 
ing amusements, for which they neglect all business." (lb.; 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 Roche- 
foucauld, iii, 75-79. 



284 JOHN MARSHALL 

racing and the cock-fighting served the good pur- 
pose 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, some- 
times with the most serious results. 1 

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, 2 and of these, in most States, only 
property-holders had the ballot. The great ma- 
jority 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 

1 "The session assembles here, besides the neighboring judges, 
lawyers, and parties whose causes are to be tried, numbers of idle peo- 
ple who come less from desire to learn what is going forward than to 
drink together," says La Rochefoucauld; and see his picturesque de- 
scription of his arrival at the close of court day at Goochland Court- 
House. (La Rochefoucauld, iii, 126-29.) 

2 One man to every five men, women, and children, which is a high 
estimate. 



COMMUNITY ISOLATION 285 

those of Kamskatska," wrote Madison to Jefferson 
in 1786. * But everybody did know that government 
meant law and regulation, order and mutual obliga- 
tion, 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 lan- 
guishing 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 Rev- 
olution, 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 Gov- 
ernment was too far away and fearsome, too alien 
and forbidding for them to view it with friendliness 
or understanding. The common man saw little differ- 
ence 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 2 had taken much of any mil- 
itant part in expelling British tyranny; but these 

1 Madison to Jefferson, Aug. 12, 1786; Writings: Hunt, ii, 261. 

2 Randolph in the Virginia Constitutional Convention estimated 
that the colonies could have put four hundred thousand soldiers in the 
field. (Elliott, hi, 76-77.) 



286 JOHN MARSHALL 

"chimney-corner patriots," as Washington sting- 
ingly described them, were the hottest foes of Brit- 
ish 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 be- 
tween 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, ineffi- 
cient, and corrupt monarchy and nobility, and con- 
sidering the state of a people who were without that 
political liberty enjoyed in America. 1 But the vaga- 
ries, 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. 

1 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. 



COMMUNITY ISOLATION 287 

Thus, Marshall and Jefferson, at a time destined 
to be so important in determining the settled opin- 
ions of both, were looking upon opposite sides of 
the shield. It was a curious and fateful circum- 
stance and it was repeated later under reversed 
conditions. 



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 un- 
equal 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." * 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, nev- 
ertheless, had learned of its contents with applause. 

Thomas Paine's "Common Sense," which Wash- 
ington and Franklin truly said did so much for the 
patriot cause, 2 had sown dragon's teeth which the 

1 Writings: Conway, i, 69 et seq. 

2 " Common Sense had a prodigious effect." (Franklin to Le Veil- 
lard, 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 Legis- 
lature Marshall introduced a bill for Paine's relief. (Supra, chap. VI.) 



ANTAGONISM TO GOVERNMENT 289 

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 con- 
tinued to be the voice of the people; 1 and it is far 
within the truth to affirm that Thomas Paine pre- 
pared the ground and sowed the seed for the harvest 
which Thomas Jefferson gathered. 

"Government, like dress, is the badge of lost in- 
nocence; 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." 2 So ran the flaming maxims of the 
great iconoclast; and these found combustible ma- 
terial. 

Indeed, there was, even while the patriots were 
fighting for our independence, a considerable part of 
the people who considered " all government as dis- 
solved, 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." 3 Zealous bearers, 
these, of the torches of anarchy which Paine's burn- 

1 Graydon, 358. 

2 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. 

3 Moore's Diary, ii, 143-44. Although this was a British opinion, 
yet it was entirely accurate. 



290 JOHN MARSHALL 

ing words had lighted. Was it not the favored of the 
earth that government protected? What did the 
poor and needy get from government except oppres- 
sion 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 dema- 
gogue. 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. 1 A lie 
traveled like a snake under the leaves and could not 
be overtaken; 2 bad roads, scattered communities, 
long distances, and resultant isolation leadened and 

1 "They will rise and for lack of argument, say, Mf Speaker, this 
measure will never do, the People Sir, will never hear 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 Circum- 
stances — and of no great Integrity — and these Geniouses vainly 
conceiving they are competent to regulate the affairs of State — make 
some hasty incoherant Resolves, and these end in Sedition, Riot, & 
Rebellion." (Sewell to Thatcher, Dec, 1787; Hist. Mag. (2d Series), 
vi, 257.) 

2 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 estab- 
lishing 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 re- 
futed 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.) 



ANTAGONISM TO GOVERNMENT 291 

delayed the feet of truth. Nothing was too ridicu- 
lous for belief; nothing too absurd to be credited. 

A Baptist preacher in North Carolina was a candi- 
date 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 Co- 
lumbia) 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 em- 
bodied 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 politi- 
cian; but the people believed what he said and he 
was elected. 1 

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 inter- 
marriage, 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 

1 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 schol- 
arly Mason. (See infra, chaps, xi and xn.) 



292 JOHN MARSHALL 

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 re- 
mained adamant and the two parted determined 
enemies. 1 

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 repeti- 
tion 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 cir- 
culated much less credited by the most gossip-loving. 

Things, praiseworthy in themselves, were magni- 
fied into stupendous and impending menaces. Revo- 
lutionary officers formed "The Society of the Cincin- 
nati" in order to keep in touch with one another, 
preserve the memories of their battles and their camp- 
fires, and to support the principles for which they 
had fought. 2 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, de- 
clared that "the day . . . will certainly come, when 
a single fibre of this institution will produce an 

1 Graydon, 392-93. 

8 Memorials of the Society of the Cincinnati, 1790, 3-24. 



ANTAGONISM TO GOVERNMENT 293 

hereditary aristocracy which will change the form of 
our governments [Articles of Confederation] from the 
best to the worst in the world." l 

iEdanus Burke, 2 one of the Justices of the Su- 
preme 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 patri- 
cians, or nobles, and the rabble." 3 In France, Mira- 
beau 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 con- 
quest." "The distinction of Celts and Ostrogoths," 
exclaimed the extravagant Frenchman, "are what 
they claim for their inheritance." 4 

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 

1 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 un- 
popularity in America. (Jefferson to Meusnier, June 22, 1786; ib., 
v, 50-56.) 

2 The same who broke the quorum in the Continental Congress. 
(Supra, chap. IV.) 

3 Burke: Considerations on the Society of the Order of Cincinnati; 
1784. 

4 Mirabeau: Considerations on the Order of Cincinnati; 1786. Mira- 
beau 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. 



% - _ 



294 JOHN MARSHALL 

complete and perpetual "personal discrimination be- 
tween " its members " and the whole remaining body 
of the people who will be styled Plebeians." 1 

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. 

Nor did this popular tendency to credit the most 
extraordinary tale, believe the most impossible and 
outrageous scandal., or accept the most impracti- 
cable and misshapen theory, end only in wholesome 
hatred of rank and distinction. Among large num- 
bers 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 pub- 
lic & private, and a new division of property." 2 
And Jay thought that "a reluctance to taxes, an 

1 As quoted in Hudson : Journalism in the United States y 158. 
1 Madison to James Madison, Nov. 1, 1786; Writings: Hunt, ii, 
278. 



ANTAGONISM TO GOVERNMENT 295 

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 actu- 
ate the mass of those who are uneasy in their cir- 
cumstances." * The greed and covetousness of the 
people is also noted by all travelers. 2 

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. 3 The private debt aggregated 
a large amount. 4 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. 5 
The country had had bitter experience with a ficti- 
tious 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." 6 

Later on, foreigners bought five thousand dollars 

1 Jay to Jefferson, Oct. 27, 1786; Jay: Johnston, iii, 212. 

2 See Weld, i, 114-15, as a fair example of foreign estimate of this 
American characteristic at that period. 

3 See chap, n, vol. n, of this work. 

4 Private debts which Virginia planters alone owed British mer- 
chants 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.) 

6 "It cannot perhaps be affirmed that there is gold & silver en^ in 
the Country to pay the next tax." (Madison to Monroe, June 4, 
1786; Writings: Hunt, ii, 245.) 

6 Jefferson to Meusnier, Jan. 24, 1786; Works: Ford, v, 27. 



296 JOHN MARSHALL 

of this Continental scrip for a single dollar of gold 
or silver. 1 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. 2 For land sold by Jefferson before paper 
currency was issued he "did not receive the money 
till it was not worth Oak leaves." 3 

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 propor- 
tionably advance the price of their commodities." 4 
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. " 5 

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 

1 Jefferson to Meusnier, Jan. 24, 1786: Works: Ford, v, 27. 

2 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." (lb.) 

3 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." 

4 Livingston to Jay, July 30, 1789; Jay: Johnston, iii, 373-74. 

5 Fithian, 91. 






ANTAGONISM TO GOVERNMENT 297 

and bizarre devices; * and finally took a determined 
stand against paper currency. 2 Although Virginia 
had burned her fingers, so great was the scarcity of 
money that there was a formidable agitation to try 
inflation again. 3 Throughout the country there once 
more was a "general rage for paper money." 4 Bad 
as this currency was, it was counterfeited freely. 5 
Such coin as existed was cut and clipped until Wash- 
ington feared that "a man must travel with a pair of 
money scales in his pocket, or run the risk of receiv- 
ing gold of one fourth less by weight than it counts." 6 
If there was not money enough, let the Govern- 
ment 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 an- 
swer in the breasts of the thoughtless, the ignorant, 
and the uneasy. This answer was broader than the 

1 Virginia's paper money experiment was the source of many law- 
suits in which Marshall was counsel. See, for example, Pickett vs. 
Claiborne (Call, iv, 99-106); Taliaferro vs. Minor (Call, i, 456-62). 

2 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.) 

3 "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.) 

4 Madison to Jefferson, Aug. 12, 1786; ib., 259. 

5 "Enclosed are one hundred Dollars of new Emmission Money 
which Cot Steward desires me to have exchanged for Specie. Pray, 
inform him they are all counterfeit." (Gerry to King, April 7, 1785; 
King, i, 87.) 

6 Washington to Grayson, Aug. 22, 1785; Writings: Ford, x, 493-94. 



298 JOHN MARSHALL 

demand for paper money, wider than the protest 
against particular laws and specific acts of adminis- 
tration. 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." * 

Ideas and purposes such as these swayed the six- 
teen thousand men who, in 1787, followed Daniel 
Shays in the popular uprising in Massachusetts 
against taxes, courts, and government itself. 2 "The 
restlessness produced by the uneasy situation of in- 
dividuals, connected with lax notions concerning 
public and private faith, and erroneous 3 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 them- 
selves 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 

1 Knox to Washington, Oct. 28, 1786; Writings: Hunt, ii, footnote 
to p. 407-08. 

2 Minot: History of the Insurrections in Massachusetts in 1786 
(2d ed.), 1810. 

3 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. hi of this work.) 



ANTAGONISM TO GOVERNMENT 299 

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 resent- 
ments 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 coun- 
try was found insufficient protection," records Mar- 
shall, "and the appeals made to reason were at- 
tended with no beneficial effect. The forbearance of 
the government was attributed to timidity rather 
than moderation, and the spirit of insurrection ap- 
peared to be organized into a regular system for 
the suppression of courts." * 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 Vir- 
ginia House of Delegates. 

"It rather appears to me," wrote David Hum- 
phries 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." 2 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. 

1 Marshall, ii, 117. * /&., 118. 



300 JOHN MARSHALL 

"High taxes are the ostensible cause of the com- 
motions, 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 deter- 
mined to make use of the latter, in order to remedy 
the former." * 

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. 2 "The knaves and 
fools of this world are forever in alliance," was the 
conclusion reached in 1786 3 by Jay, who thought 
that the people considered "liberty and licentious- 
ness" as the same thing. 4 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 over- 
borne themselves by the strong and almost never- 
ceasing union of the wicked and the weak." 5 The 
cautious Madison was equally doubtful of the peo- 

1 Knox to Washington, Oct. 28, 1786; Writings: Hunt, ii, footnote 
to 408. 

2 Shays's Rebellion was only a local outburst of a general feeling 
throughout the United States. Marshall says, "those causes of dis- 
content . . . existed in every part of the union." (Marshall, ii, 117.) 

3 Jay to Jefferson, Oct. 27, 1786; Jay: Johnston, iii, 213. 

4 Jay to Reed, Dec. 12, 1786; ib., 222. 
8 Jay to Price, Sept. 27, 1786; ib., 168. 



ANTAGONISM TO GOVERNMENT 301 

pie: "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. 1 

Washington, black with depression, decided and 
bluntly said " that mankind, when left to themselves, 
are unfit for their own government." Lee had sug- 
gested 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." 2 

"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," 3 
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." 4 

1 Mad son to Randolph, Jan. 10, 1788; Writings: Hunt, v, 81. 

« Washington to Lee, Oct. 31, 1786; Writings: Ford, xi, 76-77. 

8 Washington to Madison, Nov. 5, 1786; ib. y 81. 

* Washington to Knox, Dec. 26, 1786; ib., 103-04. And Washing- 



302 JOHN MARSHALL 

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 pro- 
mote private and public dishonesty, cast a deep 
shade over the bright prospect which the revolution 
in America and the establishment of our free govern- 
ments had opened to the votaries of liberty through- 
out 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." * 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. 2 

ton wrote to Lafayette that "There are seeds of discontent in every 
part of the Union." (Writings: Sparks, ix, 263.) 

1 Marshall to James Wilkinson, Jan. 5, 1787; Amer. Hist. Rev., xii, 
347-48. 

2 Jefferson to Mrs. Adams, Feb. 22, 1787; Works: Ford, v, 263. 



ANTAGONISM TO GOVERNMENT 303 

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 shallow- 
ness 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 apos- 
trophe 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." 1 

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 resist- 
ance? 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." 2 

Thus did his contact with a decadent monarchy 
on the one hand and an enchanting philosophy on 

1 Jefferson to Mrs. Adams, Feb. 22, 1787; Works: Ford, v, 263. 
8 Jefferson to Smith, Nov. 13, 1787; ib., 362. 



304 JOHN MARSHALL 

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 pub- 
lic 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 Uni- 
ted 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 master- 
piece of weakness. The so-called Federal Govern- 
ment 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 for- 
eign 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 mak- 
ing 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 obliga- 
tions; and these springs of revenue, when not en- 
tirely dry, yielded so little that the Federal estab- 
lishment was like to die of financial thirst. 1 

1 "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™, 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 



ANTAGONISM TO GOVERNMENT 305 

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, inde- 
pendent, disunited States are in the habit of dis- 
cussing 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 con- 
federacy, they will laugh in your face." * Thus raged 
Washington. "Congress cannot command money" 
even to redeem Americans held in slavery in Al- 
giers, 2 testified the powerless and despondent Secre- 
tary of State. Indeed, Congress amounted to so 
little that the delegates from many States often 
refused to attend. 3 

Though debts were great and financial confusion 

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.) 

1 Washington to Jay, Aug. 1, 1786; Writings: Ford, xi, 54-55. 

2 Jay (Secretary of State under the Confederation) to Jefferson, 
Dec. 14, 1786; Jay: Johnston, iii, 223. 

3 "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.) 



306 JOHN MARSHALL 

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 . . . not- 
withstanding 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." * 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. 2 Madison excused his support of the 
bill authorizing tobacco to be taken for specie in pay- 
ment of taxes, upon the ground that it "could not be 
rejected without . . . exciting some worse project of 

1 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 through- 
out the country was never greater. The productions of the earth 
abound," wrote Jay to B. Vaughan, Sept. 2, 1784. (Jay: Johnston, 
iii, 132.) 

2 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.) 



ANTAGONISM TO GOVERNMENT 307 

a popular cast"; * and "by a fear that some greater- 
evil under the name of relief to the people would 
be substituted." 2 Debt "made it extremely incon- 
venient to most people to submit to a regular gov- 
ernment," was the conclusion Rut ledge finally 
reached. 3 

But, whatever the cause, the States did not act. 
Washington thought it a combination of the schem- 
ing 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 de- 
gree taken its departure from our land and the want 
of a disposition to do justice is the source of the na- 
tional embarrassments; for, whatever guise or color- 
ings are given to them, this I apprehend is the origin 
of the evils we now feel." 4 Such was Washington's 
cry of despair four years after he had wrested Ameri- 
can 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 

1 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." (lb.) 

