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THE  LIFE  OF  JOHN  MARSHALL 

li&rarp  <£tutton 


IN  FOUR  VOLUMES 
VOLUME  I 


JOHN   MARSHALL  AT  43 
From  a  miniature  painted  in  Paris 


THE  LIFE 

OF 

JOHN  MARSHALL 

BY 

ALBERT  J.  BEVERIDGE 
VOLUME  I 

FRONTIERSMAN,   SOLDIER 
LAWMAKER 

1755-1788 


BOSTON   AND  NEW  YORK 
HOUGHTON  MIFFIJN  COMPANY 

Cambribge 


COPYRIGHT,  I9I6,  BY  ALBERT  J.  BEVERIDGE 
COPYRIGHT,  1919,  BY  HOUGHTON  MIFFLIN  COMPANY 

ALL  RIGHTS  RESERVED 


951488 


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.  WToodburn,  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. 
WTorthington  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 


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,  and  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  Brandy  wine  —  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  —  Duch6'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 ios 

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-Hfe": 
"  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  Marshall 
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  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  Bur  well,  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 

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  resumS  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  untrustworthiness  —  Their  violent  abuse  of  public  men  — 
Franklin's  denunciation  of  the  press:  he  advises  "the  liberty  of 
the  cudgel  "to  restrain  "the  liberty  of  the  press"  —  Jefferson's 
disgust  —  The   country    newspaper:   Freneau's    "The    Country 
Printer"  —  The  scantiness  of  education  —  Teachers  and  schools 

—  The  backwoodsmen  —  The  source  of  abnormal  American  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. 


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  hi  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 
"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-conf essed  ignorance 
and  incapacity  of  opposition:  Madison  writes  that  there  is  "  Scarcely 
a  man  of  respectability  among  them"  —  Then-  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.  IN  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 

eminent  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. 

XH.  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  aida 
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 

n.    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 

"THE  HOLLOW" 36 

The  Blue  Ridge  home  of  the  Marshall  family  where  John  Marshall 
lived  from  early  childhood  to  his  eighteenth  year.  The  house  is  situated 
on  a  farm  at  Markham,  Va.  From  a  photograph. 

OAK  HILL 56 

From  a  water-color  in  the  possession  of  Mr.  Thomas  Marshall  Smith, 
of  Baltimore.  The  small  house  at  the  rear  of  the  right  of  the  main  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  Marshall, 
son  of  the  Chief  Justice.  The  name  of  the  painter  is  unknown. 

OAK  HILL        .        .        .        , 64 

This  is  the  original  house,  built  in  1773  and  carefully  kept  in  repair. 
The  brick  pavement  is  a  modern  improvement.  From  a  photograph. 

FACSIMILE  OF  THE  LAST  PAGE  OF  A  LETTER  FROM 
JOHN  MARSHALL  TO  HIS  WIFE,  DESCRIBING 
THEIR  COURTSHIP 152 

This  letter  was  written  at  Washington,  February  23,  1824,  forty-one 
years  after  their  marriage.  No  part  of  it  has  ever  before  been  pub- 
lished. 


MARY  AMBLER  MARSHALL,   THE   WIFE  OF  JOHN 
MARSHALL 168 

A  crayon  drawing  from  the  original  painting  now  in  the  possession  of 
Mrs.  Carroll,  a  granddaughter  of  John  Marshall,  living  at  Leeds  Manor, 
Va.  This  is  the  only  painting  of  Mrs.  Marshall  in  existence  and  the 
.  name  of  the  artist  is  unknown. 


RICHMOND  IN  1800 184 

From  a  painting  in  the  rooms  of  the  Virginia  Historical  Society. 

FACSIMILE  OF  A  PAGE  OF  MARSHALL'S  ACCOUNT 
BOOK,  MAY,  1787 198 

In  this  book  Marshall  kept  his  accounts  of  receipts  and  expenses  for 
twelve  years  after  his  marriage  in  1783.  In  the  first  part  of  it  he  also 
recorded  his  notes  of  law  lectures  during  his  brief  attendance  at  William 
and  Mary  College.  The  original  volume  is  owned  by  Mrs.  John  K. 
Mason,  of  Richmond. 


ILLUSTRATIONS  xxiii 

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  hi  that  it  corrects  extravagant  errors  concerning  Marshall's 
resignation  from  the  Council  of  State  and  his  reelection  to  the  legis- 
lature. 

JOHN  MARSHALL 294 

From  a  profile  drawing  by  Charles  Balthazar  Julien  F£vre  de  Saint 
Memin,  in  the  possession  of  Miss  Emily  Harvey  of  Richmond,  Va.,  a 
granddaughter  of  John  Marshall.  Autograph  from  manuscript  collec- 
tion in  the  Library  of  the  Boston  Athenaeum. 

GEORGE  WYTHE 368 

From  an  engraving  by  J.  B.  Longacre  after  a  portrait  by  an  unknown 
painter  in  the  possession  of  the  Virginia  State  Library.  George  Wythe 
was  Professor  of  Law  at  William  and  Mary  College  during  Marshall's 
brief  attendance. 

JOHN  MARSHALL          .  420 

From  a  painting  by  J.  B.  Martin  in  the  Robe  Room  of  the  Supreme 
Court  of  the  United  States,  Washington,  D.C. 

PATRICK  HENRY 470 

From  a  copy  (in  the  possession  of  the  Westmoreland  Club,  of  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  hi  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."    (/&.,  186.) 


ANCESTRY  AND  ENVIRONMENT  3 

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."  l 

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.    (76.,  138.) 

4  "All  America  watched  his  [Braddock's]  advance."    (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!  1 

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. 

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

*  Braddock  had  five  horses  killed  under  him.    (/&.,  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.) 

«  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. 


5  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,8  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  unlocked  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.) 

8  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.) 

6  "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,  1755,1  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.  11. 

5  Humphrey  Marshall,  i,  344-45. 

8  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 1  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  ei  seq.;  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. 

1  Morse,  3;  and  Story,  in  Dulon,  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  county2  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  Jefferson4  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"!   (Ib.) 

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

8  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  Ib.  Seventy  years  later  La  Rochefoucauld  found  land  adjoining 
Norfolk  heavily  covered  with  valuable  timber,  close  to  the  water  and 
convenient  for  shipment,  worth  only  from  six  to  seven  dollars  an 
acre.  (La  Rochefoucauld,  iii,  25.)  Virginia  sold  excellent  public 
land  for  two  cents  an  acre  three  quarters  of  a  century  after  this  deed 
to  John  Marshall  "of  the  forest."  (Ambler,  44;  and  see  Turner, 
Wis.  Hist.  Soc.,  1908,  201.)  This  same  land  which  William  Marshall 
deeded  to  John  Marshall  nearly  two  hundred  years  ago  is  now  valued 
at  only  from  ten  to  twenty  dollars  an  acre.  (Letter  of  Albert  Stuart, 


ANCESTRY  AND  ENVIRONMENT         IS 

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"  l  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 
Gate"  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  hi  "The  Forest." 

8  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.) 

1  /&.,  421. 


14  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."  1 

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  William  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.) 

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."  (76.)  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,  marechal 
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;  16.  (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.  (/&.) 

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  hi  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. 

Paxton,  30. 

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

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

Data  furnished  by  Thomas  Marshall  Smith  of  Baltimore,  Md. 

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 —  such 
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.) 

8  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; 1  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,  587. 


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  hi  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.) 


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. 
(Fa.  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.) 

5  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."  l 

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  one*  of  cock-fighting,  gaming, 
and  drinking."  (Tucker,  i,  18;  and  see  La  Rochefoucauld,  iii,  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  Roy  all  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  martf 
cases  that  confirm  the  observation  of  Adams.) 

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


24  JOHN  MARSHALL 

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;6  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. 

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

8  76.,  323-30;  also  Fithian,  50  et  seq. 

4  Bruce:  7ns*.,  i,  331-42.  6  Ib.y  452-53. 

6  76.,  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 
Montlily,  Ixxxiv,  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.          *  See  catalogue  in  W.  and  M.  C.  Q.,  x  and  xi. 
8  See  catalogue  in  Appendix  A  to  Byrd's  Writings:  Bassett. 
4  See  catalogue  of  John  Adams's  Library,  in  the  Boston  Public 
Library. 

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


26  JOHN  MARSHALL 

mother  country. l  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  charge?  "v 
(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:  Moll  Flanders,  65  et  seq, 
On  transported  convicts  see  Amer.  Hist.  Rev.,  il  12  et  seq.    For 
summary  of  the  matter  see  Channing,  i,  210-14,  226-27. 

8  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.t 
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  then*  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    hi   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         31 

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  v        / 
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 

J<  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. 

1  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  Spots  wood'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  un violated  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. 

8  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."  (76.,  106;  and  see  infra,  chap,  vn.) 

«  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,  too9  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, 
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  (Fa.)  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 
jburney  must  have  been  strenuous  even  for  that  hardship -seasoned 
man. 

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


The  Hollow,'"  MarJcham,  Virginia 

John  Marshall's  boyhood  home. 


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  with  such 
materials;  for  to  lift  heavy  timbers  to  such  a  height 
required  great  effort.4  But  Thomas  Marshall's  social, 
religious,  and  political  status 6  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  tune,  had  only  one  story. 
6  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 1  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  Winchester  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,    y 
"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.,  iii,  166.) 

Most  of  the  settlers  on  the  frontier  and  near  frontier  did  not  use 
forks  or  tablecloths.  Washington  found  this  condition  in  the  house 
of  a  Justice  of  the  Peace.  "When  we  came  to  supper  there  was 
neither  a  Cloth  upon  ye  Table  nor  a  knife  to  eat  with;  but  as  good 
luck  would  have  it,  we  had  knives  of  our  [own]."  (Writings:  Ford,  i,  4.) 

Chastellux  testifies  that,  thirty  years  later,  the  frontier  settlers  were 
forced  to  make  almost  everything  they  used.  Thus,  as  population 
increased,  necessity  developed  men  of  many  trades  and  the  little 
communities  became  self-supporting.  (Chastellux,  226-27.) 

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  Crevecoeur,  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  (Fa.)  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,  I  j 
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  Hist.  Mag.,  iii,  166;  Howe,  263;  also,  Story,  in  Dillon,  iii,  334. 

2  Stoj-y,  in  Dillon,  iii,  331-32.  8  Ib. 
4  See  Binney,  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  1 
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."  1  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  vm. 

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. 

(I  3  Story  thinks  that  Thomas  Marshall,  at  this  time,  owned  Milton, 

/    /    Shakespeare,  and  Dryden.  (Dillon,  iii,  381.)  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.y  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  I 
"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     \ 
of  Eighteenth  Century  Literature,  131;  also,  Traill:  Social  England,      K 
v,  72;  Stephen:  Alexander  Pope,  62;  and  see  Cabot  to  Hamilton,      I  » 
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, l  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. 

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

8  Irving,  i,  37,  45;  and  Sparks,  10.  4  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. 

*  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. 
a  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.) 

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

8  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  fchis  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." 1  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.y  31-46;  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."  l 

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  posi« 
tion."   (Bruce:  Inst.,  i,  62;  and  see  Meade,  i,  191.) 

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


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  76. 

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.) 

"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  hinic 
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." 

8  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. 


66  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. 


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. 

4  76.,  161.  6  Ib. 


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 1 
from  1761  until  October,  1767,  when  he  became 
Sheriff  of  Fauquier  County.2  In  1769  he  was  again 
chosen  Burgess,3  and  reflected  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.    (Ib.  (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. 

•  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.  «  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. 

*  Wirt,  71  et  seq.  It  passed  the  House  (Journal,  H.B.  (1761-65),  350) ; 
but  was  disapproved  by  the  Council.  (/&.,  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.  *  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 
defeat5  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  76.,  67.  •  76.,  80-81.  «  76.,  82-86. 
8  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.) 

*  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." 

8  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. 


Oak  Hill 


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 

"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,  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. 

2  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,"  l  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.        *  Binney,  in  Dillon,  iii,  286.         «  76. 


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 
on  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  Ib.,  288. 

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


72  JOHN  MARSHALL 

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

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  Ib. 


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   p 
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  itselL-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. 

*  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  seat3  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-knife"  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.  IV. 

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. 

8  Slaughter,  107-08.  •  Ib.  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 
paths  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; l  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.  *  Ib. 