* Madison to Washington, Dec. 24, 1786; ib., 301. "My acquies- 
cence 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.) 

3 Rutledge to Jay, May 2, 1789; Jay: Johnston, iii, 368. 

4 Washington to Jay, May 18, 1786; Writings: Ford, xi, 31-32. 



308 JOHN MARSHALL 

themselves. Jay put this opinion in a nutshell when 
he said, "The mass of men are neither wise nor 
good." * 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 dis- 
order, 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 gov- 
ernment 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. 2 

The shield of all this turmoil and baseness was 
the State Governments. "Their unreasonable jeal- 
ousy 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. 3 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." 4 

It was the States which always were thwarting 
every plan for the general welfare; the States which 

1 Jay to Washington, June 27, 1786; Jay: Johnston, iii, 204. 
1 76., 205. 

3 Washington to Harrison, Jan. 18, 1784; Writings: Ford, x, 345. 

4 lb. 



ANTAGONISM TO GOVERNMENT 309 

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 provin- 
cial demagogues their advantage and opportunity. 
The State Governments were the "people's" Gov- 
ernments; 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. 1 
"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" 2 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 Govern- 
ments; or to uphold the National honor by paying 
debts made to win American independence, that 
wrought that bloodless revolution 3 which produced 
the Constitution. Nor was it the proud and far- 

1 See Madison's masterful summary of the wickedness, weakness, 
and folly of the State Governments in Writings: Hunt, ii, 361-69. 
* Washington to Jay, March 10, 1787; Writings: Ford, xi, 125. 
8 See supra, chap. vx. 



310 JOHN MARSHALL 

seeing plans of a few great minds whose heart's de- 
sire 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 de- 
clared, 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." * The States 
passed tariff laws against one another as well as 
against foreign nations; and, indeed, as far as com- 
merce was concerned, each State treated the others 
as foreign nations. 2 There were retaliations, dis- 

1 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 per- 
nicious substitution of paper money, for indulgencies to debtors, for 
postponements of taxes." (lb.) 

2 Virginia carefully defined her revenue boundaries as against Penn- 
sylvania 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 informa- 
tion 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." (76.) 

Even Pennsylvania, already the principal workshop of the country, 



ANTAGONISM TO GOVERNMENT Sll 

criminations, and every manner of trade restrictions 
and impediments which local ingenuity and selfish- 
ness 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. 1 States having no seaports 
were in a particularly hard case. Madison pictur- 
esquely describes their unhappy plight : "New Jersey 
placed between Phil? & N. York, was likened to a 
cask tapped at both ends; And N. Carolina, be- 
tween Virg* & S. Carolina to a patient bleeding at 
both Arms." 2 Merchants and commercial bodies 
were at their wits' end to carry on business and pe- 
titioned for a general power over commerce. 3 

The commercial view, as stated by Madison, was 

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.) 

1 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 vari- 
able control over railways that are essentially National. 

2 Writings: Hunt, ii, 395. 3 Marshall (1st ed.), v, 76-79. 



312 JOHN MARSHALL 

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 natural- 
ization, &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 prerog- 
ative, 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 in- 
vade 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." * 

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 Consti- 
tution and practically all to whom debts were due 

1 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. H, 
chaps, ii, in, and iv.) 



ANTAGONISM TO GOVERNMENT 313 

were for the new Government. "I have little pros- 
pect 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." * 

London merchants were very anxious for a new 
order of things. "I hope ere long your Federal Gov- 
ernment 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. 2 

A few weeks after Virginia ratified the Constitu- 
tion, 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 Fed- 
eral 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." 3 

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 

1 Minton Collins at Richmond to Stephen Collins at Philadelphia, 
May 8, 1788; MS., Lib. Cong. 

2 Sam Smith in London to Stephen Collins in Philadelphia, July 
21, 1788; t&. 

1 Minton Collins to Stephen Collins, Aug. 9, 1788; ib. 



314 JOHN MARSHALL 

for a political career, which might have given to his 
thinking and conclusions a "more popular cast," to 
use Madison's contemptuous phrase. Thus Mar- 
shall'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 con- 
structive mind, his conservative temperament, his 
stern sense of honor, his abhorrence of disorder and 
loose government, his army experience, his legisla- 
tive 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 un- 
happy 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. 1 He found that "the nonpaiment of our 

1 " 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, 



ANTAGONISM TO GOVERNMENT 315 

debts and the want of energy in our government . . . 
discourage a connection with us"; * 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. 2 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 Jeffer- 
son while the Constitutional Convention was quar- 
reling at Philadelphia. 3 

But he did not think badly of the weakness of the 
Articles of Confederation which so aroused the dis- 
gust, 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 com- 
parison the best existing or that ever did exist"; 4 
and he declared to one of his French friends that 
"the confederation is a wonderfully perfect instru- 
ment." 5 Jefferson found but three serious defects 
in the Articles of Confederation : no general rule for 
admitting States; the apportionment of the State's 

considered it as desperate; and that our commercial regulations, in 
general, were disgusting to them." (Jefferson's Report; Works: Ford, 
iv, 487.) 

1 Jefferson to Stuart, Jan. 25, 1786; ib., v, 74. 

2 Jefferson to Madison, Dec. 16, 1786; ib„ v, 230. 

3 Jefferson to Carrington, Paris, Aug. 4, 1787; ib., 318; also 332; 
and Jefferson to Wythe, Sept. 16, 1787; ib., 340. 

4 Jefferson to Carrington, Paris, Aug. 4, 1787; ib., 318. 
6 Jefferson to Meusnier, Jan. 24, 1786; ib., 8. 



316 JOHN MARSHALL 

quota of money upon a land instead of a population 
basis; and the imperfect power over treaties, import 
duties, and commerce. 1 

He frankly said: "I am not a friend to a very 
energetic government"; and he thought that "our 
governments will remain virtuous for many cen- 
turies" — but added with seer-like vision: "as long 
as . . . there shall be vacant lands in America." 2 
Jefferson wished the United States "to practice 
neither commerce nor navigation, but to stand with 
respect to Europe precisely on the footing of China." 3 
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 dis- 
position to luxury, and the loss of those manners 
which alone can preserve republican government." 4 

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 reflec- 
tion and second thought. Thus we have measured, 

1 Jefferson to Meusnier, Jan. 24, 1786; Works: Ford, v, 8. 

2 Jefferson to Madison, Dec. 20, 1787; ib., 373-74. Jefferson con- 
cluded, prophetically, that when the people "get piled upon one 
another, in large cities, as in Europe, they will become as corrupt as 
Europe." (Ib.) 

3 Jefferson to Hogendorp, Oct. 13, 1785; ib., iv, 469. 

4 Jefferson to Stuart, Jan. 25, 1786; ib. t v, 74. 



ANTAGONISM TO GOVERNMENT 317 

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 Govern- 
ment; and, here and there, a prophetic and construc- 
tive mind who sought to build a Nation. John Mar- 
shall 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 Vir- 
ginians, about to assemble in State Convention, will 
determine the fate of that unauthorized and revolu- 
tionary plan for a National Government, 1 the Na- 
tional 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. 2 There is widespread, positive, and growing 
resentment at the proposed new form of government; 

1 See infra, chap. ix. 

* For a careful study of this important but neglected subject see 
Professor Edward Payson Smith's paper in Jameson, 46-115. 



S18 JOHN MARSHALL 

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 Wash- 
ington asserts, there is, indeed, " combustible ma- 
terial" everywhere. 

Thus it is that the room where Virginia's Con- 
vention is about to meet in June, 1788, will become 
the "bloody angle" in the first great battle for Na- 
tionalism. And Marshall will be there, a combatant 
as he had been at Great Bridge and Brandywine. 
Not for John Marshall the pallid role of the trimmer, 
but the red-blooded part of the man of conviction. 



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. 1 Some of these had come hun- 
dreds of miles and arrived in the garb of the frontier, 
pistol and hanger at belt. 2 Patrick Henry, prema- 
turely old at fifty-two, came in a one-horse, un- 
covered gig; Pendleton, aged, infirm, and a cripple, 
arrived in a phaeton. 3 

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 Conven- 
tion from reaching their destination in time and per- 
haps have decided the impending struggle 4 before it 

1 Grigsby, i, 25. 

2 Travelers from the District of Kentucky or from the back settle- 
ments of Virginia always journeyed fully armed, in readiness to defend 
themselves from attack by Indians or others in their journey through 
the wilderness. 

3 Grigsby, i, 27-28. * 76., 25. 



320 JOHN MARSHALL 

began. The year's great social and sporting event 
added to the throng and colored the dark back- 
ground of political anxiety and apprehension with 
a faint tinge of gayety. 1 

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. 2 Some of the 
most inquiring men of this historic body had not read 
a serious or convincing argument for it or against it. 3 
"The greater part of the members of the [Virginia] 
convention will go to the meeting without informa- 
tion on the subject," wrote Nicholas to Madison 
immediately after the election of delegates. 4 

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, consoli- 
dated National Government, superior to and domi- 
nant over the State Governments ; a National Sove- 
reignty overawing State Sovereignties, dangerous to 

1 The Jockey Club was holding its annual races at Richmond when 
the Constitutional Convention of 1788 convened. (Christian, 31.) 

2 Grigsby, i, 31. 

8 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 Con- 
vention, {lb., footnote to 31.) 

4 George Nicholas to Madison, April 5, 1788; Writings: Hunt, v, 
footnote to p. 115. 



THE STRUGGLE FOR RATIFICATION 321 

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 "lib- 
erty." 1 

So a decided majority of the people of Virginia 
were against the proposed fundamental law; 2 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 sys- 
tem, was it even sent from heaven, which tends to 
confirm the union of the States." 3 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." 4 At first the 
friends of the Constitution deceived themselves into 
thinking that the work of the Philadelphia Conven- 
tion met with approval in Virginia; but they soon 
found that "the tide next took a sudden and strong 
turn in the opposite direction." 5 Henry wrote to 

1 "The most common and ostensible objection was that it [the Con- 
stitution] would endanger state rights and personal liberty — that 
it was too strong." (Humphrey Marshall, i, 285.) 

2 Tyler, i, 142. Grigsby estimates that three fourths of the people 
of Virginia were opposed to the Constitution. (Grigsby, i, footnote 
to 160.) 

3 Lee to Madison, Dec. 1787; Writings: Hunt, v, footnote to p. 88, 

4 Madison's father to Madison, Jan. 30, 1788; Writings: Hunt, 
v, footnote to p. 105. 

6 Madison to Jefferson, Feb. 19, 1788; ib., 103. 



322 JOHN MARSHALL 

Lamb that " Four-fifths of our inhabitants are op- 
posed to the new scheme of government"; and he 
added that south of the James River " I am confident 
nine-tenths are opposed to it." * 

That keen and ever-watchful merchant, Minton 
Collins, thus reported to the head of his com- 
mercial 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." 2 

And now the hostile forces are to meet in final and 
decisive conflict. Now, at last, the new Constitu- 
tion is to be really debated; and debated openly be- 
fore 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 

1 Henry to Lamb, June 9, 1788; Henry, ii, 342. 

2 Minton Collins to Stephen Collins, March 16, 1788; Collins 
MSS., Lib. Cong. 



THE STRUGGLE FOR RATIFICATION 323 

later in New York was to be most brilliant), the 
attack upon it in the Virginia Convention was no- 
where 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 Fed- 
eral Convention itself, in weight of argument and 
attractiveness of presentation, as well as in the abil- 
ity 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 Con- 
stitution itself was reported to Congress. The Jour- 
nals 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 au- 
thority whatever; and the document, which the war- 
ring factions finally evolved from their quarrels and 
dissensions, was revolutionary. 1 This capital fact 

1 Even Hamilton admitted this. "The framers of it [the Con- 
stitution] 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; Hamil- 
ton'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 Constitu- 
tion ... an heroic but lawless act." (Van Buren, 49-50.) 

Professor Burgess does not overstate the case when he declares : 



324 JOHN MARSHALL 

requires iteration, for it is essential to an under- 
standing of the desperate struggle to secure the rati- 
fication of that then unpopular instrument. 

"Not one legislature in the United States had the 
most distant idea when they first appointed mem- 
bers 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." * The 
more reliable Melancton Smith of New York 
testifies that "previous to the meeting of the Con- 
vention 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 legis- 
latures 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." 2 

"Had the idea of a total change [from the Con- 
federation] 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 

"Had Julius or Napoleon committed these acts [of the Federal Con- 
vention in framing and submitting the Constitution], they would have 
been pronounced coups d'Stat." (Burgess, i, 105.) 

Also see Beard: Econ. I. C, 217-18. 

i Ford: P. 07i C, 14. 2 76., 100-01. 



THE STRUGGLE FOR RATIFICATION 325 

appointed principally those men who are esteemed 
aristocratical. . . . Other States . . . chose men prin- 
cipally connected with commerce and the judicial 
department." Even so, says Lee, "the non-attend- 
ance of eight or nine men" made the Constitution 
possible. "We must recollect, how disproportion- 
ately the democratic and aristocratic parts of the 
community were represented" in this body. 1 

This "child of fortune," 2 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; 3 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. 

1 Ford: P. on C, 284-85. And see Jameson, 40-49. 

2 Washington to Lafayette, Sept. 18, 1788; Writings: Sparks, 
ix, 265. 

3 Connecticut, New Jersey, and Delaware had practically no 
ports and, under the Confederation, were at the mercy of Massachu- 
setts, New York, and Pennsylvania in all matters of trade. The Con- 
stitution, of course, remedied this serious defect. Also, these smaller 
States had forced the compromise by which they, with their com- 
paratively small populations, were to have an equal voice in the 
Senate with New York, Pennsylvania, and Virginia, with their com- 
paratively great populations. And therefore they would have practi- 
cally equal weight in the law- and treaty-making power of the Gov- 
ernment. This was the most formidable of the many rocks on which 
the Federal Convention all but broke up. 



326 JOHN MARSHALL 

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 pos- 
sible speed. Not a week had passed after the Federal 
Convention had laid the proposed Constitution be- 
fore Congress when a resolution was introduced in 
the Legislature of Pennsylvania for the election, 
within five weeks, 1 of delegates to a State Conven- 
tion 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 quo- 
rum, a band of Constitutionalists "broke into their 
lodgings, seized them, dragged them though the 
streets to the State Llouse 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 Penn- 
sylvania State Convention to ratify the National 
Constitution. 2 And this action was taken before the 
Legislature had even received from Congress a copy 
of that document. 

1 One proposition was to call the State Convention "within ten 
days." (See "Address of the Minority of the Pennsylvania Conven- 
tion," in McMaster and Stone, 458.) 

2 lb., 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.) 



THE STRUGGLE FOR RATIFICATION 327 

The enemies in Pennsylvania of the proposed Na- 
tional Government were very bitter. They said that 
the Legislature had been under the yoke of Phila- 
delphia — a charge which, indeed, appears to be 
true. Loud were the protests of the minority against 
the feverish haste. When the members of the Penn- 
sylvania Convention, thus called, had been chosen 
and had finished their w T ork, the Anti-Constitutional- 
ists 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 Penn- 
sylvanians were entitled to vote, only thirteen thou- 
sand 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 Penn- 
sylvania by men who represented less than one tenth 
of the voting population of the State. 1 

1 McMaster and Stone, 459-60. This charge was wholly accurate. 
Both sides exerted themselves to carry the "election." The Anti-Con- 
stitutionalists declared that they stood for "the principles of the Revo- 
lution"; yet, asserts Gray don, 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 "pro- 
thonotaryships, attorney generalships, chief justiceships, and what 
not," and the hostile attorneys "were tempted and did eat." Describ- 
ing 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 



328 JOHN MARSHALL 

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 Pennsyl- 
vanians 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. 1 

The enemies of the proposed plan for a National 
Government took the ground that it was being rushed 
through by the "aristocrats"; and the "Independ- 
ent 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, 

"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 in- 
terests," 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 superflu- 
ity 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. 

1 McMaster and Stone, 503-04. 



THE STRUGGLE FOR RATIFICATION 329 

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 con- 
firm this most noble, most excellent, and truly di- 
vine constitution." x 

James TVilson, 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 " 2 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." 3 

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." 4 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. 5 Hardly a day passed 
that the minority did not protest against the forcing 
tactics of the majority. 6 While much ability was dis- 
played on both sides, yet the debate lacked dignity, 
courtesy, judgment, and even information. So 
scholarly a man as Wilson said that "Virginia has 

1 McMaster and Stone, 173-74. 

2 Independent Gazetteer; ib., 183-84. s lb., 184-85. 

4 Pennsylvania Debates, in McMaster and Stone, 231. Elliott 
prints only a small part of these debates. 

5 76., 283-85. 6 76., 219. 



330 JOHN MARSHALL 

no bill of rights"; * and Chief Justice McKean, 
supported by Wilson, actually declared that none 
but English-speaking peoples ever had known trial 
by jury. 2 

"Lack of veracity," "indecent," "trifling," "con- 
tempt 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 mem- 
bers almost came to blows. 3 The galleries, filled with 
city people, were hot for the Constitution and heart- 
ened 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 "intimi- 
dated," he dramatically exclaimed, "were the gal- 
leries filled with bayonets." 4 The sarcastic McKean 
observed in reply that Smilie seemed "mighty 
angry, merely because somebody was pleased." 5 

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." 6 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 

1 McMaster and Stone, 253. 

2 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." {lb., 352-64.) 

3 lb., 361-63. 4 lb., 365. 6 lb. 
6 lb., 419. 



THE STRUGGLE FOR RATIFICATION 331 

advocate of the Constitution, that its enemies' argu- 
ments amounted to; they made nothing more than a 
sound "like the working of small beer." 1 

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 Con- 
stitution," wrote a citizen signing himself "Federal- 
ist," "it would be the indecent, supercilious carriage 
of its advocates towards its opponents." 2 

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 

1 McMaster and Stone, 365. 

2 lb., 453. The conduct of the Pennsylvania supporters of the Con- 
stitution 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 there- 
fore concluded that I must love and venerate all the works of their 
hands; — .... The honest and uninformed freemen of America enter- 
tain 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 Penn- 
sylvania Legislature [and Convention] I found myself Disposed to 
lend an ear to the arguments of the opposition — not with an expec- 
tation 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.) 



332 JOHN MARSHALL 

them irritating, inflammatory, and absurd. A well- 
written petition of citizens was sent to the Conven- 
tion 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 situa- 
tion, 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 Pennsyl- 
vania. 1 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 ad- 
journ that the sense of the people might be taken. 2 

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. 3 Only the speeches of James Wilson and 
Chief Justice McKean, both ardent advocates of the 
Constitution, were allowed to be published. 4 

1 McMaster and Stone, 432-35. 

2 Ib. y 424. 8 lb., 14-15. • lb. 



THE STRUGGLE FOR RATIFICATION 333 

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 minor- 
ity 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 ad- 
dress to their constituents. 1 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 Consti- 
tution 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 peo- 
ple'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 wel- 
fare clause would justify anything which "the will 
and pleasure of congress" dictated; that National 
body, "with complete and unlimited power over 

1 "Address of the Minority"; McMaster and Stone, 454-83. 



334 JOHN MARSHALL 

the purse and the sword" could * by taxation "com- 
mand 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 5 '" 
could not get justice. 2 

Two coordinate "sovereignties," State and Na- 
tional, "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" 3 
— 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 Con- 
stitution fed and grew upon its own extravagance. 
The friends of the "New Plan" tried to hold a meet- 
ing 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 cele- 
brate its victory. Blows were struck and violence 

1 "Address of the Minority "; McMaster and Stone, 466. 

2 /&., 469-70. 3 76., 480. 



THE STRUGGLE FOR RATIFICATION 335 

done. 1 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." 2 His ammuni- 
tion was a mixture of argument, statement, charge, 
and abuse, wrapped up in cartridge paper of blister- 
ing rhetoric. The Constitution was, wrote "Cen- 
tinel," a "spurious brat"; "the evil genius of dark- 
ness presided at its birth" and "it came forth under 
the veil of mystery." 3 

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. 4 As to the citizens of Philadel- 
phia, 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 "colos- 
sus" (Robert Morris) who held the city in "thral- 
dom." & 

"Mankind in the darkest ages, have never been so 
insulted," cried "Centinel," as the men of Pennsyl- 
vania had been by this "flagrant . . . audacious . . . 

1 See various contemporary accounts of this riot reprinted in 
McMaster and Stone, 486-94. 

2 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 Philadel- 
phia. (See ib., 6-7, and footnote.) 

8 "Letters of Centinel," no. 4, ib., 606. 

4 lb., 620. 6 lb., 625. 



336 JOHN MARSHALL 

conspiracy [the Constitution] against the liberties of 
a free people." 1 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"; 2 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 com- 
mon concert is everywhere evident; they move in 
unison." 3 

The Constitutionalists were not content with their 
vile work in thrusting upon Pennsylvania "the em- 
pire of delusion," charged "Centinel," 4 but their 
agents were off for Virginia to do the like there. 5 The 
whole world knew, said he, that the Constitution- 
alists had rushed the Constitution through in Penn- 
sylvania; 6 and that the "immaculate convention 
[that framed the Constitution] . . . contained a num- 
ber of the principal public defaulters," 7 chief of 
whom was Robert Morris, who, though a bank- 
rupt in the beginning of the Revolution, had, by 
"peculation and embezzlement of the public prop- 
erty," accumulated "the immense wealth he has 
dazzled the world with since." 8 

If only the address of Pennsylvania's heroic mi- 
nority, "Centinel" lamented, had reached Boston in 
time, it would "have enabled patriotism to triumph" 
there; but, of course, the "high born" Constitution- 
alist managers of post-offices kept it back. 9 Was not 

1 McMaster and Stone, 624. 

2 76., 630, 637, 639, 642, 653, 655. 

8 76., 629. 4 76., 641. 6 76., 631; and see infra, chap. Jtt. 

o 76., 639. 7 76., 658. 8 76., 661. 9 76., 667. 



THE STRUGGLE FOR RATIFICATION 337 

the scandal so foul, asked "Centinel," that, on the 
petition of Philadelphia printers, Pennsylvania's 
Legislature appealed to Congress against the sup- 
pression of the mails? * 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. 2 

The grape and canister which its enemies poured 
upon the Constitution and its friends in Pennsyl- 
vania 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." Ac- 
cording to the Constitutionalists, their opponents 
were "incendiaries" with "infamous designs." 3 
"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 Constitutional- 
ist of the conduct of the opposition. 4 

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 let- 
ters of business men were effective in consolidating 
the commercial interests. Also they illuminate the 
situation. 

1 McMaster and Stone, 667. 2 lb., 668. 

3 "A Real Patriot," in Independent Gazetteer, reprinted in Mc- 
Master and Stone, 524. 

4 "Gomes," in ib., 527. 



338 JOHN MARSHALL 

"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 cor- 
respondent, "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." * 

And "firebrands," indeed, the Anti-Constitution- 
alists prove themselves in every possible way. 

Madison was alarmed. He writes to Jefferson that 
the "minority ... of Pennsylvania has been ex- 
tremely intemperate and continues to use very bold 
and menacing language." 2 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 Jef- 
ferson'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 

1 H. Chapman to Stephen Collins, June 20, 1788; MS., Lib. Cong, 
Oswald, like Thomas Paine, was an Englishman. 

2 Madison to Jefferson, Feb. 19, 1788; Writings: Hunt, v, 102. 



THE STRUGGLE FOR RATIFICATION 339 

property and of influence," l were quite as strong 
for the Constitution as the same class in Pennsyl- 
vania; but, impressed by the revolt against the 
tactics of hurry and force which the latter had em- 
ployed, the Constitutionalists of the Bay State took 
an opposite course. Craft, not arrogance, was their 
policy. They were "wise as serpents," but ap- 
peared to be "as harmless as doves." Unlike the 
methods of the Pennsylvania Constitutionalists, 
they were moderate, patient, conciliatory, and skill- 
ful. They put up Hancock for President of the Con- 
vention, in order, as they said, "that we might have 
advantage of [his] . . . name — whether capable of 
attending or not." 2 

The Massachusetts adversaries of the Constitu- 
tion were without a leader. Among them "there was 
not a single character capable of uniting their wills 
or directing their measures." 3 Their inferiority 
greatly impressed Madison, who wrote to Pendleton 
that "there was scarce a man of respectability" 
among them. 4 They were not able even to state their 
own case. 

1 Madison to Jefferson, Feb. 19, 1788; Writings: Hunt, v, 101. 

2 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 candi- 
date for presiding officer; the preferment flattered Hancock's abnormal 
vanity and insured the Constitutionalists against his active opposi- 
tion; 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 Jeffer- 
son, Oct. 17, 1788; Writings: Hunt, v, 270.) 

3 Madison to Jefferson, Feb. 19, 1788; Writings: Hunt, v, 101. 

4 Madison to Pendleton, Feb. 21, 1788; ib., 108. 



340 JOHN MARSHALL 

"The friends of the Constitution, who in addition 
to their own weight . . . represent a very large pro- 
portion of the good sense and property of this State, 
have the task not only of answering, but also of stat- 
ing and bringing forward the objections of their op- 
ponents," wrote King to Madison. 1 The opponents 
admitted this themselves. Of course, said they, 
lawyers, judges, clergymen, merchants, and edu- 
cated men, all of whom were in favor of the Con- 
stitution, could make black look white; but "if we 
had men of this description on our side" we could 
run these foxes to earth. 2 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." 3 

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 del- 
egates at all; forty-six towns finally refused to do so 
and were unrepresented in the Convention. 4 "Bidde- 

1 King to Madison, Jan. 27, 1788; King, i, 316. 

2 lb., 317. 3 Elliott, ii, 40. 

4 Harding, 48. These towns were bitterly opposed to the Con- 
stitution. 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, 



THE STRUGGLE FOR RATIFICATION 341 

ford 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!" 1 King Love joy was chosen for Vassal- 
borough; 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." 2 

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"; 3 and in another 
county "the Majority of the Common people" were 
opposed, 4 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 enter- 
tain 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." 5 

Judge Sewall reported from York that the dele- 

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 Mas- 
sachusetts towns to send representatives to the State Convention 
changed the destiny of the Republic. 

1 Hill to Thatcher, Dec. 12, 1787; Hist. Mag. (2d Series), vi, 259. 

* Lee to Thatcher, Jan. 23, 1788; ib., 266-67. 

3 lb., 267. 4 lb. 

6 Bangs to Thatcher, Jan. 1, 1788; Hist Mag. (2d Series), vi, 260. 



342 JOHN MARSHALL 

gates there had been chosen "to Oppose the Busi- 
ness. . . . 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 pro- 
cured himself Elected, and I presume will go up 
charged like a Baloon." 1 Nathaniel Barrell of York, 
a successful candidate for the Massachusetts Con- 
vention, "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." 2 

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 Govern- 
ment impracticable among men with such high 
notions of liberty as we americans." 3 

The "Address of the Minority" of Pennsylvania's 
Convention had reached a few men in Massachu- 
setts, 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 — 

1 Sewall to Thatcher, Jan. 5, 1788; Hist. Mag. (2d Series), vi, 260-61. 

2 Savage to Thatcher, Jan. 11, 1788; ib., 264. 
8 Barrell to Thatcher, Jan. 15, 1788; ib. t 265. 



THE STRUGGLE FOR RATIFICATION 343 

its lightenings were irresistible" to him. He de- 
plored the "darkness, duplicity and studied ambi- 
guity . . . 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 consoli- 
dated into one Government — you might as well 
attempt to rule Hell by Prayer." x 

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." 2 

The spirit of Shays's Rebellion inspired the op- 
ponents of the Constitution in Massachusetts. 
"Many of the [Shays's] insurgents are in the Con- 
vention," 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 sup- 
pose that those men, who were so lately intoxicated 
with large draughts of liberty, and who were thirst- 
ing for more would . . . submit to a Constitution 
which would further take up the reins of Govern- 
ment, which, in their opinion, were too straight be- 
fore." 3 

Out of three hundred and fifty-five members of 

1 Wait to Thatcher, Jan. 8, 1788; Hist. Mag. (2d Series), vi, 261. 
Wait was an unusually intelligent and forceful editor of a New Eng- 
land newspaper, the Cumberland Gazette. (lb., 258.) 

2 Gore to Thatcher, Dec. 30, 1787; ib., 260. 

3 Lincoln to Washington, Feb. 3, 1788; Cor. Rev.'. Sparks, iv, 206. 



344 JOHN MARSHALL 

the Massachusetts Convention, one hundred and 
sixty-eight held out against the Constitution to the 
very last, uninfluenced by the careful, able, and con- 
vincing arguments of its friends, unmoved by their 
persuasion, unbought by their promises and deals. 1 
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." 2 At no time until 
they won over Hancock, who presided over the Mas- 
sachusetts Convention, were the Constitutionalists 
sure that a majority was not against the new plan. 

The struggle of these rude and unlearned Massa- 
chusetts men against the cultured, disciplined, pow- 
erful, 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 Wil- 
liam 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." 3 

Amos Singletary "wished they [the Constitutional- 
ists] would not play round the subject with their fine 
stories like a fox round a trap, but come to it." 4 
"These lawyers," said he, "and men of learning and 
moneyed men, that talk so finely, and gloss over 

1 See infra. 2 King to Madison, Jan. 27, 1788; King, i, 317. 

3 Elliott, ii, 105-06. 4 76., 101. 



THE STRUGGLE FOR RATIFICATION 345 

matters so smoothly, to make us poor illiterate peo- 
ple swallow down the pill, expect to get into Con- 
gress 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." 1 
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.'" 2 

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." 3 "Necessity compelled them 
to hurry," 4 declared Widgery of the friends of the 
Constitution. "Don't let us go too fast. . . . Why 
all this racket?" asked the redoubtable Thompson. 5 
Dr. John Taylor was sure that Senators "once 
chosen . . . are chosen forever." 6 

Time and again the idea cropped out of a National 
Government as a kind of foreign rule. "I beg the in- 
dulgence 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 

1 Elliott, ii, 102. 2 76., 28. « 76., 96. 

4 76., 94. * 76., 80. • 76., 48. 



346 JOHN MARSHALL 

brightest of jewels tarnished — a jewel worth ten 
thousand worlds; and shall we part with it so soon? 
O no." * And Mr. Nason was sure that the people 
would part with this brightest of jewels if the Con- 
stitution 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." 2 

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.'" 3 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." 4 Because there was no re- 
ligious 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 Amer- 
ica"; 5 and Singletary pointed out that under the 
Constitution a "Papist, or an Infidel, was as eligible 
as ... a Christian." 6 

1 Elliot, ii, 133. 2 lb., 136-37. 8 lb., 16. 

4 lb., 111. 5 lb., 148. 6 lb., 44. 



THE STRUGGLE FOR RATIFICATION 347 

Thus the proceedings dragged along. The over- 
whelming arguments of the advocates of the Con- 
stitution were unanswered and, apparently, not even 
understood by its stubborn foes. One Constitu- 
tionalist, 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 Con- 
vention. 1 But all to no purpose. Indeed, the plead- 
ings 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 prop- 
erty or education has a more powerful effect upon 
the minds of our opponents than any specific objec- 
tions against the Constitution." 2 

Finally, in their desperation, the Constitutionalist 
managers won Hancock, 3 whose courting of the in- 
surgents in Shays's Rebellion had elected him Gov- 

1 Elliott, ii, 102-04. Mr. Thatcher made the best summary of the 
unhappy state of the country under the Confederation. {lb., 141-48.) 

2 King to Madison, Jan. 20, 1788; King, i, 314. 

8 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.) 