8  Campbell,  633-34;  Eckenrode:  R.  V.,  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."  l 

"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.,  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.) 

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

4  Washington  to  Reed,  Feb.  10,  1776;  ib.t  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"  1 
(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. 

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


82  JOHN  MAKSHALL 

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."  *  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,  Dec.  24,  1776;  ib.,  129-30. 
While  Washington  was  desperately  badly  off,  he  exaggerates  somewhat 
in  this  despondent  report,  as  Mr.  Ford's  footnote  (16.,  130)  shows. 

8  Washington  to  President  of  Congress,  Nov.  11,  1776;  ib.,  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."  1 

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. 

3  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."  1 

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]  evidence,  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."  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.) 

8  Kapp,  115.       *  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."  1 

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."  6 

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  Ib. 

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."1 
"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. 
6  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 

1777.1  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.,  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  76.   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  MAKSHALL 

[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.  8  Ib.,  Sept.  3,  1777,  30. 

8  76.,  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? 
A^hy  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  Chastellux  found  the  Pennsylvania  line  the 
best  equipped;    each  Pennsylvania  regiment   had  even  a  band  of 
music.   (Chastellux,  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.  a  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."  1 

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 ? 
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. 

8  Marshall  (1st  ed.),  iii,  126.  «  /&.,  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  Soldr.  shall  dare  to  quit  his  ranks 
He  shall  receive  39  Lashes  at  the  first  halting  place 
afterwards.  .  .  .  Not  a  Woman1  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 Cornwallis  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. 

8  Weedon,  Aug.  23,  1777,  19.  3  Marshall  (1st  ed.),  iii,  127. 

1  /&.,  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 

1  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.) 

8  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."  1 
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  76.  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.) 

8  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.  a  Marshall,  i,  157-58. 

8  76.;  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  Pour  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  (Isted.),  iii,141,  and  see  Washington  to  President  of 
Congress,  Sept.  23,  1777;  Writings:  Pord,  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  ammunition3  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.  8  Ib. 


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."   (76.,  footnote.) 

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

6  Marshall  repeatedly  expresses  this  thought  in  his  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."  1 
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.  «  76. 

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  morning4  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.  *  Ib. 

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

4  American  officer's  description  of  the  battle.   (76.,  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.  «  /&.,  168-69. 

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

4  /&.,  331-3*.  6  Ib. 


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.  «  /&.,  181.  «  /&.,  181-82. 


A  SOLDIER  OF  THE  REVOLUTION      105 

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

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. 

A  Clark's  Diary,  Proc.,  N.J.  Hist.  Soc.  (1st  Series),  vii,  102-08. 
"It  seems  that  the  enemy  had  waited  all  this  time  before  our  lines 
to  decoy  us  from  the  heights  we  possessed."  (76.) 

8  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  V 
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."  1 

''  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.  *  /&.,  280.  8  Ib. 

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.  *  76.,  278-80. 

3  76.,  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."  l  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.) 

8  "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.) 

<  Hist.  Mag.,  v,  170. 

6  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. 

•  "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."  l 
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,  |41.  a  Hist.  Mag.,  v,  131. 

8  Ib.  <  /&.,  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 
&  Water  till  their  glutted  Gutts  are  turned  to 
Pasteboard." 

He  admonishes:  "Ye  who  Eat  Pumpkin  Pie  and 
Roast  Turkies  —  and  yet  Curse  fortune  for  using 
you  ill  —  Curse  her  no  more  —  least  she  reduce 
you  ...  to  a  bit  of  Fire  Cake  &  a  Draught  of  Cold 
Water,  &  in  Cold  Weather."  1 

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."'  l 

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 

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

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

Trevelyan,  iv,  298.  6  Ib. 

Personal  narrative;  Shreve,  Mag.  Amer.  Hist.,  Sept.,  1897,  568. 

Trevelyan,  iv,  298. 


VALLEY  FORGE  AND  AFTER  115 

must  dissolve;"  l  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.  «  Ib. 


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."  l 

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  then*  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."  2 

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"  1  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.) 

*  Slaughter,  107-08.  -    8  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  A     / 
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.  8  76. 

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

8  Weedon,  Feb.  8,  1778,  226-27.    Washington  took  the  severest 
measures  to  keep  officers  from  associating  with  private  soldiers. 
4  /&.,  227-28.  6  /&.,  Jan.  5,  1778;  180. 


VALLEY  FORGE  AND  AFTER 

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. 

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


JOHN  MARSHALL 

feat  while  Gates  had  gained  a  glorious  victory;  Gates 
was  the  man  for  the  hour  —  down,  then,  with  the 
incompetent  Virginian,  said  the  conspirators.  The 
Pennsylvania  Legislature,  wroth  that  Howe's  army 
had  not  been  beaten,  but  allowed  to  occupy  the  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. l 

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.          8  76.,  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." 1 

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. 

*  On  April  10,  1778,  JEdanus  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." l  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 

:fi  You  are  beseeched  most  earnestly,  my  dear  Col2 
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  Ib. 

8  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] 1  .  .  .  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  reflected.  "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."  ! 

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,  810, 
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  SchuylknTs  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.  n,  chap.  i. 

2  See  vol.  ii  of  this  work. 

3  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 
x  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."  l 

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." l 

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  16. 

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.6  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. 

*  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.) 

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

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

6  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,  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."  1 

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."  1 

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, 

^^  l  Lafayette  to  Marshall;  Marshall,  i,  footnote  to  255. 
*  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  tern-  / 
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. 

»  Marshall,  i,  251-56.  »  16.,  257.  «  Z&..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."  1  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  W^ayne,  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.) 

8  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  Gen1  McDougall  with  a  Promise  to  Replace  it.  I  owe  him 
Seventy  five  Gallons  —  must  therefore  desire  you  to  forward  three 
Hodds  [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,  20-81.) 
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*  ...  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."    (76., 
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  more  — 
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."  1  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  y  dear,  dear  Americans" 
and  not  a  man  was  injured  by  the  victors  after  he  ceased  to  resist. 
(Dawson,  53;  and  Marshall,  i,  311.) 

8  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.  «  76.,  314-16. 


VALLEY  FORGE  AND  AFTER  143 

tion  in  actual  warfare  ended.  He  was  sent  home 1 
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,  iii,  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. 

8  Tucker,  i,  136.  «  Marshall,  i,  418. 

1  76.,  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,  Ixxxiv,  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."   (76.)   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.) 

8  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. 

1  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."  1  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,  vin.) 
1  Marshall,  i,  355-65.  2  Ib.y  422-24.  »  76.,  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  uninstructedJbyj^xpe- 
rience."  1  Time  an.cTagain  Marshall  describes  the 
utter~abs£nce  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, 
Ixxxiv,  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  he  commanding  the  State  Artillery  in  Vir- 
ginia at  that  time,  but  on  March  28  he  executed  a  deed  in  Fauquier 
County,  Virginia,  and  in  June  he  was  assisting  the  Ambler  family  in 
removing  to  Richmond.  (See  infra.)  If  a  Thomas  Marshall  was 
captured  at  Charleston,  it  must  have  been  one  of  the  many  others 
of  that  name.  There  was  a  South  Carolina  officer  named  Thomas 
Marshall  and  it  is  probably  he  to  whom  Heitman  refers.  Heitman 
(ed.  1914),  381.  For  account  of  the  surrender  of  Charleston,  see 
McCrady,  iii,  507-09. 


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; l 
and  the  year  1780  found  the  Ambler  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- 

"  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,  Ixxxiv, 
545-47.) 

2  Ib.  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  Gary 
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  Gary  was  very  beautiful,  heiress  of  a  moderate  fortune,  and 
much  sought  after.  It  was  Mary  Gary's  sister  by  whom  Washington 
was  captivated.  (Colonel  Wilson  Miles  Gary,  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."  l 

"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,  Ixxxiv, 
547.    Of  the  letters  which  John  Marshall  wrote  home  while  in  the 
army,  not  one  has  been  preserved. 

2  Ib.  3  76. 


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,  Ixxxiv, 
547. 

2  Hist.  Mag.,  iii,  165.   While  this  article  is  erroneous  as  to  dates, 
it  is  otherwise  accurate.  8  Ib.,  167. 


V  y 

-**-^v*^/*- 

// 

ft/f^->V*7  **~t*-- 

^     ^*- 


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


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 M onthly,  Ixxxiv,  547. 
1  Hist.  Mag.,  iii,  167. 


154  JOHN  MARSHALL 

us  a  taste  for  books  which  probably  we  might  never 
otherwise  have  had."  1 

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,  Ixxxiv,  547. 

3  Supra,  chap.  n. 

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

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

6  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  1  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  4000wt  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.'*    (76.,  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  vm.)  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.  vii. 

8  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." l  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. 

8  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.  Wy the  &  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." Wythe  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  I.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  ye  3rd, 
1780,  Mr.  President  leaving  ye  chair  with  Mr. 
Fitzhugh  to  ye  same.  Mr.  Wm  Cabell  according  to 
order  delivered  his  declamation  on  ye  question 
given  out.  Mr.  Peyton  Short,  being  unprepared, 
was  silent  on  ye  occasion.  Mr.  Marshall,  a  gen- 
tleman not  immediately  interested,  argued  ye  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.,  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."  1 

Jacquelin  Ambler  had  been  made  Treasurer  of 
State,  and,  early  in  June,  1780,  the  family  removed 
from  Yorktown  to  Richmond,  stopping  for  a  day  or 
two  in  Williamsburg.  While  there  "a  ball  was  .  .  . 
given  ...  by  certain  gentlemen  in  compliment  .  .  . 
'to  the  Misses  Amblers."  Eliza  Ambler  describes 
the  incidents  of  this  social  event.  The  affair  was 
"simple  and  frugal  as  to  its  viands,"  she  writes, 
"but  of  the  brilliancy  of  the  company  too  much  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. 

8  Betsy  Ambler  to  Mildred  Smith,  1780;  Atlantic  Monthly,  Ixxxiv, 
536. 

1  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  hi  June,  1780;  for 
student  John  Brown's  letters  show  that  the  college  was  still  open  on 
July  20  of  that  year. 

8  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. 

8  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,  7£-80;  also  De  Warville,  433.) 

4  Horses  were  very  scarce  in  Virginia  at  this  tune.  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  We.  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  with  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. 

8  76. ,  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  1  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.) 

8  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.  Jacquelin  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  Jacquelin  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,  Ixxxiv, 
537. 


166  JOHN  MARSHALL 

a  little  stronger  proceeding  higher,  whilst  a  few  of 
the  stoutest  and  the  boldest  reached  the  summit."  1 
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,6  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,  Ixxxiv, 
537. 

a  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.) 

8  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  (16.,  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,  Ixxxiv, 
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,  Ixxxiv,  548. 

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;  l  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. 

8  Fauquier  County  Tithable  Book,  1783-84;  MS.,  Va.  St.  Lib. 

8  Ib.  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."  l 

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.  vin. 


Mary  Ambler  Marshall 


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,  ii,  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- 


170  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  hi  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.  HI 
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."  1  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,  Ixxxiv,  537. 

2  Mrs.  Carrington  to  Mildred  Smith,  Jan.  10,  1786;  MS. 
•  Mordecai,  45-47.  4  /&.,  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  76.,  51-52.  This  was  more  than  twenty  years  after  Marshall  and 
his  young  wife  started  housekeeping  in  Richmond. 

3  76.,  53.  «  76. 
6  Meade,  i,  140;  Schoepf,  ii,  62. 

6  Mordecai,  chap,  xxi ;  Schoepf,  ii,  63  et  seq. 
1  See  supra,  chaps,  i  and  vii. 


MARRIAGE  AND  LAW  BEGINNINGS    173 

gether  about  the  fire,  drinking,  smoking,  singing, 
and  talking  ribaldry."  1 

Such  were  conditions  in  the  town  of  Richmond 
when  John  Marshall  hazarded  his  adventure  into 
the  legal  profession  there  in  1783.  But  it  was  the 
seat  of  the  State  Government,  and  the  place  where 
the  General  Court  of  Appeals  and  the  High  Court 
of  Chancery  were  located.  Yet  small,  poor,  and 
mean  as  was  the  Virginia  Capital  of  that  day,  not 
even  Philadelphia,  New  York,  or  Boston  could 
boast  of  a  more  brilliant  bar. 