348 JOHN MARSHALL 

ernor. 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 sup- 
port and by telling him that he would be made Presi- 
dent if Washington was not, 1 the Constitutionalist 
leaders induced Hancock to offer certain amend- 
ments which the Massachusetts Convention should 
recommend to Congress along with its ratification 
of the Constitution. Hancock offered these pro- 
posals as his own, although they were drawn by 
the learned and scholarly Parsons. 2 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. 3 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." 4 The deal by which the Constitu- 
tionalists won Hancock was suspected, it appears, for 
Dr. Charles Jarvis denied that "these amendments 
have been artfully introduced to lead to a decision 

1 "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 Vir- 
ginia does not unite, which is problematical, he is considered as the only 
fair candidate for President" (King to Knox, Feb. 1, 1 7 88; King, i, 
319. The italics are those of King.) 

2 lb., ii, 525. 3 Elliott, ii, 178-81. 
4 lb., 140. 



THE STRUGGLE FOR RATIFICATION 349 

which would not otherwise be had." * Madison in 
New York, watching the struggle with nervous solic- 
itude, thought that the amendments influenced very 
few members of the Massachusetts opposition be- 
cause of "their objections being levelled against the 
very essence of the proposed Government." 2 Cer- 
tainly, those who changed their votes for ratification 
had hard work to explain their conversion. 

Nathaniel Barrell, who had pledged his constit- 
uents that he would part with his arm rather than 
vote for the "Slavery of my children," had aban- 
doned 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 hero- 
ism, 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 declama- 
tion"; 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 Constitu- 
tion 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 Han- 
cock. 3 

1 Elliott, ii, 153. 

3 Madison to Randolph, April 10, 1788; Writings: Hunt, v, 117. 

3 Elliott, ii, 159-61. 



350 JOHN MARSHALL 

Just as the bargain with Hancock secured the 
necessary votes for the Constitution in the Massa- 
chusetts 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." * 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 Ex- 
pense of the Trades men in Boston we Disolved"; 2 
but not before the mollified Widgery announced that 
the Constitution "had been carried by a majority 
of wise and understanding men. . . . After express- 
ing 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. 3 

"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 

1 Widgery to Thatcher, Feb. 8, 1788; Hist. Mag. (2d Series), vi, 270. 
* lb. 3 Elliott, ii, 218. 



THE STRUGGLE FOR RATIFICATION 351 

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 . . . Trades- 
men of all sorts, . . . the Bakers [with] their Bread 
peal . . . the Federal Ship ful Riged . . . the Mer- 
chants ... a nother Slead, Hailed 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." 1 

Thus did the Massachusetts Constitutionalists 
take very human and effective measures to prevent 
such revolt against the Constitution, after its ratifi- 
cation, 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 

1 Widgery to Thatcher, Feb. 8, 1788; Hist Mag. (2d Series), vi, 
270-71. 



352 JOHN MARSHALL 

magnanimity to declare that they will devote their 
lives and property to support the Government." * 
While there was a little Anti-Constitutionalist ac- 
tivity among the people after the Convention ad- 
journed, 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 show- 
ing 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 aristo- 
crats, some of whom were "speculating for fortune, 
by sporting with public money." Only "a few, a 
very few [Constitutionalists] . . . were . . . defend- 
ing 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 be- 
tray 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 

1 King to Madison, Feb. 6, 1788; King, i, 320. 



THE STRUGGLE FOR RATIFICATION S53 

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 inexperi- 
enced votary and send him rambling from State to 
State, to collect materials to construct the ladder 
of preferment." l 

Thus protested Gerry; but if the people, in spite 
of his warnings, would "give their voices for a vol- 
untary dereliction of their privileges" — then, con- 
cluded Gerry, "while the statesman is plodding for 
power, and the courtier practicing the arts of dis- 
simulation 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 inconsis- 
tency of human nature, the revolutions of states, the 
rise of kingdoms, and the fall of empires." 2 

Such was the resistance offered to the Constitu- 
tion in Massachusetts, such the debate against it, 
the management that finally secured its approval 
with recommendations by that Commonwealth, 3 and 
the after effects of the Constitutionalists' tactics. 

1 Gerry, in Ford: P. on C, 1-23. 

2 lb., 23. When a bundle of copies of Gerry's pamphlet was received 
by the New York Anti-Constitutionalists in Albany County, they de- 
cided that it was "in a style too sublime and florid for the common 
people in this part of the country." (lb., 1.) 

3 During the debates the Boston Gazette published the following 
charge that bribery was being employed to get votes for the Con- 
stitution : — 

BRIBERY AND CORRUPTION ! ! I 

"The most diabolical plan is on foot to corrupt the members of the 
Convention, who oppose the adoption of the new Constitution. Large 



354 JOHN MARSHALL 

In New Hampshire a majority of the Convention 
was against the Constitution. "Almost every man of 
property and abilities . . . [was] for it," wrote Lang- 
don 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 them- 
selves; together with a thousand other absurdities, 
which frightened the people almost out of what little 
senses they had." * 

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 Pub- 
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. 

1 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., 2M-25.) 



THE STRUGGLE FOR RATIFICATION 355 

lius are not known. . . . The debates of the Pennsyl- 
vania and Massachusetts Conventions have been 
read by but few persons; and many other pieces, 
which contain useful information have never been 
heard of." l 

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. 2 Learning this in New 
York, nine days later, Madison wrote Pendleton 
that the adjournment had been "found necessary 
to prevent a rejection." 3 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." 4 

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. 5 

1 Lear to Washington, June 2, 1788; Cor. Rev.: Sparks, iv, 220. 

2 Langdon to King, Feb. 23, 1788; King, i, 321-22. 

3 Madison to Pendleton, March 3, 1788 (Writings: Hunt, v, 110), 
and to Washington, March 3, 1788 (ib., Ill); and to Randolph; 
March 3, 1788 (ib., 113). 

4 Langdon to King, May 6, 1788; King, i, 328. 

6 Washington to Lafayette, Feb. 7, 1788; Writings: Ford, xi, 220, 



356 JOHN MARSHALL 

" 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 opposi- 
tion," writes Marshall many years afterwards in a 
careful review of the thorny path the Constitution 
had had to travel. 1 Its foes, says Marshall, were 
"firmly persuaded that the cradle of the constitu- 
tion would be the grave of republican liberty." 2 

In Virginia's Convention, the array of ability, dis- 
tinction, 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 discus- 
sion 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 conven- 
tion," wrote Washington to Madison, more than 
four months before the Convention, "the most pre- 
vailing one . . . will be that nine states at least will 
have acceded to it." 3 

1 Marshall, ii, 127. 2 lb. 

3 Washington to Madison, Jan. 10, 1788; Writings: Ford, xi, 20& 






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 con- 
ceived 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 1 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 pilot- 
ing 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 disci- 
plined dispatch. 

Intelligence of the New Hampshire Convention, 
of their success in which the Constitutionalists fin- 
ally 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 

1 Though "practical," these methods were honorable, as far as the 
improper use of money was concerned. 



358 JOHN MARSHALL 

assured Langdon. 1 As to Virginia, Hamilton wrote 
Madison to send news of "any decisive question . . . 
if favorable ... by an express . . . with pointed or- 
ders to make all possible diligence, by changing 
horses etc."; assuring Madison, as King did Lang- 
don, that "all expense shall be thankfully and liber- 
ally paid." 2 

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. 3 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." 4 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 con- 
cerning your decision." 5 "Our chance of success 
depends on you," was Hamilton's own despairing 
appeal to the then leader of the Southern Consti- 
tutionalists. "If you do well there is a gleam of 
hope; but certainly I think not otherwise." 6 The 

1 King to Langdon, June 10, 1788; King, i, 331. 

2 Hamilton to Madison, May 19, 1788; Works: Lodge, ix, 430. See 
also ib., 432. 

3 Knox to King, June 19, 1788; King, i, 335. 

4 Hill to Thatcher, Jan. 1, 1788; Hist. Mag. (2d Series), vi, 261. 
6 King to Madison, May 25, 1788; King, i, 329. 

6 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. 



IN THE GREAT CONVENTION 359 

worried New York Constitutionalist commander was 
sure that Virginia would settle the fate of the pro- 
posed National Government. "God grant that Vir- 
ginia may accede. The example will have a vast 
influence." 1 

Virginia's importance justified the anxiety con- 
cerning her action. Not only was the Old Domin- 
ion preeminent 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 popula- 
tion of the Southern States; . . . and more than a 
fifth of the population of the whole Union." 2 

The Virginia Constitutionalists had chosen their 
candidates for the State Convention with pains- 
taking 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; 3 and these and 

1 Hamilton to Madison, June 8, 1788; Works: Lodge, ix, 432-34. 

2 Grigsby, i, 8. About three eighths of Virginia's population were 
slaves valued at many millions of dollars. 

8 Grigsby, i, footnote to 50; also 32; and see examples given by 
Judge Scott, in Scott, 235-38. 



360 JOHN MARSHALL 

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 sol- 
diers 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." 1 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. 2 

No practical detail of election day had been over- 
looked 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." 3 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 

1 Grigsby, i, footnote to 36; and see 29, 62, 339. 

1 Henry, ii, 339; and Rowland, ii, 223 et seq. 3 Rives, ii, 549. 



IN THE GREAT CONVENTION 361 

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. 1 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." 2 But it was privately printed in 
Richmond and Randolph sent a copy to Washing- 
ton. On January 3, 1788, the letter was published in 
the Virginia Gazette together with other correspond- 
ence. In an additional paragraph, which does not 
appear in Randolph's letter as reproduced in El- 
liott, 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. 3 But he had declared to Richard 
Henry Lee that "either a monarchy or aristocracy 
will be generated " by it. 4 

1 Randolph to the Speaker of the House of Delegates, Oct. 10, 
1787; Elliott, i, 482-91; also Ford: P. on C, 261-76. 

2 Randolph to Page and others, Dec. 2, 1787; American Museum, 
iii, 61 et seq. 

8 lb. 

4 Lee to Randolph, Oct. 16, 1787; Elliott, i, 503. Upon the publi- 
cation of this correspondence a young Richmond attorney, Spencer 
Roane, the son-in-law of Patrick Henry, in an article signed "Plain 



362 JOHN MARSHALL 

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 ac- 
complish the defeat of the "New Plan." The oppo- 
nents of the proposed National Government worked 
hard with Randolph to strengthen his resolution and 
he gave them little cause to doubt their success. 1 

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 unquali- 
fied advocacy of the Constitution. The question 
was, said Washington, the acceptance of the Con- 
stitution or "a dissolution of the Union." 2 Madison, 

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 Consti- 
tution, should be generally accepted, and become 'the spirit of Amer- 
ica,' 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. in 
of this work.) 

1 "The importunities of some to me in public and private are de- 
signed to throw me unequivocally and without condition, into the 
opposition." (Randolph to Madison, Feb. 29, 1788; Conway, 101.) 

2 Washington to Randolph, Jan. 8, 1788; Writings: Ford, xi, 
204-06. 



IN THE GREAT CONVENTION 363 

in a subtle mingling of flattery, argument, and insin- 
uation, skillfully besought his "dear friend" Ran- 
dolph 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 Revo- 
lution. . . . Nothing can be further from your [Ran- 
dolph's] views than the principles of the different 
sets of men who have carried on their opposition 
under the respectability of your name." x 

Randolph finally abandoned all opposition and 
resolved to support the Constitution even to the 
point of resisting the very plan he had himself pro- 
posed and insisted upon; but nobody, with the pos- 
sible exception of Washington, was informed of this 
Constitutionalist master-stroke until the Conven- 
tion met; 2 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 

1 Madison to Randolph, Jan. 10, 1788; Writings: Hunt, v, 79-84; 
and see same to same, Jan. 20, 1788 (z'6., 86-88) ; and March 3, 1788 
(ib., 113-14). 

2 "If he [Randolph] approves it at all, he will do it feebly." (Wash- 
ington to Lafayette, April 28, 1788; Writings: Ford, xi, 255; and see 
Madison to Jefferson, April 22, 1788; Writings: Hunt, v, 121.) 



S64 JOHN MARSHALL 

have done so would have been useless in any event; 
for Randolph could have been elected almost unani- 
mously 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." * 
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 ratifi- 
cation. 2 

Rut the people were not in the dark when they 
voted for the only candidate the Constitutionalists 
openly brought out in Henrico County. John Mar- 
shall 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." 3 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 candi- 
date] is not popular enough on other scores to be 

1 Randolph to Madison, Feb. 29, 1788; quoted in Conway, 101. 

2 " 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. y 225, 227, 231.) 

3 lb. 



IN THE GREAT CONVENTION 365 

elected, altho' he is perfectly a Henryite." 1 Mar- 
shall admitted that the people who elected Randolph 
and himself were against the Constitution; and de- 
clared that he owed his own election to his individ- 
ual strength with the people. 2 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 de- 
vices to arouse the suspicions, distrust, and fears of 
the people. "The opposition to it [the Constitu- 
tion] ... is addressed more to the passions than to 
the reason," declared Washington. 3 

Henry was feverishly active. He wrote flaming 
letters to Kentucky that the Mississippi would be 
lost if the new plan of government were adopted. 4 
He told the people that a religious establishment 
would be set up. 5 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." 6 
Writing to Hamilton of the activities of the oppo- 
sition, Washington asserted that "their assiduity 
stands unrivalled"; 7 and he informed Trumbull 

1 Randolph to Madison, Feb. 29, 1788; : Conway, 101. 2 Scott, 160. 

3 Washington to Carter, Dec. 14, 1787; Writings: Ford, xi, foot- 
note to 210. 

4 Smith to Madison, June 12, 1788; Rives, ii, footnote to p. 544. 

6 lb. "The Baptist interest . . . are highly incensed by Henry's 
opinions and public speeches." (Randolph to Madison, Feb. 29, 1788; 
Conway, 101.) 

6 Smith to Madison, June 12, 1788; Rives, ii, 544. 

7 Washington to Hamilton, Nov. 10, 1787; Writings: Ford, xi, 
footnote to p, 181. 



366 JOHN MARSHALL 

that "the opponents of the Constitution are inde- 
fatigable." 1 

"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 Navi- 
gation of the Mississippi (their favorite object) will 
be a certain consequence of the adoption of the Con- 
stitution." 2 

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"; 3 and that the Constitu- 
tion "promised a large field of employment to mili- 
tary gentlemen, and gentlemen of the law; and in 
case the government shall be executed without con- 
vulsions, it will afford security to creditors, to the 
clergy, salary-men and others depending on money 
payments." 4 

Nor did the efforts of the Virginia opponents of 
a National establishment stop there. They spread 

1 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 Na- 
tional 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 Govern- 
ment. (Washington to Knox, Feb. 3, 1787; Sparks, ix, 230; and see 
Graydon, 340.) 

2 Washington to Lincoln, April 2, 1788; ib., xi, footnote to 239-40. 
8 "Letters of a Federal Farmer," no. 3; Ford: P. on C, 301. 

4 lb., no. 5, 319. 



IN THE GREAT CONVENTION 367 

the poison of personal slander also. "They have 
attempted to vilify & debase the characters who 
formed" the Constitution, complained Washington. 1 
These cunning expedients on one side and desperate 
artifices on the other were continued during the sit- 
ting 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 Con- 
stitutionalists elected, and puts only Pendleton, 
Wythe, Blair, and Innes ahead of him. 2 

When the Convention was called to order, it 
made up a striking and remarkable body. Judges 
and soldiers, lawyers and doctors, preachers, plant- 
ers, 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. 3 

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 

1 Washington to Armstrong, April 25, 1788; Writings: Ford, xi, 
252; and to Petit, Aug. 16, 1788; ib., 300. 

2 Madison to Jefferson, April 22, 1788; Writings: Hunt, v, 120-22. 
8 Grigsby, i, 34-35; and footnote to 49. 



368 JOHN MARSHALL 

with precision. For the important position of Presi- 
dent of the Convention, they agreed on the venerable 
Chancellor, Edmund Pendleton, who was able, judi- 
cial, and universally respected. He was nominated 
by his associate, Judge Paul Carrington, and unan- 
imously elected. 1 

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-Constitu- 
tionalists 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 short- 
hand reporter, David Robertson, appeared to take 
down a stenographic report of the debates; and this 
innovation was bitterly resented and resisted by the 
opposition 2 as a Constitutionalist maneuver. 3 Mar- 
shall was appointed a member of the committee 4 
which examined the returns of the elections of mem- 
bers and also heard several contested election cases. 5 

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 

1 Grigsby, i, 64-66; and Elliott, iii, 1. 
* Rowland, ii, 222. 

3 Henry, ii, 345. So angered were the Anti-Constitutionalists 
that they would not correct or revise Robertson's reports of their 
speeches. (lb.) 