Randolph  and  Wickham,  Innes  and  Ronald, 
Campbell  and  Call,  and  others  whose  distinction  has 
made  the  bar  of  the  Old  Dominion  historic,  practiced 
at  Richmond.  And  the  court  around  which  this 
extraordinary  constellation  gathered  was  equally 
eminent.  Pendleton,  whose  intellect  and  industry 
more  than  supplied  early  defects  in  education,  was 
president  of  the  Court  of  Appeals;  Wythe  was  one 
of  the  judges  of  the  High  Court  of  Chancery,  of  which 
he  afterwards  became  sole  chancellor;  Paul  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 ; 
^3ail  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;  In  junction,  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,  "Rec1?  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/."  * 

The  cost  of  living  in  Richmond  at  the  close  of  the 
Revolution  is  shown  by  numerous  entries.  Thirty- 
six  bushels  of  oats  cost  Marshall  three  pounds,  ten 
shillings,  sixpence.  He  paid  one  pound  for  "one 
pair  stockings";  and  one  pound,  eighteen  shillings, 
sixpence  for  a  hat.  In  1783  a  tailor  charged  him 
one  pound,  eight  shillings,  sixpence  for  "making  a 
Coat."  He  enters  "stockings  for  P.[olly] 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.  (76.)  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;  %  pieces  of  bobbin  1/6;  Tea 
pot  3/;  Edging  3/6;  Sugar  pot  1/6;  Milk  I/;  Thim- 
ble 4/2;  Irons  9/,  .  .  .  Tea  20/."  l 

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  CoF  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) l  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/-1"; 
and  later,  "expenses  at  St.  John's  [church]  2-3" 
(pounds  and  shillings). 

Marshall  bought  several  slaves.  On  July  1,  1784, 
he  enters,  "Paid  for  Ben  90-4 "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  P<?  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  he  will  in  all  human  probability  be  rein- 
forced with  the  dignified  character  of  Legislator. 
Webb  has  returned  to  the  charge  &  the  many  think 
from  their  similitude  of  manners  &  appetites  that 
they  were  certainly  designed  for  each  other. 


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."  1 

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:  Adam* 
ii,  659.  Also  see  Mordecai,  94-95. 


Richmond  in  1800 


MARRIAGE  AND  LAW  BEGINNINGS     185 

<ind  "Blackstones  Commentaries  l  36/,"  and  May 
.10 ,  "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  "Works  of  C.  Churchill  — 
Poems  and  Sermons  on  Lord's  Prayer";  and  the 
"Letters  of  Lord  Chesterfield  to  his  son."  A  curious 
and  entertaining  book  was  a  condensed  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  o: 
^Eschines  and  Demosthenes  on  the  Crown."  1 

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  hi  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,  ftrmly  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,  vii;  also  chap,  n,  vol.  H,  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. 

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


188  JOHN  MARSHALL 

in  Richmond  two  negroes  (tithable),  two  horses,  an«l 
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. 

8  Eliza  Ambler  to  Mildred  Smith,  July  10, 1785;  MS.;  also  printed 
in  Atlantic  Monthly,  Ixxxiv,  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?!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,  "PfMr. 
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 

dolpli  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: 
;e  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. 

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


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  Kite  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.  *  Records  of  the  Court  of  Appeals. 


192  JOHN  MARSHALL 

seem  that  Joist  Kite'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.  n,  of  this  work. 

8  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:  — 

"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- 
fax9 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.'"  l 

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:  "Gen1'  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  Tents>  Fairfax  Ads 
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.  n,  chap.  iv. 

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

8  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,  "P"?  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  ll/  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  supra,  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."  1 

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. 


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   OP   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-yearly  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. 

2  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 

x  Schoepf,  ii,  55-56.         2  76.;  and  see  Journals.        3  76.,  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.  *  76.,  58. 

*  Story,  in  Dillon,  iii,  337.   Marshall  was  a  prime  favorite  of  his 
old  comrades  all  his  life.   (76.) 


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  8  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."  l 

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.6  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  /&.,  10. 

3  Ib.,  13-15.  4  76.,  15. 

6  Ib.,  22;  Hening,  xi,  111.  The  "ayes"  and  "noes"  were  taken  on 
this  bill  and  Marshall's  vote  is,  of  course,  without  any  importance 
except  that  it  was  his  first  and  that  it  was  a  little  straw  showing  his 
kindly  and  tolerant  disposition.  Also  the  fact  that  the  "ayes"  and 
"noes"  were  called  for  —  something  that  was  very  rarely  done  — 
shows  the  popular  Jeeling  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.   (/&.,  45.) 

2  76.,  23,  25,  27,  36,  42,  45.  3  76.,  23. 

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

"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  unpaired  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." 1  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. 

8  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."  (76.) 

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,"  8  writes  he,   "has  at 

Virginia's  delegates  in  Congress  to  convey  to  the  United  States  the 
Northwest  Territory  (16.,  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  hi  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. 

8  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 


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."  l 

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  esqr  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. 

a  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."  l 

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.6 

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. 

8  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.)  *  Ib. 


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 

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."  1 

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. 


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."  1 

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. 

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


FIRST  PAGE  OF  A  LETTER  FROM  MARSHALL  TO  JAMES  MONROE 


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  Ib.  3  Ib.  *  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  Williamson2  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,  vin  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 
Revolution.  (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  Ib.,  45.  For  thorough  examination  of  this  incident  see  Eckenrode: 
R.  V.,  chap.  xi. 

3  Journal,  H.D.  (Spring  Sess.,  1784),  57.  4  Ib.t  14. 


£16  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 

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.  *  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 
lays  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  hi  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.) 

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


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 

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.  *  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 
lays  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.) 

*  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."  1 

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  com  (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." 
W 

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

8  Marshall's  Account  Book  contains  entries  of  many  of  these  pay* 
ments. 
-  «  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  Ib.,  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."   (Ib.} 

4  Ib.,  ix,  389-99.  6  76.,  xi,  342-44. 

8  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.,  chap.  v. 

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


LEGISLATURE  AND  COUNCIL  OF  STATE 

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."    (76.,  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."   (/&.,  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.) 

8  Henry,  ii,  199-206.  4  Eckenrode:  S.  of  C.  and  S.,  77. 


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. 

8  Ib.,  82.  *  Ib.  5  Ib. 

6  Ib.,  97.  For  the  incorporation  law  see  Hening,  xi,  532-37;  for 
marriage  law  see  ib.,  532-35.  Madison  describes  this  law  to  Jefferson 
and  excuses  his  vote  for  it  by  saying  that  "the  necessity  of  some  sort 
of  incorporation  for  the  purpose  of  holding  &  managing  the  property 
of  the  Church  could  not  well  be  denied,  nor  a  more  harmless  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 

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"  1  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. 

8  "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.) 

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. 

2  76.,  54;  72-73.  The  Treaty  required  both. 


226  JOHN  MARSHALL 

prevented." 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. 

8  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 
Henry,  ii,  233. 

8  Ib. 


228  JOHN  MARSHALL 

it  as  a  measure  tending  to  weaken  the  federal  bands 
which  in  my  conception  are  too  weak  already.  We 
are  about,  tho  reluctantly,  to  correct  the  error." 

Marshall  despondently  summed  up  the  work  of 
the  session:  "We  have  as  yet  done  nothing  finally. 
Not  a  bill  of  public  importance,  in  which  an  indi- 
vidual was  not  particularly  interested,  has  passed."  1 

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;  i"6M 
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. 


LEGISLATURE  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  Ib.,  52. 

1  Ib.  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. 

4  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."  1  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. 

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

8  For  an  excellent  statement  regarding  payment  of  British  debts, 
see  letter  of  George  Mason  to  Patrick  Henry,  May  6, 1783,  as  quoted 


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, 
vn  and  vm. 


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.  *  /&.,  chap,  xxxi,  350. 

8  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  /&.,  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? 1 

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. 
*  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." 1  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  vm,  Constitution  of  Virginia,  1776. 

2  Madison  to  Jefferson,  Jan.  9, 1785;  Writings:  Hunt,  ii,  111. 
8  Ib.  <  Journal,  H.D.  (2d  Sess.,  1784),  34-41. 

6  "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  "liberty5* 

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.  (Ib.) 

This  amazing  bill  actually  passed  the  House  on  its  first  and  second 
reading  and  there  seems  to  be  no  doubt  that  it  would  have  become  a 
law  had  not  Henry  at  that  time  been  elected  Governor,  which  took 
him  "out  of  the  way,"  to  use  Madison's  curt  phrase.  John  Marshall 
favored  this  bill. 

1  Journal,  H.D.  (2d  Sess.,  1784),  41.  *  76. 


LEGISLATURE  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  1  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, 
*  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. 

a  Journal,  H.D.  (Oct.  Sess.,  1787),  7.  •  16.,  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 l  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  Packet,  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  1788.1  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  would  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,  xn;  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."  l  H 

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.  *  Ib. 

•  /&.,  95.  *  Ib.  (Dec.,  1787),  143, 177. 

5  Hening,  xii,  462-63. 


LEGISLATURE  AND  COUNCIL  OF  STATE    249 

tomahawk,  and  scalping-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  VH 

LIFE  OP  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.  *  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  /&.,  10&-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  Me  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. 

*  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."  6 

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. 
1  /&.,  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." 1  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.) 

8  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.) 

6  Cooper,  1875-86,  as  quoted  hi  Hart,  iii,  98.  8  76. 


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.6 

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,  384.) 

2  Hart,  iii,  116. 

3  Mag.  Western  Hist.,  i,  530. 

4  Justice  Gushing  to  Chief  Justice  Jay,  Oct.  23, 1792;  Jay:  Johnston, 
iii,  450. 

1  Memoirs  of  TaUeyrand:  Broglie's  ed.,  i,  176-77. 


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 

Washington  to  Jay,  Nov.  19,  1790;  Jay:  Johnston,  iii,  409. 

Jefferson  to  Washington,  March  27,  1791;  Car.  Rev.:  Sparks, 
iv,  366. 

Washington's  Diary:  Lossing,  Feb.  25,  1791. 

Washington  to  Jay,  Dec.  13,  1789;  Jay:  Johnston,  iii,  381. 

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 

3  Schoepf,  ii,  46.        4  /&.,  78.         6  Ib.,  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.      8  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."  6 

Journal,  H.D.  (1790),  13. 

Madison  to  Lee,  July  7,  1785;  Writings:  Hunt,  ii,  149-51. 
76. 

Boston  was  not  a  "city"  in  the  legal  interpretation  until  1822. 
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."  (76.  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  retracing  my  steps  in  the 
dark,  through  the  mazes  I  had  traversed,  I  felt  the  necessity  of  passing 
the  night  in  this  solitary  desert  ...  m  no  trifling  apprehension  of  fall- 
ing a  prey  to  wild  beasts  before  morning."   (76.) 

3  76. 

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."  l 

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."     (Daily'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  weeks  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. 

8  "Your  favor  of  July  6  having  been  addressd  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. 

5  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. 

8  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  Ib.,  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 
iri  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. 

*  Washington  to  Lafayette,  Feb.  7,  1788;  Writings:  Ford,  xi,  218. 

2  Kettell,  in  Eighty  Years1  Progress,  ii,  174. 

3  Pa.  Mag.  Hist,  and  Biog.,  ix,  444. 

*  *  Am.  Ant.  Soc.  Pubs.,  xxiii,  Part  ii,  254-330.        6  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."  1  "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,  xi, 
98-103. 

*  Washington  to  General  Knox,  Dec.  26,  1786;  ib.,  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  pressed 
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."  * 

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,  iii,  60.    Freneau  thus  describes 
the  country  editor  of  that  day:  — 

"Three  times  a  week,  by  nimble  geldings  drawn, 
A  stage  arrives;  but  scarcely  deigns  to  stop. 
Unless  the  driver,  far  in  liquor  gone, 
Has  made  some  business  for  the  black-smith -shop; 


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 l  (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  H'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  1780-87;  in  American  Journal 
of  Education,  xiii,  738. 

*  Van  Santvoord:  Memoirs  of  Eliphalet  Nott,  19.        8  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.  8  Chastellux,  319-20. 
4  De  Warville,  126-27.  6  /&.,  145  and  450. 

*  Ib.,  145.  All  travelers  agree  as  to  the  wretched  condition  of 
Rhode  Island;  and  that  State  appears  to  have  acted  as  badly  as  it 
looked.  "The  .  .  .  infamous  [scenes]  in  Rhode  Island  have  done  in- 
expressabk  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 

i  De  Warville,  132. 

«  Weld,  i,  113.  •  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," l  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. 

8  Knox  to  Washington,  Feb.  10,  1788;  Writings:  Ford,  xi,  footnote 
to  229.  And  see  infra,  chap.  vni. 


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  Ib.,  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.) 

8  Chastellux,  279,  and  translator's  note. 

4  Anburey,  ii,  331-32.  6  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."  *  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.6 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.  *  16.,  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.  •  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  then*  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." 1 

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." 

•  Weld,  i,  199. 

3  Schoepf,  ii,  34.   This  strange  phenomenon  was  witnessed  every- 
where, even  hi  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  76.,  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  76.,  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  /&.,  183-84. 

8  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. 1  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  thems  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."  (Ib.,  66.)  As 
to  New  England  country  stores,  "you  find  in  the  same  shop,  hats, 
nails,  liquors."  (76.,  127.) 

1  La  Rochefoucauld,  iv,  577. 

2  Washington  to  Green  (an  employee)  March  31,  1789;  Writings: 
Ford,  xi,  377. 

8  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.  *  Chastellux,  224;  see  also  243. 

'  La  Rochefoucauld,  iv,  119.          4  Ib.,  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."    (76.;  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. l  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,  iii,  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."  1  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."  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:  Con  way,  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  bear  it.  ...  These 
small  Politicians,  returned  home,  .  .  .  tell  their  Constituents  such  & 
such  measures  are  taking  place  altho'  I  did  my  utmost  to  prevent  it  — 
The  People  must  take  care  of  themselves  or  they  are  undone.  Stir  up 
a  County  Convention  and  by  Trumpeting  lies  from  Town  to  Town 
get  one  [a  convention]  collected  and  Consisting  of  Persons  of  small 
Abilities  —  of  little  or  no  property  —  embarrass'd  in  their  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  in/ra,  chaps,  xi  and  xii.) 


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. 

*  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 

JSdanus  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.) 

8  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,  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." 1  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. 

8  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.) 

5  "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."   (76.) 

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. 
*  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. 

6  "Enclosed  are  one  hundred  Dollars  of  new  Emmission  Money 
which  Col.  Steward  desires  me  to  have  exchanged  for  Specie.  Pray, 
inform  him  they  are  all  counterfeit."  (Gerry  to  King,  April  7,  1785; 
King,  i,  87.) 

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."  l 

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  erroneous3  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. 

*  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.  ni  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."  1  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  jnany  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. 

i  Marshall,  ii,  117.  *  Ib.t  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."  1 

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. 
*  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  Madison  to  Randolph,  Jan.  10,  1788;  Writings:  Hunt,  v,  81. 
9  Washington  to  Lee,  Oct.  31,  1786;  Writings:  Ford,  xi,  76-77. 
8  Washington  to  Madison,  Nov.  5,  1786;  ib.,  81. 
4  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."  1  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. 

*  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. 
1  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."  1  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  Virga,  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. 

8  "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  hi  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  gam  he  honestly  acquires.  .  .  .   The  mechanic  is 
exercised  in  his  art,  and  receives  the  reward  of  his  labour."  (1797-98; 
Ford:  P.  on  (7.,  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." 
(76.,  224.) 


ANTAGONISM  TO  GOVERNMENT       307 

a  popular  cast"; 1  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  Rutledge  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."  (76.) 

3  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.) 

'  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."  1  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. 

2  76.,  205. 

8  Washington  to  Harrison,  Jan.  18,  1784;  Writings:  Ford,  x,  345. 
4  76. 


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. 
a  Washington  to  Jay,  March  10,  1787;  Writings:  Ford,  xi,  125. 
1  See  supra,  chap.  vi. 


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."  l  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."   (76.) 

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       311 

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 
"  play  ing  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.  n, 
chaps,  n,  m,  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."  1 

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. 

*  Sam  Smith  in  London  to  Stephen  Collins  in  Philadelphia,  July 
21, 1788;  ib. 

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";  1  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";  * 
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  832; 
and  Jefferson  to  Wythe,  Sept.  16, 1787;  ib.,  340. 

4  Jefferson  to  Carrington,  Paris,  Aug.  4,  1787;  ib.,  318. 
8  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."  (76.) 

8  Jefferson  to  Hogendorp,  Oct.  13,  1785;  ib.,  iv,  469. 
«  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. 


318  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  struggle4  before  it 

1  Grigsby,  i,  25. 

a  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. 

•  Grigsby,  i,  27-28.  4  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. (Ib.,  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.) 

a  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  MAESHALL 

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."  l 

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. 
*  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."  1  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'tiat."  (Burgess,  i,  105.) 

Also  see  Beard:  Econ.  I.  C.,  217-18. 

*  Ford:  P.  on  C.,  14.  »  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. 

8  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  House  and  thrust  them  into  the 
Assembly  room  with  clothes  torn  and  faces  white 
with  rage."  And  there  the  objecting  members  were 
forcibly  kept  until  the  vote  was  taken.  Thus  was  the 
quorum  made  and  the  majority  of  the  Legislature 
enabled  to  "pass"  the  ordinance  for  calling  the  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  76.,  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  hi  the  people's  name.  "Not  one  in 
twenty  know  anything  about  it."  (Mr.  Whitehall  hi  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  work,  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."  1 

James  Wilson,  they  said,  had  been  all  but  mobbed 
by  the  patriots  during  the  Revolution;  he  never  had 
been  for  the  people,  but  always  "strongly  tainted 
with  the  spirit  of  high  aristocracy." 2  Yet  such  a  man, 
they  declared,  wras  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.  8  Ib.,  184-85. 

4  Pennsylvania  Debates,  in  McMaster  and  Stone,  231.  Elliott 
prints  only  a  small  part  of  these  debates. 

6  Ib.,  283-85.  «  Ib.,  219. 


330  JOHN  MARSHALL 

no  bill  of  rights"; l  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."  8 

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. 

8  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."  (76.,  352-64.) 

3  76.,  361-63.  4  76.,  365.  5  Ib. 

6  76.,  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." 

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  76.,  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. 

1  /&.,  424.  •  76.,  14-15.  «  Ib. 


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  l  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 " 
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. 
8  Ib.,  469-70.    .  8  lb.,  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." 5 

"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.y  6-7,  and  footnote.) 

•  "Letters  of  Centinel,"  no.  4, 16.,  606. 

4  /&.,  620.  •  /&.,  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.6  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. 

8  76.,  630,  637,  639,  642,  653,  655. 

8  Ib.,  629.          4  76.,  641.          6  76.,  631;  and  see  infra,  chap.  w. 

•  76.,  639.          7  76.,  658.         8  76.,  661.  •  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?  1  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.  *  /&.,  668. 

8  "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."  1 

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,"  *  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.) 

8  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  Ib.,  317.  8  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!"  l  King  Lovejoy  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."  6 
j  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. 

8  Lee  to  Thatcher,  Jan.  23,  1788;  ib.,  266-67. 

1  /&.,  267.  4  Ib. 

*  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  Mr.  S.  come  down  full  charged 
with  Gass  and  Stirred  up  a  2nd  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.,  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."  l 

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.   (Ib.,  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.  *  King  to  Madison,  Jan.  27,  1788;  King,  i,  317. 

8  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."  l 
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.  *  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."  l  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  ow 
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.  •  76.,  13&-37.  3  /&.,  16. 

4  76.,  111.  6  76.,  148.  «  76.,  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.   (76.,  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,  1788;  King,  i, 
319.  The  italics  are  those  of  King.) 

8  76.,  ii,  525.  »  Elliott,  ii,  178-81. 

4  Ib.,  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. 

8  Madison  to  Randolph,  April  10,  1788;  Writings:  Hunt,  v,  117. 

*  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."  l  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. 
*  Ib.  »  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  fixd  on  a  Slead, 
hald  by  13  Horses,  and  all  Orders  of  Men  Turnd 
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  marchd  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."  l 
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    353 

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."  1  , 

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  76.,  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."   (76.,  1.) 

s  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."  1 

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, 
hi  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.t  224-25.) 


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."  * 

When  the  New  Hampshire  Convention  assembled, 
66  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. 

8  Madison  to  Pendleton,  March  3,  1788  (Writings:  Hunt,  v,  110), 
and  to  Washington,  March  3,  1788  (ib.,  Ill);  and  to  Randolph; 
March  3,  1788  (#.,  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  Ib. 

8  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 

King  to  Langdon,  June  10,  1788;  King,  i,  331. 

Hamilton  to  Madison,  May  19, 1788;  Works:  Lodge,  ix,  430.  See 
also  ib.,  432. 

Knox  to  King,  June  19,  1788;  King,  i,  335. 

Hill  to  Thatcher,  Jan.  1,  1788;  Hist.  Mag.  (2d  Series),  vi,  261. 

King  to  Madison,  May  25,  1788;  King,  i,  329. 

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. 

1  Grigsby,  i,  8.  About  three  eighths  of  Virginia's  population  were 
slaves  valued  at  many  millions  of  dollars. 

3  Grigsby,  i,  footnote  to  50;  also  32;  and  see  examples  given  by 
Judge  Scott,  in  Scott,  235-38. 


360  JOHN  MAESHALL 

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  *eq.        »  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  Ib. 

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  hi  public  and  private  are  de- 
signed to  throw  me  unequivocally  and  without  condition,  into  the 
opposition."   (Randolph  to  Madison,  Feb.  29,  1788;  Con  way,  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."  1 

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  (ib.,  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.) 


364  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."  1 
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 

But  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."  8  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.,  225,  227,  231.) 

»  Ib. 


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. 
8  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. 

5  76.  "The  Baptist  interest .  .  .  are  highly  incensed  by  Henry's 
opinions  and  public  speeches."  (Randolph  to  Madison,  Feb.  29, 1788; 
Con  way,  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  23&-40. 
8  "Letters  of  a  Federal  Farmer,"  no.  3;  Ford:  P.  on  CM  301. 

4  16.,  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;  16.,  300. 

8  Madison  to  Jefferson,  April  22, 1788;  Writings:  Hunt,  v,  120-22. 
8  Grigsby,  i,  34-35;  and  footnote  to  49. 


868  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 ,  Wy the,  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 
opposition2  as  a  Constitutionalist  maneuver.3  Mar- 
shall was  appointed  a  member  of  the  committee4 
which  examined  the  returns  of  the  elections  of  mem- 
bers and  also  heard  several  contested  election  cases.6 

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. 

2  Rowland,  ii,  222. 

8  Henry,  ii,  345.  So  angered  were  the  Anti-Constitutionalists 
that  they  would  not  correct  or  revise  Robertson's  reports  of  their 
speeches.  (76.) 

4  Elliott,  iii,  1.      5  Ib.,  5-0;  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.  8  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. 


S72  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 1  —  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.  »  7&, 


374  JOHN  MARSHALL 

speech  was  decisive;  l  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.         *  /&.,  79.        *  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  EUiott,  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  author3 
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.  *  Grigsby,  i,  83-84. 

1  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";  l  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. 

*  Elliott,  iii,  23-29.    Randolph's  speech  was  apologetic  for  his 
change  of  heart.    He  was  not  "a  candidate  for  popularity":  he  had 
"satisfied  his  conscience,"  etc. 

•  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."  6 

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  Eland'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 


380  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,  vii.) 

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, 
863;  Rowland,  ii,  276-79;  and  see  infra,  chap.  xn. 


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." 

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.) 

1  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. 

Swrift  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  Grigsbj,  i,  99. 

8  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. 

8  Grigsby,  i,  footnote  to  46. 


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 


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. 

8  See  infra,  chap,  in;  also  Grigsby,  i,  105-06.  *  /&.,  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."  1 

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          391 

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."  1  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,  iii,  60.) 

2  Henry  had  not   heard   of  the  Constitutionalists'  bargain   with 
Hancock  in  Massachusetts. 

8  Elliott,  iii,  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,"  1  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  hi3 
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.,  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." 1 

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  76.,  114-28. 

1  Madison  was  equaled  only  by  Hamilton  in  sheer  intellectuality, 
but  he  was  inferior  to  that  colossus  in  courage  and  constructive  genius. 