4 Elliott, iii, 1. 5 lb., 5-6; also, Journal of the Convention, 7-11. 




GEORGE WYTHE 



IN THE GREAT CONVENTION 369 

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 accom- 
plished leaders. When George Mason arose, every- 
body 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 Conven- 
tion 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 Ma- 
son was an impressive figure as he stood forth to 
strike the first blow at the new ordinance of Na- 
tionality. 1 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. 2 

1 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 de- 
scendants 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. 2 Elliott, iii, 3. 



370 JOHN MARSHALL 

The Constitutionalists, keen-eyed for any strategic 
blunder of their adversaries, took instant advantage 
of Mason's bad generalship. Madison suavely agreed 
with Mason, 1 and it was unanimously resolved that 
the Constitution should be "discussed clause by 
clause through all its parts," 2 before any question 
should be put as to the instrument itself or any part 
of it. Thus the opposition presented to the Con- 
stitutionalists the very method the latter wished for, 
and had themselves planned to secure, on their own 
initiative. 3 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 Con- 
stitution; 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 suggest- 
ing action to States. It was not only an economic 

1 Mason's clause-to-clause resolve was, "contrary to his expecta* 
tions, 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 fed- 
eralists, and their ready acquiescence seems to have somewhat startled 
the opposite side for fear they had committed themselves." (Washing- 
ton to Jay, June 8, 1788; Writings: Ford, xi, 271.) 

2 Elliott, iii, 4. * Grigsby, i, 77. 



IN THE GREAT CONVENTION 371 

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 "lib- 
erty" meant tumult and social chaos, 

The mouths of the former were filled with those 
dread and sounding words "despotism" and "arbi- 
trary 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," "aris- 
tocracy," "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 overwhelm- 
ingly 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 sus- 
picion, 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 ex- 
alted 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 mer- 
chant, the creditor, the financial interests. 



372 JOHN MARSHALL 

True, the people had suffered by the loose arrange- 
ment 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 com- 
pelled, 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 them- 
selves, could not be successfully combated. Al- 
though 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. 1 

And now the Constitutionalists were eager to push 
the fighting. The soldierly Lee was all for haste. 
The Anti-Constitutionalists held back. Mason pro- 
tested "against hurrying them precipitately." Har- 
rison said "that many of the members had not yet 
arrived." 2 On the third day, the Convention went 

1 For a discussion of this tactical blunder of the opponents of the 
Constitution, see Grigsby, i, 72. 2 Elliott, iii, 4. 



IN THE GREAT CONVENTION 373 

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 * — taken the gavel before Patrick Henry was 
on his feet. 

Henry moved for the reading of the acts by au- 
thority of which the Federal Convention at Phila- 
delphia had met, 2 for they would show the work 
of that Convention to be illegal and the Constitu- 
tion 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 champion- 
ing, much of the mistake of yesterday might be re- 
trieved. 

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 con- 
sider," said Pendleton, "whether the Federal Con- 
vention 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 re- 
ferred it to the people who had elected the pres- 
ent Convention to pass upon it. 3 Pendleton's brief 

1 Grigsby, i, 75. * Elliott, iii, 6. 8 lb. 



374 JOHN MARSHALL 

speech was decisive; 1 Henry withdrew his motion; 
the preamble and the first two sections of the first 
article of the Constitution were laid before the com- 
mittee and the destiny-determining debate began. 

The Constitutionalists, who throughout the con- 
test 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 them- 
selves. 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. 2 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 rea- 
soning he was the equal if not the superior of Mad- 
ison himself; and his grim personality made the meek 
one of Madison seem tender in comparison. Nothing 
could disconcert him, nothing daunt his cold cour- 
age. He probably was the only man in the Conven- 
tion whom Henry feared. 3 

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 ex- 
position of the sections then under consideration. 

1 Grigsby, i, 77. 2 lb., 79. 3 76., 78, 79, 140, 141, 246, 247. 



IN THE GREAT CONVENTION 375 

He ended by saying "that he was willing to trust his 
own happiness, and that of his posterity, to the 
operation of that system." 1 

The Constitution's enemies, thus far out-pointed 
by its perfectly trained and harmonious supporters, 
could delay no longer. Up rose the idol and cham- 
pion 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 flash- 
ing 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 In- 
dependence, still wrought its spell. 2 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 re- 
public 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 

1 Elliott, iii, 7-21. 2 Grigsby, i, 76. 



376 JOHN MARSHALL 

getting along very well. Why had they done what 
they had no power to do? * 

Thus Henry put the Constitutionalists on the 
defensive. But they were ready. Instantly, Ran- 
dolph was on his feet. He was thirty-seven years 
of age, fashioned on noble physical lines, with hand- 
some 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. 2 He was the ostensible author 3 
of the plan on the broad lines of which the Consti- 
tution finally had been built. His refusal to sign it 
because of changes which he thought necessary, and 
his conversion to the extreme Constitutionalist posi- 
tion, 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 be- 
lieved 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 un- 
equal to the emergency and that passion might pre- 
vail 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 

1 Elliott, iii, 21-23. 2 Grigsby, i, 83-84. 

3 Madison was the real designer of the Virginia plan. (Rives, ii» 
chap, xxvii.) 



IN THE GREAT CONVENTION 377 

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 re- 
fusal 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 " ; x and he would strike off his arm rather 
than permit that. 

Randolph then reviewed the state of the country 
under the Confederation: Congress powerless, pub- 
lic 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 suffi- 
cient solidity or wisdom" to keep it. True, the Fed- 
eral 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." 2 

The secret was out, at last; the Constitutionalists' 
coup was revealed. His speech placed Randolph 
openly and unreservedly on their side. "The Gov- 
ernor has . . . thrown himself fully into the federal 
scale," gleefully reported the anxious Madison to 
the supreme Nationalist chieftain at Mount Vernon. 3 

1 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. 

2 Elliott, hi, 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. 

3 Madison to Washington, June 4, 1788; Writings: Hunt, v, 124. 



378 JOHN MARSHALL 

"The G[overno]r exhibited a curious spectacle to 
view. Having refused to sign the paper [the Consti- 
tution] everybody supposed him against it," was 
Jefferson's comment on Randolph's change of front. 1 
Washington, perfectly informed, wrote Jay in New 
York that "Mr. Randolph's declaration will have 
considerable effect with those who had hitherto been 
wavering." 2 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, uncondi- 
tional submission." 3 

All of Randolph's influence, popularity, and pres- 
tige of family were to be counted for the Constitu- 
tion without previous amendment; and this was a 
far weightier force, in the practical business of get- 
ting votes for ratification, than oratory or argu- 
ment. 4 So "the sanguine friends of the Constitution 
counted upon a majority of twenty . . . which num- 
ber they imagine will be greatly increased." 5 

Randolph's sensational about-face saved the Con- 
stitution. 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, 

1 Jefferson to Short, Sept. 20, 1788; quoting a private letter from 
Virginia of July 12; Works: Ford, v, 431. 

2 Washington to Jay, June 8, 1788; Writings: Ford, xi, 271. 

8 Bland to Lee, June 13, 1788; Rowland, ii, 243-44. Evidently the 
opposition was slow to believe that Randolph had irrevocably de- 
serted them; for Bland's letter was not written until Randolph had 
made his fourth extended speech ten days later. 4 Scott, 160. 

6 Washington to Jay, June 8, 1788; Writings: Ford, xi, 271. 



IN THE GREAT CONVENTION 379 

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 Con- 
federation. 

By now the Anti-Constitutionalists, or Republi- 
cans 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 Consti- 
tutionalists; but they were just as earnest and deter- 
mined. 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 Con- 
stitution, and her Governor, George Clinton, was the 
most stubborn and resourceful of its foes. On De- 
cember 27, 1787, Governor Randolph, under the for- 
mal direction of Virginia's Legislature, had sent the 
Governors of the other States a copy of the act pro- 
viding for Virginia's Convention, which included 
the clause for conferring with her sister Common- 
wealths upon the calling of a new Federal Conven- 
tion. The one to Clinton of New York was delayed 



S80 JOHN MARSHALL 

in the mails for exactly two months and eleven days, 
just long enough to prevent New York's Legislature 
from acting on it. 1 

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." 2 

When Clinton thus wrote to Randolph, he sup- 
posed, of course, that the Virginia Governor was 
against the Constitution. Had the New York Execu- 
tive 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 Execu- 
tive 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 

1 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, vn.) 

8 Clinton to Randolph, May 8, 1788; Conway, 110-12. 



IN THE GREAT CONVENTION 381 

New York communication before the Virginia Legis- 
lature which assembled just as the Convention was 
adjourning. 1 

Weighty as were the arguments and brilliant the 
oratory that made the Virginia debate one of the no- 
blest 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 Constitu- 
tionalists; 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 aggres- 
sively supported them with all his incalculable 
moral influence; that, if the new National Govern- 
ment 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 pos- 
sessed 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 

1 Clinton to Randolph, May 8, 1788; Conway, 110-12; Henry, ii, 
363; Rowland, ii, 276-79; and see infra, chap. xn. 



382 JOHN MARSHALL 

against the known will of their constituents, it be- 
comes plain how vitally necessary to their cause 
was the Constitutionalists' capture of the Virginia 
Governor. 1 

The opponents of the proposed National Govern- 
ment never forgave him nor was his reputation ever 
entirely reestablished. Mason thereafter scathingly 
referred to Randolph as "young A[rno]ld." 2 

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 pro- 
vides for." The power of direct taxation alone "is 

1 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 in- 
ference 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 mem- 
bers 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." (Ran- 
dolph to Madison, July 19, 1789; Conway, 127-28.) 

* Rowland, ii, 308. 



IN THE GREAT CONVENTION 383 

calculated to annihilate totally the state govern- 
ments." It means, said Mason, individual taxation 
"by two different and distinct powers" which "can- 
not 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 gov- 
ernment " 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 con- 
vinced 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 unan- 
imity." x 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 

1 Elliott, iii, 29-34. 



384 JOHN MARSHALL 

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. 1 

So the Convention adjourned and the day ended 
with the Constitutionalists in high spirits. 2 Madi- 
son wrote to Washington that "Henry & Mason 
made a lame figure & appeared to take different and 
awkward ground. The Federalists [Constitutional- 
ists] 3 are a good deal elated by the existing pros- 
pect." 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 & preju- 
dices of that & other quarters." 4 

The next day the building of the New Academy, 
where the Convention met, was packed with an 
eager throng. Everybody expected Madison to en- 
gage both Henry and Mason as he had intimated that 
he would do. But once more the excellent manage- 
ment of the Constitutionalists was displayed. Madi- 
son, personally, was not popular, 5 he was physically 
unimpressive, and strong only in his superb intellect. 
The time to discharge the artillery of that powerful 

1 Elliott, iii, 34-35. 2 Grigsb?, i, 99. 

3 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 em- 
ployed in these chapters. 

4 Madison to Washington, June 4, 1788; Writings: Hunt, v, foot- 
note to 123-24. 

6 Grigsby, i, footnote to 4C. 



IN THE GREAT CONVENTION 385 

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 Constitu- 
tionalists combined the ermine and the sword. Vir- 
ginia'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 rev- 
erenced 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 ex- 
pected 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. 1 The 
Constitutionalists had set the stage to catch the 

1 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 de- 
cided by the sympathetic votes of aged friends who answered the call 
of long years of affection. 



386 JOHN MARSHALL 

emotions which they affected to despise, with the 
very character whose strength was in that pure rea- 
soning 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 so- 
ciety 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 govern- 
ment and the Confederation," which "is no govern- 
ment 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 reechoed 
through America — from Congress to the drunken 
carpenter" — saved us in that dark hour. And Pen- 
dleton clearly, briefly, solidly, answered every ob« 






IN THE GREAT CONVENTION 387 

jection 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. 1 

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. 2 But the Constitutional- 
ists 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 reputa- 
tion assigned him. Descended from one of the oldest 
and most honorable families in the colony, a gradu- 
ate 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 com- 
mand, the gallant Lee was a perfect contrast to the 
venerable Pendleton. 3 

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 Wash- 
ington; yet Washington was for the Constitution. 
What was there wrong with the expression "We, the 

1 Elliott, iii, 35-41. 

2 See infra, chap, in; also Grigsby, i, 105-06. $ 76., 106-09. 



388 JOHN MARSHALL 

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 imbecil- 
ity of the Confederation." * 

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 ex- 
pression, 'We, the people; instead of the states." 
It was an "alarming transition ... a revolution 2 
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. 

1 Elliott, iii, 41-43. 

2 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. 



IN THE GREAT CONVENTION 389 

The method of amendment provided in the Con- 
stitution, 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 ter- 
rify us into an adoption of this new form of govern- 
ment? . . . 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 Govern- 
ment "on the middling and lower classes of people" 
that Henry feared. "This government" [the Consti- 
tution], 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 



390 JOHN MARSHALL 

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 magnifi- 
cence." The National Government's tax-gatherers 
would "ruin you with impunity," he warned his fel- 
low 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 re- 
cesses." Its friends talked about the beauty of the 
Constitution, but to Henry its features were "hor- 
ribly 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 punish- 
ment? Rather, he will "make one bold push for the 



IN THE GREAT CONVENTION S91 

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." 2 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 Con- 
gress over elections, and the treaty-making power. 
A majority of the people were against the Constitu- 
tion, 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. 2 ... 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. 3 

Studying this attack and defense of master swords- 
men, following the tactical maneuvers of America's 
ablest politicians, a partisan on one side, yet per- 
sonally friendly with members of the other, John 

1 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, hi, 60.) 

2 Henry had not heard of the Constitutionalists' bargain with 
Hancock in Massachusetts. 

3 Elliott, hi, 43-64. 



392 JOHN MARSHALL 

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 curi- 
ously gifted, mastering the subjects under discussion. 
Also, although casual, humorous, and apparently in- 
different, 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. 1 
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. 2 

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. . . . Jus- 

1 General Posey, a Revolutionary officer, who was for the Constitu- 
tion, 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.) 

2 Grigsby, i, 121. 



IN THE GREAT CONVENTION 393 

tice 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 con- 
template it without horror." l As to "the American 
spirit" expressed through the militia being compe- 
tent 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. 2 But his fervor, popularity, 
and influence were not enough. 

1 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 ap- 
pears in ib., ii, 330-36. 

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. 

2 Again, Randolph's speech was marred by the note of personal 



394 JOHN MARSHALL 

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 hand- 
some 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 pow- 
dered 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. 1 
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. 2 He would not, re- 
marked 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 

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. 

1 Grigsby, i, 130. Madison's apparel at this Convention was as 
ornate as his opinions were, in his opponents' eyes, "aristocratic." 

2 Elliott, iii, 86. See entire speech, ib. y 86-96. 



IN THE GREAT CONVENTION 395 

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 Con- 
stitution] 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 Wash- 
ington's nephew to the General at Mount Vernon, 
"as to . . . flatter myself that he made many con- 
verts." * 

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 ac- 
tion. George Nicholas again took the floor. He was 
surprised that Mason's resolution to debate the Con- 
stitution 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. 2 

Age and middle age had spoken for the Constitu- 
tion; voices from the bench and the camp, from the 

1 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 gov- 
ernment as partly National and partly Federal. (Elliott, iii, 94 ; and 
see Henry's use of this, ib., 171; also infra.) 