4  76.,  128-37. 

8  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  MAESHALL 

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."  1 

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;  1  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 
writes  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."  1 

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  Phila  came  here  on  Sat- 
urday; and  he  has  closet  interviews  with  the  leaders 
of  the  opposition."  2  By  the  same  mail  Gray  son 
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.  But  they 
were  practical  enough  to  know  that  "there  are  seven 
or  eight  dubious  characters  whose  opinions  are  not 
known"  and  upon  whose  decisions  the  fate  of  the 
Constitution  "will  ultimately  depend."  Grayson 
cautions  Lamb  not  to  let  this  get  into  the  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. 
8  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  difficulty.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. 

8  Grigsby,  i,  149-50. 

8  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  saM  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,  855;  and  see  Monroe  to  Jefferson,  July  12, 1788;  Writings: 
Hamilton,  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."  (76.,  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 
cKit  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,  iii,  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.   (76.,  350.) 

8  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."  (76.,  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 

*  Grigsby,  i,  176. 

8  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. 

8  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," 1  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?  "  1  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,  "you  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 
Marshall,  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 


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.) 


John  Marshall 
From  a  painting  by  Martin  in  the  Robe  Room  of  the  U.  S.  Supreme  Court. 


THE  SUPREME  DEBATE  421 

ribbon  dangling  from  his  full  locks  of  snow,  and  his 
long  black  boots  encroaching  on  his  knees."  1  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.  *  Elliott,  iii,  236.  *  76.,  236-47. 

4  /£.,  247-62.  5  76.,  254. 


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  423 

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,"  l 
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, 
i  Elliott,  iii,  262-72.  2  /&.,  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  thenx 
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  which  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  with  mighty 
fleets,  and  to  attack  us  on  our  front;  the  Indians 
are  to  invade  us  with  numerous  armies  on  our 
rear,  in  order  to  convert  our  cleared  lands  into 


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."  1  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  which  they  will  pay  no  part  whatever." 
In  general,  Grayson's  conclusion  was  that  "we  have 
asked  for  bread  and  they  have  given  us  a  stone."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,  275-93  (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."  l 

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.  ii,  of  this  work.  Although 
this,  like  other  economic  phases  of  the  contest,  was  of  immediate, 
practical  and  serious  concern  to  the  people,  Henry  touched  upon  it 
only  twice  thereafter  and  each  time  but  briefly;  and  Mason  mentioned 
it  only  once.  This  fact  is  another  proof  of  the  small  place  which  this 
grave  part  of  the  economic  problem  occupied  in  the  minds  of  the  foes 
of  the  Constitution,  in  comparison  with  that  of  "liberty"  as  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."  1 

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  76.,  313-28.  •  76.,  328-32.  4  76.,  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. 

8  76.,  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."  1  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  /&.,  361-65.  4  Grigsby,  i,  248. 


THE  SUPREME  DEBATE  433 

ment  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."  l 

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  Mr.  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."  l 

"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.  O.[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  hi  my  right,  I  may 
not  in  personal  revenge."    (76.) 

2  Madison  to  Washington,  June  13,  1788;  Writings:  Hunt,  v,  179 
and  footnote. 

8  Elliott,  iii,  410-12.  4  76.,  412-15.  6  76.,  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."  l 

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.8 
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,6  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  76.,  421-22.  *  76.,  422-24. 

4  Henry  turned  the  tide  in  Marshall's  favor  in  the  latter's  hard 
fight  for  Congress  in  1798.  (Infra,  vol.  H,  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."  l 

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  often  sounded 
his  loudest  alarms  on  the  supreme  power  of  Congress  over  the  ten  miles 
square  where  the  National  Capital  was  to  be  located;  and,  indeed,  this 
seems  to  have  been  one  of  the  chief  sources  of  popular  apprehension. 
The  fact  that  the  people  at  large  looked  upon  the  proposed  National 
Government  as  something  foreign,  something  akin  to  the  British  rule 
which  had  been  overthrown,  stares  the  student  in  the  face  wherever  he 
turns  among  the  records  of  the  Constitutional  period.  It  is  so  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." 1 

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.  *  Ib.,  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  hi  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. 

8  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  MAESHALL 

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.  *  76.,  491. 


THE  SUPREME  DEBATE  443 

observe,  is  confidential."  But  this  was  cold  comfort, 
for,  he  added,  "OUT  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."  1 

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  was  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,"  Gray  son  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  would  be  negotiated  gov- 
erning the  British  obligations  more  specifically,  if 
1  Gray  son  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  /&.,  280-84;  Elliott,  iii,  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?"  1  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  Elliott,  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,  hi 
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." l  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,  will  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  I^>rd  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?  1  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  title1  [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. 

8  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? 

fiscated  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,  iii,  574-75.) 


460,  JOHN  MARSHALL 

Does  a  claim  establish  a  right?  He  must  bring  hif 
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  thaf 
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,  in,  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  agst."  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  ag8.1  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 

4  76. 


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."  l 

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. 
8  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  who  .  .  . 
by  being  made  drunk,  have  given  a  thousand,  nay 
I  might  say,  ten  thousand  acres,  for  the  trifling  sum 
of  sixpence ! "  And  what  of  those  who  owed  the  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."  l 

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.t  364-71;  in  which 
Colonel  Adam  Stephen  was  presiding  officer.) 

*  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. 

8  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 
2ed  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.'* l 

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,  625.   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  who 
wish  to  destroy  the  Constitution.  We  wish  it  to  be 
ratified  and  such  amendments  as  may  be  thought 
necessary  to  be  subsequently  considered  by  a  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; *  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. 

1  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.  •  76.,  328. 

8  76.,  332.  «  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."  1  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  /&.,  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 
"proper  place";  the  question  was  settled  now  and  he 
advised  his  colleagues  that  "as  true  and  faithful 
republicans,  they  had  all  better  go  home!"  6  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.) 

8  Conway,  114;  Henry,  ii,  363. 

1  For  Mason's  resolutions  and  a  careful  review  of  the  incident,  see 
Rowland,  ii,  274-80. 

4  Henry,  ii,  377. 

6  Southern  Literary  Messenger,  i,  332;  also  quoted  in  Rowland, 
ii,  274. 


THE  STRATEGY  OF  VICTORY          479 

duct"  got  the  Constitution  through; l  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;  16.,  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  OP   VOLUME  I 


APPENDIX 


APPENDIX 


WILL  OF  THOMAS   MARSHALL,   "CARPENTER'9 

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 

(  At  a  Court  held  for  the  said  County  the 
WESTMORLD:  ss. 


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.  Tester 

ALBERT  STUART,  Clark. 
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  aeq.] 


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  Gate 
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  'j  JOHN  MAKSHALL    (Seal) 

WILLIAM  HOUSTON   > 

AUGUSTINE  SMITH   ) 

TOT  c       (  At  a  Court  held  for  the  said  County  the 

WESTMORLAND  SCT.  j  26th  day  rf  May  ^ 

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  ) 

„,  )  At  a  Court  held  for  the  sd.  County  the  27th 

WESTMORLD.  ss. 


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  3d  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  3d  Virginia  Regim*  was  rais'd  and  your  Memorialist 
immediately  called  on  to  take  command  in  it.  That  in  Aug* 
1776  he  together  with  the  regiment  to  which  he  belonged  in 
obedience  to  the  orders  they  had  recd  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  Regim1  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  enter'd  into  the  particular  service  of  this  State 
and  from  the  different  acts  respecting  the  State  Troops  which 
have  since  passd  the  Legislature,  that  he  should  be  intitled 
to  every  emolument  to  which  he  would  have  had  a  just  claim 
had  he  remaind  in  the  Continental  Service.  If  however  only 
particular  discriptions  of  State  Officers  are  to  receive  such 
emoluments  as  Continental  are  intitled  to,  your  Memorialist 
humbly  presumes  to  hope  that  his  haveing  made  three  of  the 
severest  campaigns  in  the  last  war  before  he  took  command  of 
the  State  Regim*  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.  MARSHALL. 

A  true  copy 

H.  R.  MclLWAIN, 

State  Librarian. 

June  20,  1916. 

[Marshalls  Petn  Nov.  25th  1784  Referred  to  Propositions  Props,  discharged 
and  refd  to  whole  on  Bill  for  giving  Commutation  to  Officers  of  1st  and  2d 
State  Regiments.] 


WORKS  CITED  IN  THIS  VOLUME 


WORKS  CITED  IN  THIS  VOLUME 

The  material  given  in  parentheses  and  following  certain  titles  indicates  the  form 
in  which  those  titles  have  been  cited  in  the  footnotes. 

ADAMS,  CHARLES  FRANCIS,  editor.  See  Adams,  John.    Works. 

ADAMS,  HENRY.    The  Life  of  Albert  Gallatin.  Philadelphia. 
1879.    (Adams:  Gallatin.) 
See  also  Gallatin,  Albert.   Writings. 

ADAMS,  JOHN.  Works.  Edited  by  Charles  Francis  Adams. 
10  vols.  Boston.  1856.  (Works:  Adams.) 

Old  Family  Letters.  Copied  from  the  originals  for  Alex- 
ander Biddle.  Philadelphia.  1892.  (Old  Family  Letters.) 

ALLEN,  ETHAN.  Narrative  of  the  Capture  of  Ticonderoga,  and 
his  Captivity  in  England,  written  by  himself.  Burlington. 
1854.  (Ethan  Allen.) 

ALLEN,  GARDNER  WELD.  A  Naval  History  of  the  American 
Revolution.  2  vols.  New  York.  1913.  (Allen:  Naval 
History  of  Revolution.) 

Our  Navy  and  the  Barbary  Corsairs,  Boston.    1905. 

(Allen:  Our  Navy  and  the  Barbary  Corsairs.) 

AMBLER,  CHARLES  HENRY.  Sectionalism  in  Virginia,  from 
1776  to  1861.  Chicago.  1910.  (Ambler.) 

American  Historical  and  Literary  Curiosities.  See  Smith,  John 
Jay,  and  Watson,  John  Fanning,  joint  editors. 

American  Historical  Review.  Managing  editor,  J.  Franklin 
Jameson.  Vols.  1-21.  New  York.  1896-1916.  (Amer. 
Hist.  Rev.) 

American  Journal  of  Education.  Edited  by  Henry  Barnard. 
Vols.  1-30.  Hartford.  1856-80. 

American  Museum  or  Repository  of  Ancient  and  Modern 
Fugitive  Pieces,  Philadelphia.  1788.  (American  Mus- 
eum.) 

ANBUREY,  THOMAS.  Travels  through  the  Interior  Parts  of 
America,  in  a  Series  of  Letters,  by  An  Officer.  2  vols.  Lon- 
don. 1789.  (Anburey.) 

AVERY,  ELROY  MCKENDREE.  A  History  of  the  United  States 
and  its  people.  7  vols.  Cleveland.  1904-10.  (A very.) 


494      WORKS  CITED  IN  THIS  VOLUME 

BAILT,  FRANCIS.  Journal  of  a  Tour  in  Unsettled  Parts  of  North 

America,  in   1796  and  1797.    London.    1856.     (Baily's 

Journal.) 
BASSETT,  JOHN  SPENCER,  editor.  See  Byrd,  Colonel  William, 

of  Westover.   Writings. 
BAYARD,  JAMES  A.    Papers,  from  1796  to  1815.    Edited  by 

Elizabeth  Donnan.    Washington.    1915.     (Volume  2  of 

Annual  Report  of  the  American  Historical  Association  for 

1913.)   (Bayard  Papers:  Donnan.) 

BEARD,  CHARLES  A.  An  Economic  Interpretation  of  the  Con- 
stitution of  the  United  States.  New  York.  1913.   (Beard: 

Econ.  I.  C.) 
Economic    Origins    of  Jeffersonian    Democracy.    New 

York.   1915.   (Beard:  Econ.  0.  J.  D.) 
BELCHER,  ROBERT  HENRY.    The  First  American  Civil  War. 

2  vols.    London.   1911.   (Belcher.) 
BINNEY,  HORACE.   Eulogy  on  John  Marshall,  reprinted.   See 

Dillon,  John  F. 
BOLTON,   CHARLES   KNOWLES.    The  Private   Soldier  Under 

Washington.  New  York.   1902.   (Bolton.) 
BOUDINOT,  ELIAS.    Journal  of  Events  in  the  Revolution,  or 

Historical  Recollections  of  American  Events  during  the 

Revolutionary    War.    Philadelphia.    1894.    (Boudinot's 

Journal.) 
BRANCH,  JOHN  P.  Historical  Papers,  issued  by  the  Randolph- 

Macon    College,   Ashland,    Virginia.    Richmond.    1901. 

(Branch  Historical  Papers.) 
BRISSOT  DE  WARVILLE,  JEAN  PIERRE.    New  Travels  in  the 

United  States  of  America,  performed  in  1788.    Dublin. 

1792.   (De  Warville.) 

BROGLIE,  Due  DE,  editor.   See  Talleyrand,  Prince  de.  Memoirs. 
BRUCE,  PHILIP  ALEXANDER.  Economic  History  of  Virginia  in 

the   Seventeenth   Century.    2   vols.   New  York.     1896. 

(Bruce:  Econ.) 
Institutional  History  of  Virginia   in   the    Seventeenth 

Century.   2  vols.  New  York.      1910.   (Bruce:  Inst.) 
BURGESS,  JOHN  WILLIAM.  Political  Science  and  Comparative 

Constitutional  Law.  2  vols.  Boston.  1890. 
BURK,  JOHN  DALY.   The  History  of  Virginia,  from  its  First  Set- 
tlement to  the  Present  Day.    Continued  by  Skelton  Jones 

and  Louis  Hue  Girardin.    4  vols.  Richmond.    1804-16. 

(Burk.)  . 


WORKS  CITED  IN  THIS  VOLUME      495 

BURKE,  JOHN,  and  Sir  JOHN  BERNARD.  Peerages  of  England, 
Ireland,  and  Scotland,  Extinct,  Dormant,  and  in  Abey- 
ance. London.  1846.  (Burke :  Extinct  Peerages.) 

BURKE,  Sir  JOHN  BERNARD.  Dictionary  of  Peerage  and  Bar- 
onage. Edited  by  Ashworth  P.  Burke.  New  York.  1904. 
(Burke:  Peerage.) 

BURNABY,  ANDREW.  Travels  Through  North  America.  [Re- 
printed from  the  Third  Edition  of  1798.]  New  York.  1904. 
(Burnaby.) 

BUTLER,  MANN.  A  History  of  the  Commonwealth  of  Ken- 
tucky. Louisville.  1834.  (Butler -.History  of  Kentucky.) 

BYRD,  Colonel  WILLIAM,  of  Westover.  Writings.  Edited  by 
John  Spencer  Bassett.  New  York.  1901.  (Byrd's  Writ- 
ings: Bassett.) 

CABOT,  GEORGE.  See  Lodge,  Henry  Cabot.  Life  and  Letters 
of  George  Cabot. 

Calendar  of  Virginia  State  Papers  and  Other  Manuscripts. 
Preserved  in  the  Capitol  at  Richmond.  Vols.  1-11.  Rich- 
mond. 1875-1893.  (Col.  Fa.  St.  Prs.) 

CAMPBELL,  CHARLES.  History  of  the  Colony  and  Ancient 
Dominion  of  Virginia.  Philadelphia.  1860.  (Campbell.) 

CARLYLE,  THOMAS.  History  of  Friedrich  II  of  Prussia,  called 
Frederick  the  Great.  6  vols.  London.  1858-65.  (Carlyle: 
Frederick  the  Great.) 

CHALKLEY,  LYMAN.  Chronicles  of  the  Scotch-Irish  Settlement 
in  Virginia,  Extracted  from  the  Original  Court  Records 
of  Augusta  County  [Virginia],  1745-1800.  3  vols.  Ross- 
lyn,  Virginia.  1912-13.  (Chalkley's  Augusta  County  (Fa.) 
Records.) 

CHANNING,  EDWARD.  A  History  of  the  United  States.  [Vols. 
1-3.]  New  York.  1912-16.  (Channing.) 

CHASTELLUX,  Marquis  F.  J.  DE.  Travels  in  North  America  in 
the  years  1780-81-82.  New  York.  1828.  (Chastellux.) 

CHEETHAM,  JAMES.  Letters,  From  1801  to  1806.  Printed  in 
Proceedings  of  the  Massachusetts  Historical  Society,  April 
and  May,  1907. 

CHRISTIAN  WILLIAM  ASBURY.  Richmond,  Her  Past  and  Pres- 
ent. Richmond.  1912.  (Christian.) 

COLLINS,  LEWIS.  History  of  Kentucky.  Enlarged  by  his  son, 
Richard  H.  Collins.  2  vols.  Covington,  Kentucky,  1874. 
(Collins:  History  of  Kentucky.) 


496      WORKS  CITED  IN  THIS  VOLUME 

CONWAY,  MONCURE  DANIEL.  Omitted  Chapters  of  History, 
disclosed  in  the  Life  and  Papers  of  Edmund  Randolph. 
New  York.  1888.  (Conway.) 

Also  see  Paine,  Thomas.    Writings. 

CREVECCEUR,  "  MICHEL  GUILLAUME  SAINT  JOHN  DE.  Letters 
from  an  American  Farmer.  By  J.  Hector  St.  John  Creve- 
cceur.  [pseud.]  New  York.  1904.  (Crevecceur.) 

DANDRIDGE,  DANSKE.  American  Prisoners  of  the  Revolution. 

Richmond.   1911.   (Dandridge:  American  Prisoners  of  the 

Revolution.) 
DAVIS,  JOHN.  Travels  of  Four  Years  and  a  half  in  the  United 

States  of  America.  1798-1802.  London.  1803.   (Davis.) 
PAWSON,  HENRY  B.  The  Assault  on  Stony  Point  by  General 

Anthony  Wayne.  Morrisania.  1863.   (Dawson.) 
DEFOE,  DANIEL.    Novels  and  Miscellaneous  Works.    Preface 

and  Notes  attributed  to  Sir  Walter  Scott.  Moll  Flanders 

[vol.3.]    [Bonn's  British  Classics.]  7vols.  London.  1854- 

66.    (Defoe:  Moll  Flanders.) 
DILLON,  JOHN  F.,  compiler.   John  Marshall,  Life,  Character, 

and  Judicial  Services.    (Including  the  Classic  Orations 

of  Binney,  Story,  Phelps,  Waite,  and  Rawle.)    3  vols. 

Chicago.    1903.    (Story,  in  Dillon;  and  Binney,  in  Dil- 
lon.) 
DODD,  WILLIAM  E.    Statesmen  of  the  Old  South,  or  From 

Radicalism  to  Conservative  Revolt.    New  York.    1911. 

(Dodd.) 

DONNAN,  ELIZABETH,  editor.   See  Bayard,  James  A.  Papers. 
DOUGLAS,  Sir  ROBERT.  Peerage  of  Scotland.  Edinburgh.  1764. 

(Douglas :  Peerage  of  Scotland.) 

ECKENRODE,  H.  J.  The  Revolution  in  Virginia.  Boston.  1916. 
(Eckenrode:  R.  V.) 

Separation  of  Church  and  State  in  Virginia.  A  Study  in 

the  Development  of  the  Revolution.  Richmond.  1910. 
[Special  Report  of  the  Department  of  Archives  and  His- 
tory of  the  Virginia  State  Library.]  (Eckenrode:  S.  of  C. 
and  S.) 

Eighty  Years'  Progress  of  the  United  States,  from  the  Revolu- 
tionary War  to  the  Great  Rebellion.  [By  Eminent  Literary 
Men.]  New  York.  1864.  (Eighty  Years'  Progress.) 

ELLIOTT,  JONATHAN,  compiler.    The  Debates  in  the  Several 


WORKS  CITED  IN  THIS  VOLUME      497 

State  Conventions  of  the  Adoption  of  the  Federal  Con- 
stitution.  5  vols.    Philadelphia.    1896.   (Elliott.) 

FITHIAN,  PHILIP  VICKERS.    Journal  and  Letters,  1767-1774. 

Edited  by  John  Rogers  Williams.    Princeton  University 

Library.   1900.   (Fithian.) 
FLANDERS,  HENRY.    The  Lives  and  Times  of  the  Chief  Justices 

of  the  Supreme  Court  of  the  United  States.  2  vols.   Phila- 
delphia. 1881.    (Flanders.) 
FOOTE,  REV.  WILLIAM  HENRY.  Sketches  of  Virginia,  Historical 

and  Biographical.  2  vols.  Philadelphia.  1850-55.  (Foote: 

Sketches  of  Virginia.) 
FORD,  PAUL  LEICESTER,  editor.  Essays  on  the  Constitution  of 

the  United  States.   New  York.    1892.    (Ford:  Essays  on 

the  Constitution.) 
Pamphlets  on  the  Constitution  of  the  United  States. 

New  York.   1888.   (Ford:  P.  on  C.) 

See  also  Jefferson,  Thomas.  Works. 
FORD,  WORTHINGTON  CHAUNCEY,  editor.  See  Jefferson,  Thomas. 

Correspondence. 

Also  see  Washington,  George.  Writings. 
FRANKLIN,  BENJAMIN.    Writings.    Edited  by  Albert  Henry 

Smyth.   10  vols.  New  York.   1907.   (Writings:  Smyth.) 
FRENEATJ,  PHILIP.  Poems  of  Philip  Freneau.  Edited  by  Fred 

Lewis  Pattee.  3  vols.  Princeton.   1902-07.   (Freneau.) 

GALLATIN,  ALBERT.  Writings.  Edited  by  Henry  Adams. 
3  vols.  Philadelphia.  1879.  (Gallatin's  Writings:  Adams.) 
See  also  Adams,  Henry.  Life  of  Albert  Gallatin. 

GARLAND,  HUGH  A.  Life  of  John  Randolph  of  Roanoke.  2  vols. 
New  York.  1851.  (Garland:  Randolph.) 

GIBBS,  GEORGE,  editor.  See  Wolcott,  Oliver.  Memoirs  of  the 
Administrations  of  Washington  and  John  Adams.  (Gibbs.) 

GOODRICH,  SAMUEL  G.  Recollections  of  a  Lifetime,  or  Men 
and  Things  I  Have  Seen.  2  vols.  New  York.  1856. 
(Goodrich.) 

GOSSE,  EDMUND.  A  History  of  Eighteenth  Century  Literature. 
London.  1889.  (Gosse:  History  of  Eighteenth  Century 
Literature.) 

GRAYDON,  ALEXANDER.  Memoirs  of  His  Own  Time,  with  Remi- 
niscences of  the  Men  and  Events  of  the  Revolution.  Edited 
by  John  Stockton  Littell.  Philadelphia.  1846.  (Graydon.) 


498      WORKS  CITED  IN  THIS  VOLUME 

Green  Bag,  The;  an  Entertaining  Magazine  for  Lawyers. 
Edited  by  Horace  W.  Fuller.  Vols.  1-26.  Boston.  1889- 
1914.  [After  1914  consolidated  with  The  Central  Law 
Journal.]  (Green  Bag.) 

GRIGSBY,  HUGH  BLAIR.  The  History  of  the  Virginia  Federal 
Convention  of  1788.  Virginia  Historical  Society.  Rich- 
mond. 1815.  [Volume  1  is  volume  9,  new  series.  Volume 
2  is  volume  10,  new  series.]  (Grigsby.) 

HALSEY,  FRANCIS  WHITING.  The  Old  New  York  Frontier. 
New  York.  1901.  (Halsey:  Old  New  York  Frontier.) 

HAMILTON,  ALEXANDER.  Works.  Edited  by  John  C.  Hamilton. 
7  vols.  New  York.  1851.  (Works:  Hamilton.) 

Works.  Edited  by  Henry  Cabot  Lodge.  [Federal  Edi- 
tion.] 12  vols.  New  York.  1904.  (Works:  Lodge.) 

HAMILTON,  JOHN  C.,  editor.    History  of  the  Republic  of  the 
United  States,  as  traced  in  the  Writings  of  Alexander 
Hamilton  and  his  Contemporaries.    6  vols.    New  York. 
1857-flO.   (Hamilton:  History  of  the  Republic.) 
See  also  Hamilton,  Alexander.  Works. 

HAMILTON,  STANISLAUS  MURRAY,  editor.  See  Monroe,  James. 
Writings. 