2 Elliott, iii, 97-103. 



396 JOHN MARSHALL 

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 seven- 
teenth 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 rich- 
est country on earth." As to a Republican Govern- 
ment 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 shrewd- 
ness of the Constitutionalist generals in putting 
forward this youthful and charming figure. 1 

Of course Henry could not follow a mere boy. 
He cleverly asked that Governor Randolph should 
1 Elliott, iii, 104-14. 



IN THE GREAT CONVENTION 397 

finish, as the latter had promised to do. 1 Randolph 
could not avoid responding; and his speech, while 
very able, was nevertheless an attempt to explode 
powder already burned. 2 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. 3 The philosophy and 
method of taxation, the history and reason of gov- 
ernment, the whole range of the vast subject were 
discussed, 4 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. 5 

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 re- 
newed 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 neces- 

1 Elliott, iii, 114. 2 lb., 114-28. 

8 Madison was equaled only by Hamilton in sheer intellectuality, 
but he was inferior to that colossus in courage and constructive genius. 

4 lb., 128-37. 

6 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. Thev cannot be summarized here, but should be read in full. 



398 JOHN MARSHALL 

sary 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 Con- 
stitution 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 im- 
piously 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 max- 
ims"; 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 Ran- 
dolph. "It seems to me very strange and unac- 
countable that that which was the object of his 
execration should now receive his encomiums. Some- 
thing 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, an- 
swered 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 Constitution- 
alist speakers had pictured. The "imaginary dan- 
gers" conjured by them were to intimidate the peo- 
ple; but, cried Henry, "fear is the passion of slaves." 
The execution of Josiah Philips under the bill of at- 
tainder was justifiable. Philips had been a "fugitive 
murderer and an outlaw" leader of "an infamous 



IN THE GREAT CONVENTION 399 

banditti," perpetrator of "the most cruel and shock- 
ing barbarities ... an enemy to human nature. " * 

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 illumi- 
nated 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 prob- 
able 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 Gov- 
ernment as something foreign. Picking up a careless 
word of Randolph, who had spoken of the people 

1 See supra, footnote to 393. 



400 JOHN MARSHALL 

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." 1 
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. 

1 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; * 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. 2 
During the second week the Philadelphia financier 
w r rites Gates from Richmond, lamenting "the depre- 

1 "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.) 

2 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 Mc- 
Master and Stone, 631.) 

Robert Morris was in Richmond, March 21, 1788. (Morris to In- 
dependent Gazetteer on that date; ib., 787, denying the charge that 
paper had made against him. See supra, chap, x.) He was in Rich- 
mond in May and paid John Marshall four pounds, four shillings as 
a "retainer." (Account Book, May 2, 1788.) He had heavy business in- 
terests in Virginia; see Braxton vs. Willing, Morris & Co. (4 Call, 288). 
Marshall was his lawyer. 



402 JOHN MARSHALL 

dations on my purse," but "inclined to think the 
Constitution will be adopted by Virginia." x 

For the opposition, Oswald, publisher of the 
"Independent Gazetteer," came on from Phila- 
delphia 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 Sat- 
urday; and he has closet interviews with the leaders 
of the opposition." 2 By the same mail Grayson 
advises the general Anti-Constitutionalist head- 
quarters 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-Con- 
stitutionalists estimated the real situation. Rut 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 news- 
papers. 3 

Just what was devised and decided by the leaders 
of both sides in these behind-the-doors meetings and 

1 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 Con- 
vention. 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. 

2 Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong. 

3 Grayson to Lamb, June 9, 1788; quoted in Leake: Lamb, 311. 



THE SUPREME DEBATE 403 

what methods were used outside the Convention hall 
to influence votes, there is no means of learning ex- 
actly; though "the opposition" committee seems to 
have been occupied chiefly in drawing amendments. 1 
But the frequent references, particularly of the Con- 
stitutionalist speakers on the floor, to improper con- 
duct 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. 2 

On Monday, Henry and Mason made a dramatic 
entrance into the Convention hall. Walking arm 
in arm from their quarters in "The Swan," 3 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-Constitu- 
tionalist chieftains made their way to their seats 
with great difflculty. 4 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 Ken- 
tucky. 5 Henry held up before them the near for- 
feiture to the Spanish of our right to navigate the 

1 Grayson to Lamb, June 9, 1788; quoted in Leake: Lamb, 311. 

2 Grigsby, i, 149-50. 

3 The new tavern at Richmond — competitor of Formicola's inn, 

4 Grigsby, i, 151. 

6 Kentucky had fourteen members. On the final vote, the Constitu- 
tion 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^ 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. 



404 JOHN MARSHALL 

Mississippi. 1 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 suc- 
ceeded in surrendering the great waterway and the 
West and South would surely be deprived of that 
invaluable commercial outlet. He asked the mem- 
bers 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." 2 

Henry answered the Constitutionalists' prophecy 
of foreign war, ridiculed danger from the Indians, 
proved that the Constitution would not pay Vir- 
ginia's debts; and, in characteristic fashion, ranged 
at large over the field. The Constitution, he as- 
serted, would "operate like an ambuscade . . . de- 
stroy the state governments . . . swallow the liber- 
ties of the people without" warning. "How are our 
debts to be discharged unless taxes are increased?" 
asked he; and demonstrated that under the Consti- 
tution 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! 9 . . . Repub- 

1 The Jay-Gardoqui agreement. 

2 Jefferson to Donald, Feb. 7, 1788; Jefferson's Writings: Wash- 
ington, ii, 355; and see Monroe to Jefferson, July 12, 1788; Writings: 
^milton, i, 186-87. 



THE SUPREME DEBATE 405 

lican maxims, . . . and the genius of Virginia landed 
you safe on the shore of freedom." 

Once more he praised the British form of govern- 
ment — 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 lan- 
guage 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." 1 

Seizing Madison's description of the new Gov- 
ernment as partly National and partly Federal, 
Henry brought to bear all his power of satire. He was 
"amused" at Madison's "treatise of political anat- 
omy. ... In the brain it is national; the stamina 
are federal; some limbs are federal, others national." 
Absurd! The truth was, said Henry, that the Con- 
stitution provided for "a great consolidation of gov- 
ernment." 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 

1 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." (lb., 170.) 



406 JOHN MARSHALL 

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 de- 
scription 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." 1 And 
then, with one of those lightning changes of genius, 
which Henry alone could make, he solemnly ex- 
claimed, "I look on that paper [the Constitution] 
as the most fatal plan that could possibly be con- 
ceived to enslave a free people." 2 

Lee, in reply, spoke of the lobbying going on out- 
side 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 him- 
self a soldier. "I saw what the honorable gentle- 
man did not see," cried Lee, "our men fight with the 
troops of that King whom he so much admires." 3 

When the hot-blooded young soldier had finished 
his aggressive speech, Randolph could no longer 
restrain himself. Henry's bold challenge of Ran- 
dolph's change of front had cut that proud and sen- 

1 Grigsby, i, footnote to 157. 2 Elliott, iii, 150-76. 

8 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.) 



THE SUPREME DEBATE 407 

sitive 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 an- 
swer Henry that he spoke, snarled Randolph, "but 
to satisfy this respectable audience." Randolph then 
explained his conduct, reading part of the letter 1 
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 ." 2 Randolph spoke for the remainder of 
the day and consumed most of the next forenoon. 3 

No soldier had yet spoken for the Anti-Constitu- 
tionalists; 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, 4 James Monroe made 
a long, dull, and cloudy speech, finally declaring of 
the Constitution, "I think it a dangerous govern- 
ment"; and asking "why . . . this haste — this 
wild precipitation?" Long as Monroe's speech was, 
he reminded the Convention that he had "not yet 

1 Randolph's letter explaining why he had refused to sign the Con- 
stitution. 

2 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.) 

3 Elliott, iii, 187-207. 

4 Grigsby, i, 167-68. 



408 JOHN MARSHALL 

said all that I wish upon the subject" and that he 
would return to the charge later on. 1 

Monroe did not help or hurt either side except, 
perhaps, by showing the members that all the Revo- 
lutionary 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. 2 

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. 3 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. 4 He 

1 Elliott, hi, 207-22. 

2 "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. (lb., 350.) 

3 Grigsby, i, 176. 

4 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." (lb., April 1, 1788.) Yet about the same time he spent 
one pound, nine shillings at a "barbecue." 



THE SUPREME DEBATE 409 

probably was the best liked of all the members 
of the Convention. Sociable to extreme good-fel- 
lowship, "his habits," says Grigsby, "were conviv- 
ial almost to excess"; 1 and it is more than likely 
that, considering the times, these habits in his inti- 
mate 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. 2 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, 3 a fact which 
added to the interest of his fellow members in his 
speech. 

The question, Marshall said, was "whether de- 
mocracy or despotism be most eligible." 4 He was 
sure that the framers and supporters of the Constitu- 
tion "intend the establishment and security of the 
former"; they are "firm friends of the liberty and 

1 Grigsby, i, 176. 

2 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. 

3 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. 

4 Elliott, iii, 222. 



410 JOHN MARSHALL 

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 de- 
mocracy." But, "what are the . . . maxims of de- 
mocracy? ... A strict observance of justice and 
public faith, and a steady adherence to virtue. 
These, Sir, are the principles of a good govern- 
ment," * declared the young Richmond Constitu- 
tionalist. 

"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, 

1 Marshall's idea was that government should be honest and effi- 
cient; 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. 



THE SUPREME DEBATE 411 

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? " * 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 Constitu- 
tion. 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 Ken- 
tucky, and his relative, Humphrey Marshall, was 
a member of the Convention from that district. 2 
Marshall himself was the legislative agent of the 
District of Kentucky in Richmond. The devel- 
opment of the West became a vital purpose with 
John Marshall, strengthening with the years; and 

1 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.) 

2 Humphrey Marshall, i, 254. Humphrey Marshall finally voted 
for the Constitution, against the wishes of his constituents. (Scott, 
135-38.) 



412 JOHN MARSHALL 

this was a real force in the growth of his views on 
Nationality. 1 

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 ob- 
ject being "disunion." They would not propose 
amendments that were similar or that all could agree 
upon. When the Federal Convention met, said Mar- 
shall, "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 Constitu- 
tionalists were fighting for was "a well-regulated 
democracy." Could the people themselves make 
treaties, enact laws, or administer the Govern- 
ment? 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, "y° u can have no government." 
1 See vol. in of this work. 



THE SUPREME DEBATE 413 

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 re- 
laxed 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 argu- 
ments 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 de- 
clared; 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 



414 JOHN MARSHALL 

argument against its expediency''; but, said Mar- 
shall, 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 ob- 
jects of national government? To protect the United 
States, and to promote the general welfare. Protec- 
tion, 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 gen- 
eral welfare. "By the national government only" 
could these things be done; "shall we refuse to 
give it power to do them?" He scorned the asser- 
tion "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 de- 
fenseless 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 in- 
vite them by our weakness to attack us, will they 
not do it? If we add debility to our present situa- 
tion, 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 



THE SUPREME DEBATE 415 

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 dictator- 
ship; 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 Constitu- 
tion less active in the defense of liberty, on that try- 
ing 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 giv- 
ing 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 



416 JOHN MARSHALL 

exertions to ward off solely the pressing danger, sup- 
plied 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 reelect 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 re- 
election, 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 com- 
pel the states to pay their quotas," answered Mar- 
shall. "Without this, Virginia will be unable to pay. 
Unless all the states pay, she cannot. . . . Economy 



THE SUPREME DEBATE 417 

and industry are essential to our happiness"; but 
the Confederation "takes away the incitements to 
industry, by rendering property insecure and un- 
protected." 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, repre- 
sentation 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 
Marshal], was the real check and control. "In this 
country, there is no exclusive personal stock of in- 
terest. The interest of the community is blended 
and inseparably connected with that of the indi- 
vidual. When he promotes his own, he promotes 
that of the community. When we consult the 
common good, we consult our own." In such con- 
siderations 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-adminis- 
tration? . . . We are threatened with the loss of our 
liberties by the possible abuse of power, notwith- 
standing the maxim that those who give may take 



jA 



418 JOHN MARSHALL 

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 neces- 
sary. . . . When experience shall show us any in- 
convenience, 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 



THE SUPREME DEBATE 419 

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." 1 

This address to the Virginia Convention is of his- 
toric interest as John Marshall's first recorded utter- 
ance on the Constitution of which he was to become 
the greatest interpreter. Also, it is the first report 

1 See entire speech in Elliott, iii, 223-36. 



420 JOHN MARSHALL 

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 se- 
quence 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 nota- 
ble as showing, in their infancy, those views of 
government which, in the shaggy strength of their 
maturity, were to be so influential on American des- 
tiny. 1 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 Mar- 
shall 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. 

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 

1 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. in of this work.) 



THE SUPREME DEBATE 421 

ribbon dangling from his full locks of snow, and his 
long black boots encroaching on his knees." * 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 influ- 
ence against the Constitution. For some reason he 
was laboring " under high excitement," and was al- 
most inaudible. He lauded the character of the Vir- 
ginia Legislature, of which he had been a member. 
The Constitution, insisted Harrison, "would operate 
an infringement of the rights and liberties of the 
people." 2 

George Nicholas answered at length and with 
characteristic ability and learning. 3 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 al- 
ready had delivered. 4 He went out of his way to 
praise Marshall, who, said Madison, had "entered 
into the subject with a great deal of ability." 5 

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 Phila- 
delphia 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 

1 Grigsby, i, 183-85. 2 Elliott, iii, 236. * 76., 236-47. 

4 /6., 247-62. 6 lb., 254. 



422 JOHN MARSHALL 

Mason, would be in Congress from Virginia? Most 
of them would be "chosen . . . from the higher or- 
der 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 scath- 
ing "cat and Tory" comparison. He knew those 
who were for the Constitution, "their connections, 
their conduct, their political principles, and a num- 
ber 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 trans- 
formed 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." * 

1 This caustic reference was to the members of the Convention who 



THE SUPREME DEBATE 42S 

Mason denounced Randolph for the latter's apos« 
tasy. "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 pre- 
vious amendments, "we never can accede to it. 
Our duty to God and to our posterity forbids it," 1 
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 sound- 
est 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 cour- 
teous debate. 2 

The Anti-Constitutionalists were now bringing 
all their guns into action. The second Revolution- 
ary soldier to speak for the opposition now arose. 
William Grayson was almost as attractive a military 

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. 
1 Elliott, iii, 262-72. 2 lb., 272-73. 



424 JOHN MARSHALL 

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. 1 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 pronun- 
ciation, Grayson, sotto voce, would correct theme 
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 unfor- 
tunate "that they did not do more for the general 
good of America"; but "I do not criminate or sus- 
pect the principles on which they acted." Of course, 
the Confederation had defects; but these were "in- 
separable from the nature of such [Republican] 

1 Grigsby, i, 194-205. William Grayson was one of the strongest 
men in Virginia. He became Virginia's first Senator under the Con- 
stitution. (See infra, vol. n, chap, n.) 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 neg- 
lected pages. William Grayson's talents, work, and vanished fame 
remind one of the fine ability, and all but forgotten career of Sir 
James Mackintosh. 



THE SUPREME DEBATE 425 

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 Con- 
vention. Such loans were habitually delayed, — for 
instance, "the money w^hich the Dutch borrowed 
of Henry IV is not yet paid"; these same Dutch 
"passed Queen Elizabeth's loan at a very consider- 
able 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 Ran- 
dolph, "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 w T ith 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 



426 JOHN MARSHALL 

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 sec- 
ond 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 pur- 
sue 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." * 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 impres- 

1 Elliott, iii, 279. 



THE SUPREME DEBATE 427 

sion as the day grew to a close, for Monroe, sec- 
onded by Henry, moved that the Convention ad- 
journ that Grayson might go on next day; and Mad- 
ison, plainly nervous, "insisted on going through the 
business regularly, according to the resolution of the 
house." Grayson consumed most of the next fore- 
noon, displaying great learning, but sometimes draw- 
ing 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 Colum- 
bia] and those places of arms which may be pur- 
chased 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 wmich 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." 1 

Pendleton answered. Henry's treatment of Ran- 
dolph's unhappy reference to the people as a "herd" 
seems to have had some effect; for Pendleton re- 
gretted 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 mid- 
dling and lower classes of men, I profess to be a 
1 Elliott, iii, 273-93 (especial passage, 280). 



428 JOHN MARSHALL 

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 Con- 
stitutionalists knew no distinction among men ex- 
cept that of good and bad men. Why did the opposi- 
tion 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 govern- 
ment 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. 1 

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 Con- 
stitution 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, "thou- 
sands and thousands of contracts, whereof equity 
1 Elliott, iii, 293-305. 



THE SUPREME DEBATE 429 

forbids an exact literal performance. . . . Pass that 
government [the Constitution] and you will be bound 
hand and foot. . . . An immense quantity of depre- 
ciated 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 fed- 
eral 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 North- 
ern 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." 1 

Referring to Pendleton's assertion that the State 
Court had declared void legislative acts which 
violated the State Constitution, Henry exclaimed: 

1 Elliott, iii, 319-22; and see chap, n, vol. n, 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 endan- 
gered by a strong National Government. 



430 JOHN MARSHALL 

"Yes, sir, our judges opposed the acts of the legis- 
ature. We have this landmark to guide us. They 
had the fortitude to declare that they were the judi- 
ciary 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." l 

As usual, Henry ended with a fearsome picture 
and prophecy, this time of the danger to and destruc- 
tion of Southern interests at the hands of the North- 
ern 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. 2 Mad- 
ison replied — the first spontaneous part he had 
taken in the debate. 3 

The next morning the opposition centered their 
fire on the Mississippi question. Henry again de- 
manded that the members of the Convention who 
had been in Congress should tell what had been 
done. 4 The members of Congress — Lee, Monroe, 

1 Elliott, iii, 325. At this time the fears of the Anti-Constitutional- 
ists 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. in of this work.) 

2 lb., 313-28. 8 lb., 328-32. 4 lb., 332-33. 



THE SUPREME DEBATE 431 

Grayson, and Madison — then gave their versions 
of the Jay-Gardoqui transaction. 1 

The Constitutionalists rightly felt that "the whole 
scene has been conjured by Henry to affect the ruin 
of the new Constitution," 2 and that seasoned gladi- 
ator 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 Missis- 
sippi covered with ships laden with foreign and 
domestic wealth" — a vision of a splendid West 
"the strength, the pride, and the flower of the Con- 
federacy." And then quickly succeeded on the screen 
the picture of the deserted settlers, the West a wil- 
derness, 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." 3 

At last the Constitutionalists were stunned. For 
a while no one spoke. Pendleton, "his right hand 

1 Elliott, iii, 333-51. 2 Grigsby, i, 230 and 243. 

3 lb., 245; Elliott, iii, 251-56. This, the real vote-getting part of 
Henry's speech, is not reported by Robertson. 



432 JOHN MARSHALL 

grasping his crutch, sat silent and amazed." * Nich- 
olas, 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." 2 

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. 3 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 dele- 
gates voted against ratifying the Constitution. 

That night Pendleton fell ill and John Tyler, "one 
of the staunchest opponents of the new Constitu- 
tion," was elected Vice-President. 4 The Mississippi 
question was dropped for the moment; the Consti- 
tutionalists 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 Govern- 

1 Grigsby, i, 245. 2 Elliott, iii, 356. 

8 76., 361-65. 4 Grigsby, i, 248. 



THE SUPREME DEBATE 433 

merit 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." * 

The second week's debate closed with the ad- 
vantage 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 Constitu- 
tionalists, 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-Constitu- 
tionalists had been making headway, not only 
through Henry's tremendous oratory, but also by 
other means; and the Constitutionalists acknowl- 
edged 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 con- 
trary 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 Argu- 
ment is so strong on the Side of Truth as wholly to 
destroy even on weak Minds the Effects of his Elo- 
quence But there are as you well know certain dark 
Modes of operating on the Minds of Members which 

1 Elliott, iii, 366-410. 



434 JOHN MARSHALL 

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." * 

"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." 2 

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 defi- 
ance of great exertions a majority, but very small 
indeed. A correspondence has certainly been opened 
thro a Mr. 0,[swald] of Philad? from the Malcon- 
tents of B. & N. Y. to us — it has its operation, but 
I believe we are still safe, unless the question of ad- 
journment should be introduced, & love of home may 

1 Gouverneur Morris from Richmond to Hamilton in New York, 
June 13, 1788; Hamilton MSS., Lib. Cong. 

2 Madison to Hamilton, June 16, 1788; Hamilton MSS., Lib. 
Cong, 



THE SUPREME DEBATE 435 

induce some of our friends to abandon their princi- 
ples." 1 

"The business is in the most ticklish state that 
can be imagined," Madison informed Washington; 
"the majority will certainly be very small on what- 
ever side it may finally lie; and I dare not encourage 
much expectation that it will be on the favorable 
side. Oswald of Philad? has been here with letters 
for the anti-Federal leaders from N. York and prob- 
ably Philad^ He Staid a very short time here during 

which he was occasionally closeted with H y 

M— s— n&c." 2 

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 wel- 
fare 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." 3 Madison followed, 4 and 
Mason, Corbin, and Grayson also spoke, 5 the latter 
asserting that, under the Constitution, the States 
could not "command the militia" unless by im- 
plication. 

1 Lee to Hamilton; Hamilton MSS., Lib. Cong. The first para- 
graph 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." (lb.) 

2 Madison to Washington, June 13, 1788; Writings: Hunt, v, 179 
and footnote. 

8 Elliott, iii, 410-12. 4 lb., 412-15. 5 lb., 415-18* 



436 JOHN MARSHALL 

Here Marshall again took part in the debate. 1 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 Constitu- 
tion, State and National Governments "each de- 
rived 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 Con- 
stitution] 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 un- 
fit to be trusted." Grayson interrupted Marshall in 
an unsuccessful attempt to squirm out of the posi- 

1 Elliott, iii, 419-20. 



THE SUPREME DEBATE 437 

tion in which the latter had placed him. He had 
only said that in its military features the Constitu- 
tion "was so constructed as to form a great aristo- 
cratic 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 depend- 
ing 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 govern- 
ment 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 



438 JOHN MARSHALL 

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 Con- 
gress neglect our militia, we can arm them our- 
selves. Cannot Virginia import arms . . . [and] put 
them into the hands of her militia men?" Marshall 
summed up with the statement that the States de- 
rived no powers from the Constitution "but re- 
tained them, though not acknowledged in any part 
of it." 1 

Marshall's speech must have been better than any- 
thing indicated in the stenographer's report; for the 
resourceful Grayson was moved to answer it at once 2 
and even Henry felt called upon to reply to it. 3 
Henry was very fond of Marshall; and this affection 
of the mature statesman for the rising young law- 
yer saved the latter in a furious political contest 
ten years afterwards. 4 The debate was continued 
by Madison, Mason, Nicholas, Lee, Pendleton, and 
finally ended in a desultory conversation, 5 but noth- 
ing 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. 

1 Elliott, iii, 419-21. 2 lb., 421-22. c lb., 422-24. 

4 Henry turned the tide in Marshall's favor in the latter's hard 
fight for Congress in 1798. (Infra, vol. n, chap, x.) 
6 Elliott, iii, 434. 



THE SUPREME DEBATE 439 

"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." * 

The debate then turned upon amending the Con- 
stitution by a Bill of Rights, the Constitutionalists 
asserting that such an amendment was not neces- 
sary, and the opposition that it was absolutely essen- 

1 Elliott, iii, 431. Throughout the entire debate Henry of ten 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 impor- 
tant 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. 



440 JOHN MARSHALL 

tial. 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 prac- 
tice 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." x 

The slavery question next got attention, Mason. 
Madison, Tyler, Henry, and Nicholas continuing the 
discussion. 2 Under the first clause of the tenth sec- 
tion of article one, Henry again brought up the pay- 
ment of the Continental debt. "He asked gentle- 
men 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; there- 
fore, said he, it is "immaterial who holds those great 
quantities of paper money, ... or at what value 

1 Elliott, iii, 447-49. 8 Ib. y 452-57. 



THE SUPREME DEBATE 441 

they acquired it." * To this extent only was the 
point raised which became most vital when the 
National Government was established and under 
way. 2 

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 shil- 
ling." 3 Then Henry brought up the scarecrow of the 
British debts, which had more to do with the opposi- 
tion to the Constitution in Virginia 4 than any other 
specific subject, excepting, perhaps, the threatened 
loss of the Mississippi and the supreme objection 

1 Elliott, iii, 473. 

2 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 Gov- 
ernment, received far more attention than did the economic problem. 

3 Elliott, 472-74. And see vol. n, chap, n, of this work. 

4 "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.) 



442 JOHN MARSHALL 

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 Con- 
stitution 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 repub- 
licanism," according to Mason. 1 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. 2 

The treaty-making power, the command of the 
army, the method of electing the President, the 
failure of the Constitution to provide for his rota- 
tion in office, all were, to the alarmed Anti-Consti- 
tutionalists, the chains and shackles of certain and 
inevitable despotism. The simple fears of the un- 
lettered men who sullenly had fought the Consti- 
tution in the Massachusetts Convention were stated 
and urged throughout the great debate in Virginia 
by some of her ablest and most learned sons. Madi- 
son 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 

1 Elliott, iii, 484. * lb., 491. 



THE SUPREME DEBATE 443 

observe, is confidential." But this was cold comfort, 
for, he added, "our affairs . . . are in the most tick- 
lish 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." l 

1 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 thir- 
teen, 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 w T as given the place of chief combatant. 
The opposition felt that again they might influence 
one or two delegates by mere debate, and they pre- 
pared to attack with all their might. "Tomorrow 
the Judiciary comes on when we [Anti-Constitution- 
alists] 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. 1 

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 w^ould be negotiated gov- 
erning the British obligations more specifically, if 

1 Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. 



THE STRATEGY OF VICTORY 445 

the Constitution were adopted; the fact that such 
a treaty and all other National laws would be en- 
forced 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. 1 

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. 2 

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. 3 Mason tried his best to 

1 Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787; 
Collins MSS., Lib. Cong. 

2 See Grigsby, i, 278-79, for an able and sympathetic account from 
the point of view of the settler and debtor. 

3 /6., 280-84; Elliott, hi, 517-21. 



446 JOHN MARSHALL 

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 Con- 
stitutionalists; 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 imper- 
ceptibly 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 Madi- 
son, personally, and admitted that "neither did I 
ever hear any of the delegates from this state advo- 
cate it." Thus did the extreme courtesy of the Vir- 
ginia debate cause the opposition to yield one of its 
most effective weapons. 1 

1 Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the popu- 
lar feeling against a strong National Government that, if the Anti- 
Constitutionalists had concentrated their attack upon this secret pur- 
pose of the leading Constitutionalists to make it such by easy stages, 



THE STRATEGY OF VICTORY 447 

But Mason made the most out of the Constitu- 
tion'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?" * 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 Con- 
stitution, asked Mason. And even if a jury be pos- 
sible 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 except- 
ing 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. ..." 

it is more than probable that the Constitution would have been de- 
feated. 

1 Elliot^ iii, 524. 



448 JOHN MARSHALL 

"Lord Fairfax's title was clear and undisputed," 
he continued. The State had " taxed his lands as pri- 
vate 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 confisca- 
tion"; 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 Con- 
stitution] 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 in- 
terests of a considerable number of the people and to 
several members of the Convention. In this artful 
and somewhat demagogic argument he called atten- 
tion to the lands involved in other extensive land 
grants. As we have seen, John Marshall was then 
personally interested in the Fairfax title, 1 and he 
was soon to possess it; in after years, it was to de- 
velop one of the great legal contests of history; and 

1 His own and his father's lands in Fauquier County were derived 
through the Fairfax title. 



THE STRATEGY OF VICTORY 449 

the court over which Marshall was to preside was to 
settle it definitively. 

Although not a lawyer, 1 Madison now made an 
argument which was one of the distinguished intel- 
lectual performances of the Convention. But he did 
not comprehend the sweep of the National Judi- 
ciary's power. "It is not in the power of individ- 
uals," said Madison, "to call any state into court." 
It may be that this statement influenced John 
Marshall, who soon followed, to repeat it. 2 

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 state- 
ments 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 appella- 
tion of rebel. ... As this government [Constitution] 

1 Grigsby, i, 290. 

* Elliott, iii, 530-39. For Marshall's repetition see ib„ 551-62. 



450 JOHN MARSHALL 

stands, I despise and abhor it," cried the unrivaled 
orator of the people. 1 

Up now rose John Marshall, whom the Constitu- 
tionalist 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 Rich- 
mond 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 com- 
mon consent, he was the man for the hour and the 
work at hand. And Marshall had carefully prepared 
his speech. 2 

The Judiciary provided by the Constitution was, 
said Marshall "a great improvement on that system 
from which we are now departing. Here [in the Con- 
stitution] 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 so- 
ciety, 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 sup- 
porters, 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 

1 Elliott, iii, 539-46. * Grigsby, i, 297. 



THE STRATEGY OF VICTORY 451 

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 appoint- 
ment." * But, under the Constitution, are not Na- 
tional 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 

1 Virginia judges were, at this period, appointed by the General 
Assembly. (Constitution, 1776.) 



452 JOHN MARSHALL 

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 cen- 
tre 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 an- 
nounce from the Supreme Bench : — 

"If," he asserted, "they [Congress] were to make 
a law not warranted by any of the powers enumer- 
ated, 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 de- 
clare 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 cogni- 
zance," expounded the nascent jurist. "Are not con- 
troversies respecting lands claimed under the grants 
of different states the only controversies between 



THE STRATEGY OF VICTORY 453 

citizens of the same state which the Federal Judi- 
ciary 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 numer- 
ous 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. 1 If some of these suits be carried to 
other courts, w T ill it be wrong? They will still have 
business enough." 

How vain and fanciful, argued Marshall, the con- 
tention that National judges would screen "officers 
of the [National] government from merited punish- 
ment." Does anybody really believe that "the Fed- 
eral 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 author- 
izing "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 Con- 

1 "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 Execu- 
tors [executions] that would issue . . . would be too heavy for our gov- 
ernment to bear and that such a rapid transfer of Property would alto- 
gether stop the movement of our Machine." (Logan and Story, to 
Stephen Collins, Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.) 



454 JOHN MARSHALL 

stitution] between . . . chancery, admiralty and the 
common law" as the Anti-Constitutionalists in- 
sisted 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 im- 
pressed 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 be- 
tween a state and the citizens of another state" Mar- 
shall 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 



THE STRATEGY OF VICTORY 455 

this — "if an individual cannot . . . obtain judg- 
ment 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 Legis- 
lature for relief. 

The objection to suits in the National Courts be- 
tween 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 be- 
cause 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 con- 
tract was made. According to those laws, and those 
only, can it be decided." That was no "novelty," 
but "a principle" long recognized in the jurispru- 
dence of Virginia. " The laws which governed the con- 
tract at its formation, govern it in its decision." Na- 
tional Courts, in such controversies, would "preserve 
the peace of the Union," because if courts of different 
States should not give justice between citizens of 



456 JOHN MARSHALL 

those States, the result would be "disputes between 
the states." Also the jurisdiction of National 
Courts in "controversies between a state and a for- 
eign state . . . will be the means of preventing dis- 
putes 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 mat- 
ters of fact? What is the object of a jury trial? To 
inform the court of the facts." If " a court has cogni- 
zance 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 Na- 
tional 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 govern- 
ment whether this man or that man succeeds? It is 
all one thing." 