HARDING,  SAMUEL  BANNISTER.  The  Contest  over  the  Rati- 
fication of  the  Federal  Constitution  in  the  State  of  Mas- 
sachusetts. New  York.  1896.  (Harding.) 

HART,  ALBERT  BUSHNELL.  American  History  told  by  Con- 
temporaries. 4  vols.  New  York.  1897-1901.  (Hart.) 

HATCH,  Louis  CLINTON.  Administration  of  the  American 
Revolutionary  Army.  New  York.  1904.  (Hatch.) 

HAZEN,  CHARLES  DOWNER.  Contemporary  American  Opinion 
of  the  French  Revolution.  Baltimore.  1897.  (Hazen.) 

HEITMAN,  FRANCIS  BERNARD.  Historical  Register  of  Officers  of 
the  Continental  Army,  during  the  War  of  the  Revolution. 
Washington,  D.C.  1893. 

Same.     Revised   and   Enlarged   Edition.   Washington. 

1914.   (Heitman.) 

HENING,  WILLIAM  WALLER.  See  Virginia.  Laws. 

HENRY,  PATRICK.  Life,  Correspondence,  and  Speeches. 
Edited  by  William  Wirt  Henry.  3  vols.  New  York.  1891. 
(Henry.) 

See  also  Wirt,  William.    Sketches  of  Life  and  Character 
of  Patrick  Henry. 


WORKS  CITED  IN  THIS  VOLUME      499 

HENRY,  WILLIAM  WIBT,  editor.  See  Henry,  Patrick.  Life, 
Correspondence,  and  Speeches. 

HINSDALE,  B.  A.  The  Old  Northwest.  2  vols.  New  York. 
1891.  (Hinsdale.) 

Historical  Magazine  and  Notes  and  Queries  Concerning  the 
Antiquities,  History,  and  Biography  of  America.  [1st  Series .] 
Vols.  1-10.  New  York.  1857-75.  (Hist.  Mag.) 

History  of  William  and  Mary  College,  from  its  foundation,  1693, 
to  1870.  Baltimore.  1870. 

HOWE,  HENRY.  Historical  Collections  of  Virginia.  Charles- 
ton, S.C.  1845.  (Howe.) 

HUDSON,  FREDERIC.  Journalism  in  the  United  States  from 
1690  to  1872.  New  York.  1873.  (Hudson:  Journalism 
in  the  United  States.) 

HUNT,  GAILLARD,  editor.  See  Madison,  James.  Writings. 

IREDELL,  JAMES.  See  McRee,  Griffith  J.  Life  and  Corre- 
spondence of  James  Iredell. 

IRVING,  WASHINGTON.  The  Life  of  George  Washington.  5  vols. 
New  York.  1855.  (Irving.) 

JAMESON,  J.  FRANKLIN,  editor.  Essays  in  the  Constitutional 
History  of  the  United  States,  1775-1789,  by  Graduates 
and  Former  Members  of  Johns  Hopkins  University. 
Boston.  1889.  (Jameson.) 

JAY,  JOHN.  Correspondence  and  Public  Papers.  Edited  by  Henry 
P.  Johnston.  4  vols.  New  York.  1890.  (Jay:  Johnston.) 

JEFFERSON,  THOMAS.  Correspondence,  from  originals  in  the 
collections  of  William  K.  Bixby.  Edited  by  Worthington 
Chauncey  Ford.  Boston.  1916.  (Thomas  Jefferson  Cor- 
respondence: Ford.) 

Works.  Edited  by  Paul  Leicester  Ford.  Federal  Edition. 

12  vols.  New  York.   1904.   (Works:  Ford.) 

Writings.  Edited  by  H.  A.  Washington.  9  vols.  Washing. 

ton,  D.C.  1853-54.   (Jefferson's  Writings:  Washington.) 
See  Morse,  John  T.   Thomas  Jefferson. 
And  see  Randall,  Henry  S.    Life  of  Thomas  Jefferson. 
Also  see  Tucker,  George.  Life  of  Thomas  Jefferson. 

JOHNSTON,  HENRY  P.,  editor.  See  Jay,  John.  Correspondence 
and  Public  Papers. 

JONES,  HUGH.  The  Present  State  of  Virginia.  London.  1724. 
(Jones.) 


500      WORKS  CITED  IN  THIS  VOLUME 

KAPP,  FRIEDBICH.  Life  of  Major-General  Von  Steuben.  New 
York.  1859.  (Kapp.) 

KEITH,  Sir  WILLIAM,  Bart.  The  History  of  the  British  Plan- 
tations in  America,  Part  I,  containing  the  History  of  Vir- 
ginia. London.  1738.  (Keith:  History  of  Virginia.) 

KING,  CHARLES  R.,  editor.  See  King,  Rufus.  Life  and  Corre- 
spondence. 

KING,  RUFUS.  Life  and  Correspondence.  Edited  by  Charles 
R.  King.  6  vols.  New  York.  1894.  (King.) 

LAMB,  General  JOHN.   Memoir  and  Life.    See  Leake,  Isaac  Q. 
LANG,  ANDREW.    History  of  English  Literature.   New  York. 
1912.    [2d  edition.]   (Lang:  History  of  English  Literature.) 

LA      RoCHEFOUCAULD-LlANCOURT,        FRANCOIS        ALEXANDRE 

FREDERIC,  Due  DE.  Travels  through  the  United  States  of 
North  America.  4  vols.  London.  1800.  (La  Rochefou- 
cauld.) 

LEAKE,  ISAAC  Q.  Memoir  of  the  Life  and  Times  of  General 
John  Lamb,  an  Officer  of  The  Revolution,  and  his  Cor- 
respondence with  Washington,  Clinton,  Patrick  Henry, 
and  other  Distinguished  Men.  Albany.  1850.  (Leake: 
Lamb.) 

LEE,  EDMUND  JENNINGS.  Lee  of  Virginia.  1642-1892.  Bio- 
graphical and  Genealogical  Sketches  of  the  Descendants 
of  Colonel  Richard  Lee.  Philadelphia.  1895.  (Lee:  Lee 
of  Virginia.) 

LEE,  Colonel  RICHARD.  Lee  of  Virginia.  See  Lee,  Edmund 
Jennings. 

LODGE,  HENRY  CABOT.  Life  and  Letters  of  George  Cabot. 
Boston.  1878.  (Lodge:  Cabot.) 

George  Washington.    2  vols.   Boston.    1889.    [American 

Statesmen.]   (Lodge:  Washington.) 
See  also  Hamilton,  Alexander.  Works. 

LOSSING,  BENSON  J.  The  Pictorial  Field-Book  of  the  Revolu- 
tion. 2  vols.  New  York.  1851.  (Lossing.) 
See  also  Washington,  George.    Diary. 

LOWDERMILK,  WILL  H.  History  of  Cumberland  (Maryland). 
Washington,  D.C.  1878.  (Lowdermilk.) 

M'CLUNG,  JOHN  ALEXANDER.  Sketches  of  Western  Adventure. 
Philadelphia.  1832.  (M' Clung:  Sketches  of  Western  Adven- 
ture.) 


WORKS  CITED  IN  THIS  VOLUME      501 

McCRADY,  EDWARD.  The  History  of  South  Carolina.  4  vols. 
New  York.  1897-1902.  (McCrady.) 

McHENRY,  JAMES.  Life  and  Correspondence.  See  Steiner,  Ber- 
nard C. 

MCMASTER,  JOHN  BACH,  and  STONE,  FREDERICK  D.  Penn- 
sylvania and  the  Federal  Constitution.  Philadelphia. 
1888.  (McMaster  and  Stone.) 

McREE,  GRIFFITH,  J.  Life  and  Correspondence  of  James 
Iredell.  2  vols.  New  York.  1857.  (McRee.) 

MADISON,  JAMES.  Writings.  Edited  by  Gaillard  Hunt.  9  vols. 
New  York.  1900.  (Writings :  Hunt.) 

See  also  Rives,  William  C.   History  of  Life  and  Times. 

Magazine,  The,  of  American  History,  with  Notes  and  Queries. 
Vols.  1-42.  New  York.  1877-1913.  (Mag.  Am.  Hist.) 

Magazine  of  Western  History.  Cleveland,  Ohio.  Edited  by 
William  W.  Williams.  Vols.  1-14.  1885-94.  (Mag.  West- 
ern Hist.) 

MARSHALL,  HUMPHREY.  The  History  of  Kentucky.  2  vols. 
Frankfort.  1824.  (Humphrey  Marshall.) 

MARSHALL,  JOHN.  Autobiography.  See  Smith,  John  Jay  and 
Watson,  John  Fanning,  joint  editors.  American  Histori- 
cal and  Literary  Curiosities.  (Autobiography.) 

Same.  In  National  Portrait  Gallery  of  Eminent  Ameri- 
cans. Paintings  by  Alonzo  Chappel,  and  Biographical  and 
Historical  Narratives  by  Evert  A.  Duyckinck.  2  vols. 
New  York.  1862. 

Same,  reprinted.    See  Dillon,  John  F. 

Life  of  George  Washington.  [1st  Edition.]  5  vols.  Phila- 
delphia. 1805.  [2d  Edition.]  2  vols.  Philadelphia.  1840. 
[The  2d  Edition  is  cited  in  this  work  unless  otherwise 
stated  in  the  notes.]  (Marshall.) 

See  also  Thayer,  James  Bradley.  John  Marshall. 
And  see  Flanders,  Henry.  Lives  of  the  Chief  Justices. 
Also  see  Van  Santvoord,  George.    Sketches  of  the 
Lives  of  the  Chief -Justices. 

MASON,  GEORGE.  Life.  See  Rowland,  Kate  Mason. 

MEADE,  Bishop  WILLIAM.  Old  Churches,  Ministers,  and 
Families  of  Virginia.  2  vols.  Richmond.  1910.  (Meade.) 

MINER,  CHARLES.  History  of  Wyoming,  in  a  series  of  letters, 
from  Charles  Miner,  to  his  son,  William  Penn  Miner,  Esq. 
Philadelphia.  1845.  (Miner:  History  of  Wyoming.) 

MINOT,  GEORGE  RICHARDS.  The  History  of  the  Insurrections 


502      WORKS  CITED  IN  THIS  VOLUME 

in  Massachusetts,  in  1786,  and  the  Rebellion  consequent 
thereon.  Boston.  1810.  (Minot:  History  of  the  Insurrec- 
tions in  Massachusetts.) 

MONROE,  JAMES.  Writings.  Edited  by  Stanislaus  Murray 
Hamilton.  7  vols.  [Unfinished  work.]  New  York.  1898- 
1903.  (Monroe's  Writings :  Hamilton.) 

MOORE,  FRANK.  Diary  of  the  American  Revolution,  from 
Newspapers  and  Original  Documents.  2  vols.  New  York. 
1809.  (Moore's  Diary.) 

MORDECAI,  SAMUEL.  Richmond  in  By-Gone  Days,  Being  Remi- 
niscences of  An  Old  Citizen.  Richmond.  1856.  (Mordecai.) 

MORRIS,  GOUVERNEUR.  Diary  and  Letters.  Edited  by  Anne 
Cary  Morris.  2  vols.  London.  1889.  (Morris.) 

MORSE,  JOHN  T.  Thomas  Jefferson.  Boston.  1795.  [Ameri- 
can Statesmen.]  (Morse.) 

MUNFORD,  WILLIAM.    See  Virginia,   Law  Reports. 

New  Jersey  Historical  Society.  Proceedings.  Vols.  1-10.  New- 
ark. 1847-1905.  (Proc.,  N.J.  Hist.  Soc.) 

NILES,  HEZEKIAH.  Centennial  Offering,  Republication  of  the 
Principles  and  Acts  of  the  Revolution  in  America.  New 
York.  1876.  (Niles:  Principles  and  Acts  of  the  Revolution.) 

NOTT,  ELIPHALET.   Memoirs.    See  Van  Santvoord,  C. 

jf 

PAINE,  THOMAS.  Writings.  Edited  by  Moncure  Daniel  Con- 
way.  4  vols.  New  York.  1894-96.  (Writings:  Conway.) 

PAXTON,  WILLIAM  M.  The  Marshall  Family,  or  a  Genealogical 
Chart  of  the  Descendants  of  John  Marshall  and  Elizabeth 
Markham.  Cincinnati.  1885.  (Paxton.) 