As to jury trial not being guaranteed by the 



THE STRATEGY OF VICTORY 457 

National Constitution in civil cases, neither did Vir- 
ginia's Constitution, said Marshall, "direct trials 
by jury"; and the provision was "merely recom- 
mendatory" 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 de- 
fault ? " Or " when a motion is made by the Common- 
wealth 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? * 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 "acknowl- 

1 This form of argument by asking questions to which the answers 
must needs be favorable to his contention was peculiarly character- 
istic of Marshall. 



458 JOHN MARSHALL 

edged that there was no complete title * [in Fair- 
fax]. . . . 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 men- 
tioned [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." 2 So the 
"poor man" who was "unjustly prosecuted" would 
"be abundantly protected and satisfied by the 
temper of his neighbors." 3 

1 The reporter makes Mason assert the reverse. 

2 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. 

3 See Marshall's argument in Hite vs. Fairfax, chap, v, supra; and 
see vol. in 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 di- 
rected all quitrents, thereafter becoming due, to be paid into the pub- 
lic treasury; so that, with respect to his descendants, this act con- 



THE STRATEGY OF VICTORY 459 

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 opin- 
ions was, declared Marshall, groundless and absurd; 
for, "the good opinion of the people at large must be 
consulted by their representatives — otherwise mis- 
chiefs 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 an- 
other? "What will he gain by an unjust demand? 

fiseated 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 confis- 
cated this property. It is repugnant to no part of the treaty, with 
respect to the quitrents confiscated by the act of 1782." So, con- 
tinued 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, hi, 574-75.) 



460 JOHN MAKSHALL 

Does a claim establish a right? He must bring his 
witnesses to prove his claim"; otherwise "the ex- 
penses 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 legis- 
lature have. Will a man on the eastern shore be 
sent to be tried in Kentucky, or a man from Ken- 
tucky be brought to the eastern shore to have his 
trial? A government, by doing this, would destroy 
itself." 1 

This, in effect, was John Marshall's exposition of 
the second section of article three of the Constitu- 
tion. 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 Mar- 
shall's peculiar excellence. Like his first debate in 
the Convention, his speech on the Judiciary is dis- 
jointed. A subject is half treated in one part of his 
remarks and resumed in another. 2 But he makes his 

1 Elliott, iii, 551-62. 

2 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 distract- 
ing fashion. 



THE STRATEGY OF VICTORY 461 

principal points with clearness and power. His argu- 
ment is based on the independence of the courts as 
the best guaranty against unjust decisions; the re- 
sponsibility 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 un- 
certainty in the case; and the more so as there is a 
possibility that our present strength may be mis- 
calculated." * 

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 cer- 
tain of the exact number of votes it had, though 
every member was observed with the politician's 

1 Madison to Hamilton, June 20, 1788; Hamilton MSS., Lib. Cong. 



462 JOHN MARSHALL 

anxiety and care. 1 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 Constitu- 
tion are most confident of superiority. ... It is not 
probable that many proselytes will be made on 
either side." 2 

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<? chuse to ground their vote ag s } the Consti- 
tution on other motives." 3 

The Anti-Constitutionalists were becoming des- 
perate. 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 Legisla- 
ture, scheduled to meet on the following Monday 
and known to be, in the main, opposed to the Con- 
stitution, should afford them relief. 

If these expedients should fail, there was open 
talk of secession. 4 The Constitutionalists arranged 
for the utmost dispatch and planned to "withhold, 
by a studied fairness in every step on the side of the 

1 The members of the Convention were carefully watched and each 
side made, every night, a minute estimate of its votes. 

2 Madison to his father, June 20, 1788; Writings: Hunt, v, foot- 
note to 216. 

3 Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong 
« lb. 



THE STRATEGY OF VICTORY 463 

Constitution, every pretext for rash experiments." 
They hoped to avoid previous amendment by pro- 
posing "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 gen- 
eral 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 casu- 
alties . . . may vary the result." They were exceed- 
ingly alarmed over the coming to town of the mem- 
bers 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." x 

From the adjournment on Saturday until the 
Convention again assembled on the following Mon- 
day, June 23, the opposition decided that something 
more must be done to counteract Marshall's exposi- 
tion of the Judiciary article. For this purpose their 
leader and strongest men took the floor. The short- 
hand reporter was not present on this day, but the 
printer of the debates took notes. 2 

Nothing so well shows the esteem in which Mar- 
shall's ability was held as Patrick Henry's compli- 

1 Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong. 

2 Elliott, iii, 576. 



464 JOHN MARSHALL 

ment to his young associate. "I have," said Henry, 
"the highest veneration and respect for the honor- 
able 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 em- 
pire 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 high- 
est 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 wlio . . . 
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 Brit- 
ish 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." 1 

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 

1 Elliott, iii, 577-80. 



THE STRATEGY OF VICTORY 465 

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. 1 

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." 2 

Nothing can be plainer than that this personal 
assault on Henry was prearranged ; for George Nich- 

1 Grigsby, i, 300. See Washington's letters to Stephen during the 
year of Marshall's birth, when Stephen, under Washington, was fight- 
ing 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.) 

2 Elliott, iii, 580. 



466 JOHN MARSHALL 

olas 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 gen- 
tlemen who have come by large possessions that it is 
not easy to account for." This was taken as a reflec- 
tion 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 con- 
versation 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 im- 
proper place" to make "personal insinuations, or to 
wound my private reputation. ... As to land mat- 
ters, 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. Nich- 
olas 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 



THE STRATEGY OF VICTORY 467 

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"; Nich- 
olas had not, however, explained this before because 
he felt that Henry had said some things that one gen- 
tleman 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. 1 

The debate now drew swiftly to a close. Excite- 
ment ran high. The Anti-Constitutionalists, tense 
and desperate, threatened forcible opposition to the 
proposed National Government if it should be es- 
tablished. 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 ques- 
tion 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 char- 
acter 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 

1 Elliott, iii, 581-82. 



468 JOHN MARSHALL 

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. 1 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; 2 and if the friends of the pro- 
posed 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 amend- 
ments 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 parliamen- 
tarians in the Convention, a stanch Constitution- 
alist, a veteran of the Revolution, and a popular 
man. 

1 Elliott, iii, 585-86. 

2 "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." (Madi- 
son to Washington, Nov. 5, 1788; Writings: Hunt, v, 302.) 



THE STRATEGY OF VICTORY 469 

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 agi- 
tated that at first he could not speak plainly. 1 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 Con- 
stitutionalists' resolution for ratification. 

In a towering rage, Henry rose for what, outside of 
the courtroom, was the last great speech of his life. 2 
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. 3 
The Constitutionalists admitted, said Henry, that 
the Constitution was "capitally defective"; yet they 
proposed to ratify it without first remedying its con- 
ceded 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 knowl- 
edge "nine tenths of the people" in " nineteen coun- 

1 Grigsby, i, 307. 

2 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 tre- 
mendous effect which those who heard Henry tell us these speeches had. 

3 Grigsby, i, 307-08. 



470 JOHN MARSHALL 

ties adjacent to each other" were against the pro* 
posed new National Government. The Constitution- 
alists' 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, pro- 
posing to refer them to the other States "for their 
consideration, previous to its [Constitution's] ratifica- 
tion." 1 Henry then turned upon the Constitutional- 
ists their own point by declaring that it was their 
plan of ratification without previous amendments 
which would endanger the Union. 2 Randolph fol- 
lowed briefly and Dawson at great length. Madison 
for the Constitutionalists, and Grayson for the op- 
position, exerted themselves to the utmost. Nature 
aided Henry when he closed the day in an appeal 
such as only the supremely gifted can make. 

"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 de- 
cision. When I see beyond the horizon that bounds 

1 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. 

* Elliott, iii, 587-96. 




PATRICK HENRY 



THE STRATEGY OF VICTORY 471 

human eyes, and look at the final consummation 
of all human things, and see those intelligent be- 
ings 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." * 

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 crash- 
ing 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. 2 As Henry closed, the tempest died away. 

The spectators returned, the members recovered 
their composure, and the session was resumed. 3 
Nicholas coldly moved that the question be put at 

1 Elliott, iii, 6%5. This extract is badly mangled. The reporter con- 
fesses that he could take only a little of Henry's peroration. Elliott's 
reprint of Robertson's reports gives scarcely a suggestion of its dra- 
matic appeal. We are indebted to Grigsby's patient work in col- 
lecting from eye and ear witnesses first-hand accounts, for a reason- 
ably accurate description of the scene. 

2 Grigsby, i, 316-17; also Wirt, 313; Henry, ii, 370-71; and Con- 
way, 113. 

• Grigsby, i, 316-17. 



472 JOHN MARSHALL 

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 in- 
clination vote against this Constitution." 

Anxious and prolonged were the conferences of the 
Constitutionalist managers that night. The Legis- 
lature 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 Con- 
stitutionalists 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. 1 

Into the hands of the burly Nicholas the Consti- 
tutionalists wisely gave command. The moment the 
Convention was called to order, the chair recog- 
nized Nicholas, who acted instantly with his charac- 
teristically icy and merciless decision. "The friends 
of the Constitution," said Nicholas, "wish to take 
up no more time, the matter being now fully dis- 
cussed. They are convinced that further time will 
answer no end but to serve the cause of those w T ho 
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 com- 
mittee in order to be recommended to Congress." 
1 Grigsby, i, 317. 



THE STRATEGY OF VICTORY 473 

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; 1 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. 2 

Tyler moved the reading of Henry's proposed 
amendments and Bill of Rights. Benjamin Harrison 
protested against the Constitutionalists' plan. He 
was for previous amendment, and thought Wythe's 
"measure of adoption to be unwarrantable, precipi- 
tate, and dangerously impolitic." Madison reas- 
sured those who were fearful that the Constitu- 
tionalists, if they won on ratification, would not 
further urge the amendments Wythe had offered; 
the Constitutionalists then closed, as they had be- 
gun, 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 Vir- 
ginia 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 

1 Very few of the Constitutionalists wanted any amendments; 
and Madison sorrowfully offered in Congress the following year 
those that were reluctantly adopted. See vol. n, chap, n, of this 
work. 

2 Elliott, iii, 627. 



474 JOHN MARSHALL 

chosen to utter their parting word. 1 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. 2 

Men who heard Innes testify that "he spoke like 
one inspired." 3 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. 4 

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 expecta- 
tion of seeing that government changed, so as to be 
compatible with the safety, liberty, and happiness, 
of the people." 

1 Grigsby, i, 323-29. * lb., 328. 

8 lb., 332. 4 Elliott, iii, 644-49. 



THE STRATEGY OF VICTORY 475 

Wythe's resolution of ratification now came to a 
vote. No more carefully worded paper for the pur- 
poses 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 re- 
lieve the apprehensions of those who may be solici- 
tous 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 per- 
suasion, now find it necessary to resort to the most 
delicate tact. 

The opposition moved to substitute for the rati- 
fication 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-Consti- 
tutionalists lost but one vote and the Constitution 
escaped defeat by a majority of only 10. 

To secure ratification, eight members of the Con- 
vention voted against the wishes of their constitu- 
ents, 1 and two ignored their instructions. 2 Grayson 
openly but respectfully stated on the floor that the 

1 Henry, ii, 377. "At least ten members voted, either in disobedi- 
ence of positive instructions of their constituents, or in defiance of 
their well known opinions." (Grigsby, i, 41.) 

2 Scott, 235-38. 



476 JOHN MARSHALL 

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." * Followers of their old com- 
mander as the members from the Valley were, the 
fear of the Indians had quite as much to do with get- 
ting their support for a stronger National Govern- 
ment as had the weight of Washington's influence. 2 

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 Con- 
stitution, but the ratification of it by eight States had 
now "reduced our deliberations to the single ques- 
tion of Union or no Union" 3 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 neces- 

1 Elliott, iii, 616. Madison frankly admitted that only the promi- 
nence of the f ramers 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 individ- 
ual," wrote Madison, " instead of a body possessing public respect and 
confidence, there cannot be a dcubt, 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.) 

2 Grigsby, i, footnote to 110. 
8 Elliott, iii, 652. 



THE STRATEGY OF VICTORY 477 

sary." l 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 Con- 
vention 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 un- 
der 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 ad- 
ministrative 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. 2 Yet only on such terms could 
ratification be secured even by the small and uncer- 
tain majority that finally voted for it. 

On June 25, Clinton's suppressed letter to Ran- 
dolph was laid before the House of Delegates which 

1 Elliott, iii, 653-63. 2 lb., 659-61. 



478 JOHN MARSHALL 

had just convened. 1 Mason was so furious that he 
drew up resolutions for an investigation of Ran- 
dolph's conduct. 2 But the deed was done, anger was 
unavailing, and the resolutions never were offered. 3 

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; 4 and the Con- 
stitution would have been a far different and in- 
finitely 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 Pat- 
rick 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 
6 'proper place"; the question was settled now and he 
advised his colleagues that "as true and faithful 
republicans, they had all better go home!" 5 Well 
might Washington write that only " conciliatory con- 

1 Clinton's letter was not read, however, because all the mem- 
bers of the Legislature had gone to hear Henry's last great speech. 
(Conway, 112.) 

2 Conway, 114; Henry, ii, 363. 

8 For Mason's resolutions and a careful review of the incident, see 
Rowland, ii, 274-80. 

4 Henry, ii, 377. 

5 Southern Literary Messenger, i, 332; also quoted in Rowland, 
ii, 274. 



THE STRATEGY OF VICTORY 479 

duct" got the Constitution through; * 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 situa- 
tion have been." 2 

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 man- 
agers 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 adop- 
tion 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 

1 Washington to Pinckney, June 28, 1788; Writings: Ford, xi, 285. 

2 Washington to Jefferson, Aug. 31. 1788; ib., 321. 



480 JOHN MARSHALL 

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 Revolu- 
tion 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. 



END OF VOLUME 1 



APPENDIX 



APPENDIX 



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 es- 
tate 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. 



484 APPENDIX 

T1 r 7 (At a Court held for the said County the 

Westmobld: as. j glgt day of May 17Q4 

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.] 



n 

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 here- 
after 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 Dan- 
niel 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 Like- 
wise 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 be- 
loved son Wm. Marshall one negro woman named Sail 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 Be- 



486 APPENDIX 

loved daughter Mary Marshall one negro girl named Cate 
and negro boy Gus to remain in possession of her mother un- 
til 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 here- 
unto set my hand and fixed my seal this first day of April 
One thousand seven hundred and fifty two. 
Interlined before assigned. 

Benjamin Rallins ") John Makshall (Seal) 

William Houston > 

Augustine Smith J 

yk 7 a { At a Court held for the said County the 

Westmorland Sct. j ^ day rf May 1?52 

This Last will and testament of John Marshall deed, was 
presented into Court by Eliza, his relict and Thomas Mar- 
shall two of his Executors therein named who made oath 
thereto and being proved by the oaths of Benja. Railings 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 Certifi- 
cate 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 Westmore- 
land County, State of Virginia, in Deeds and Wills, no. 11, at page 419 et seq.] 



Ill 

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 bar- 
gained & sold & doth hereby grant bargain & sell John Mar- 
shall 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. Genii. 
Court dated Septbr. ye 21st 1668 & by ye said Spencer as- 
sign'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. souther- 
most 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 



488 APPENDIX 

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 Mar- 
shall 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 

„ 7 ) At a Court held for the sd. County the 27th 

Westmorld. ss. J 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 tne 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* 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* 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 re- 
lieved by those of the continent rais'd in this State, by which 
time the 3 d Virginia Regim* was rais'd and your Memorialist 
immediately called on to take command in it. That in Aug 1 
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 Artil- 
lery 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 com- 
mand of his Regim* of Artillery, which command he rataind 
till the 26th of February 1781 at which time, the term of en- 
listment of most of the soldiers of the Regim 1 having expired, 
they were discharged and your Memorialist became a reduced 
officer. Your Memorialist conceived from the Laws existing 



490 APPENDIX 

at the time he entered 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* 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 com- 
mand fcr 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 there- 
fore 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. Makshall. 

A true copy 
H. R. McIlwaim, 

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.] 



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(Wood.) 



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v. 1 The life of John Marshall