PECQUET  DU  BELLET,  LOUISE.  Some  Prominent  Virginia 
Families.  4  vols.  Lynchburg,  Va.  1909.  (Pecquet  du 
Bellet.) 

Pennsylvania  Magazine  of  History  and  Biography.  Published 
by  the  Historical  Society  of  Pennsylvania..  Vols.  1-40. 
Philadelphia.  1877-1916.  (Pa.  Mag.  Hist,  and  Biog.) 

PICKERING,  OCTAVIUS.  Life  of  Timothy  Pickering,  by  his  son 
and  continued  by  Charles  W.  Upham.  4  vols.  Boston. 
1867-73.  (Pickering:  Pickering.) 

PICKERING,  TIMOTHY.  Life.   See  Pickering,  Octavius. 

QUINCY,  JOSIAH.  Figures  of  the  Past,  from  the  leaves  of  Old 
Journals.  Boston.  1883.  (Quincy :  Figures  of  the  Past.) 


WORKS  CITED  IN  THIS  VOLUME      503 

RANDALL,  HENRY  S.   Life  of  Thomas  Jefferson.   3  vols.  New 

York.   1858.    (Randall.) 
RANDOLPH,  EDMUND.  Life  and  Papers.  See  Conway,  Moncure 

Daniel. 

RANDOLPH,  JOHN.  Life.    See  Garland,  Hugh  A. 
RIVES,  WILLIAM  C.    The  History  of  the  Life  and  Times  of 

James  Madison.   3  vols.  Boston.   1859.   (Rives.) 
ROWLAND,  KATE  MASON.  Life  of  George  Mason.  2  vols.  New 

York.   1892.   (Rowland.) 

SARGENT,  WINTHROP.   The  History  of  an  Expedition  against 

Fort  Du  Quesne,  in  1755,  under  Major-General  Edward 

Braddock.   Philadelphia.   1855.   (Sargent.) 
SCHOEPF,   JOHANN  DAVID.    Travels   in    the    Confederation, 

1783-1784.  Translated  and  edited  by  Alfred  J.  Morrison. 

2  vols.  Philadelphia.   1911.   (Schoepf.) 
SCOTT,  JOHN,  of  Fauquier  County,  Va.    The  Lost  Principle. 

By  "Barbarossa''  [pseud.].  Richmond.   1860.   (Scott.) 
SLAUGHTER,  Rev.  PHILIP.     A  History  of  St.  Mark's  Parish, 

Culpepper  County,  Virginia.  Baltimore.  1877.  (Slaughter.) 
A  History  of  Bristol  Parish,  Virginia.  Richmond.  1879. 

(Slaughter :  Bristol  Parish.) 
SMITH,  JOHN  JAY,  and  WATSON,  JOHN  FANNING,  joint  editors. 

American  Historical  and  Literary  Curiosities.    New  York. 

1852.  (Am.  Hist,  and  Lit.  Curiosities.) 
SMYTH-STUART,  J.  FERDINAND  D.  A  Tour  in  the  United  States 

of  America.   £  vols.  London.    1784.    (Smyth:  Tour  of  the 

United  States.) 
Southern  Literary  Messenger.     Vols.   1-38.    New^York  and 

Washington.    1834-64. 
SPARKS,  JARED.    The  Life  of  George  Washington.    Boston. 

1839.   [Same  plates,  1842.]    (Sparks.) 
Correspondence  of  the  American  Revolution  [being  letters 

of  eminent  men  to  George  Washington].   4  vols.   Boston. 

1853.  (Cor.  Rev.:  Sparks.) 

See  also  Washington,  George.    Writings. 
STANARD,  MARY  NEWTON.   The  Story  of  Bacon's  Rebellion. 

New  York.   1907.    (Stanard:  Story  of  Bacon's  Rebellion.) 
STEINER,  BERNARD  C.  The  Life  and  Correspondence  of  James 

McHenry.   Cleveland.   1907.    (Steiner.) 
STEPHEN,  LESLIE.  Alexander  Pope.  New  York.  1880.  (Stephen: 

Alexander  Pope.) 


504      WORKS  CITED  IN  THIS  VOLUME 

STEUBEN,  FREIDRICH  WILHELM  AUGUST  HEINRICH  FERDI- 
NAND, Baron  VON.  Life.  See  Kapp,  Friedrich. 

STILLE,  CHARLES  J[ANEWAY].  Major-General  Anthony 
Wayne,  and  the  Pennsylvania  Line  in  the  Continental 
Army.  Philadelphia.  1893.  (Stille.) 

STORY,  JOSEPH.    Discourse  on  John  Marshall,  reprinted. 
See  Dillon,  John  F. 
Also  see  Story,  William  Wirt. 

STORY,  WILLIAM  WTIRT.  Life  and  Letters  of  Joseph  Story.  2 
vols.  Boston.  1851.  (Story.) 

TALLEYRAND-PERIGORD,  CHARLES  MAURICE  DE,  Prince  DE 
BENEVENT.  Memoirs.  Edited  by  the*  Due  de  Broglie. 
5  vols.  New  York.  1891.  (Memoirs  of  Talleyrand:  Bro- 
glie's  Ed.) 

TERHUNE,  MARY  VIRGINIA  HAWES.  Some  Colonial  Home- 
steads and  their  Stories.  By  Marion  Harland  [pseud.]. 
2  vols.  New  York.  1912.  (Terhune:  Colonial  Home- 
steads.) 

THAYER,  JAMES  BRADLEY.  John  Marshall.  Boston.  1904. 
[Riverside  Biographical  Series,  No.  9.]  (Thayer.) 

TRAILL,  H.  D.,  editor.  Social  England.  A  Record  of  the  Prog- 
ress of  the  People.  By  Various  Writers.  7  vols.  London. 
1896.  (Traill :  Social  England.) 

TREVELYAN,  Sir  GEORGE  OTTO,  Bart.  The  American  Revolu- 
tion. 4  vols.  New  York.  1907.  (Trevelyan.) 

TUCKER,  GEORGE.  Life  of  Thomas  Jefferson.  2  vols.  Phila- 
delphia. 1837.  (Tucker.) 

TURNER,  FREDERICK  JACKSON.  The  Old  West.  [Printed  ii? 
Wisconsin  Historical  Society,  Proceedings  for  1908.]  Madi- 
son, Wis.  1909.  (Turner:  The  Old  West.) 

TYLER,  LYON  G.  Letters  and  Times  of  the  Tylers.  2  vols. 
Richmond.  1884.  (Tyler.) 

Williamsburg,  the  Old  Colonial  Capital.  Richmond.  1907. 

(Tyler :  Williamsburg.) 

VAN  BUREN,  MARTIN.   Inquiry  into  the  Origin  and  Course  of 

Political  Parties  in  the  United  States.   New  York.   1867. 

(Van  Buren.) 
VAN   SANTVOORD,    C.     Memoirs    of    Eliphalet   Nott.     New 

York.     1876.     (Van    Santvoord:    Memoirs   of  Eliphalet 

Nott.) 


WORKS  CITED  IN  THIS  VOLUME      505 

VAN  SANTVOORD,  GEORGE.  Sketches  of  the  Lives  and  Judicial 
Services  of  the  Chief -Justices  of  the  Supreme  Court  of 
United  States.  New  York.  1854.  (Van  Santvoord.) 

Virginia  Historical  Papers.  Manuscripts  now  in  the  Virginia 
Historical  Society  Library,  at  Richmond.  (Fa.  Hist.  Prs.) 

VIRGINIA.  House  of  Burgesses.  Journal  of  the  Virginia  House 
of  Burgesses.  1619-1776.  Now  in  the  Archives  of  the  Vir- 
ginia State  Library.  (Journal,  H.B.) 

VIRGINIA.  House  of  Delegates.  Journal  of  the  Virginia  House 
of  Delegates.  1776-1916.  Now  in  the  Archives  of  the  Vir- 
ginia State  Library.  (Journal,  H.D.) 

VIRGINIA.  Laws.  Hening,  William  Waller.  The  Statutes  at 
Large.  Being  a  Collection  of  the  Laws  of  Virginia  from 
1619  to  1808.  13  vols.  New  York.  1819-23.  (Hening.) 

VIRGINIA.  Law  Reports.  Call,  Daniel.  Reports  of  Cases 
Argued  and  Adjudged  in  the  Court  of  Appeals  of  Vir- 
ginia. 6  vols.  Richmond.  1824-33.  (Call.) 
-  Munford,  William.  Reports  of  Cases  Argued  and  De- 
termined in  the  Supreme  Court  of  Appeals,  of  Virginia. 
15  vols.  New  York.  1812.  (Munford). 

Virginia  Magazine  of  History  and  Biography.  Published  by 
the  Virginia  Historical  Society.  Vols.  1-24.  Richmond. 
1893-1916.  (Fa.  Mag.  Hist,  and  Biog.) 

WALDO,  Surgeon  ALBIGENCE.  Diary  at  Valley  Forge  from  Nov. 
1,  1777  to  Jan.  15,  1778.  [In  Historical  Magazine,  vol.  5, 
pp.  129-34,  169-72.] 

WALLACE,  DAVID  DUNCAN.  The  Life  of  Henry  Laurens,  with 
Sketch  of  the  Life  of  Lieutenant-Colonel  John  Laurens. 
New  York.   1915.   (Wallace.) 
WARVILLE.  See  Brissot  de  Warville. 

WASHINGTON,  GEORGE.  Diary  from  1789  to  1791.  Edited 
by  Benson  J.  Lossing.  New  York.  1860.  (Washington's 
Diary:  Lossing.) 

Writings.    Edited  by  Worthington  Chauncey  Ford.    14 

vols.  New  York.   188&-1893.   (Writings:  Ford.) 

Writings.    Edited  by  Jared  Sparks.    12  vols.    Boston. 

1834-1837.   (Writings:  Sparks.) 

See  Irving,  Washington.    Life  of  George  Washington. 
And  Lodge,  Henry  Cabot.     George  Washington. 
Also  Marshall,  John.    Life  of  George  Washington. 
Also  see  Sparks,  Jared.  Life  of  George  Washington. 


506      WORKS  CITED  IN  THIS  VOLUME 

WASHINGTON,  H.  A.,  editor.  See  Jefferson,  Thomas.  Writ- 
ings. 

WATSON,  WINSLOW  C.  Men  and  Times  of  the  Revolution,  or 
Memoirs  of  Elkanah  Watson,  by  his  son.  New  York. 
1856.  (Watson.) 

WEEDON,  General  GEORGE.  Valley  Forge  Orderly  Book.  New 
York.  1902.  (Weedon.) 

WELD,  ISAAC.  Travels  Through  the  States  of  North  America, 
and  the  Provinces  of  Upper  and  Lower  Canada  During  the 
Years  1795, 1796,  and  1797.  [3d  Edition.]  2  vols.  London. 
1800.  (Weld.) 

WERTENBAKER,  THOMAS  J.  Patrician  and  Plebeian  in  Vir- 
ginia, or  the  Origin  and  Development  of  the  Social  Classes 
of  the  Old  Dominion.  Charlottesville,  Va.  1910.  (Werten- 
baker:  P.  and  P.) 

Virginia  Under  the  Stuarts,  1607-1688.  Princeton  Uni- 
versity. 1914.  (Wertenbaker:  V.  U.  S.) 

WILD,  EBENEZER.  Diary  in  the  Revolutionary  War  from 
1776  to  1781.  [In  Massachusetts  Historical  Society,  Pro- 
ceedings (2d  Series),  vol.  6,  pp.  78-160.] 

WILKINSON,  General  JAMES.  Memoirs  of  my  Own  Times. 
3  vols.  Philadelphia.  1816.  (Wilkinson:  Memoirs.) 

William  and  Mary  College  Quarterly  Historical  Magazine. 
Richmond.  Vols.  1-16.  1892-1908.  (W.  and  M.  C,  Q.) 

WIRT,  WILLIAM.  The  Letters  of  the  British  Spy.  [9th  Edi- 
tion.] Baltimore.  1831.  (Wirt:  British  Spy.) 

Sketches  of  the  Life  and  Character  of  Patrick  Henry. 

Philadelphia.  1818.  (Wirt.) 

WISE,  JENNINGS  CROPPER.  Ye  Kingdome  of  Accawmacke, 
or  the  Eastern  Shore  of  Virginia,  in  the  Seventeenth  Cen- 
tury. Richmond.  1911.  (Wise.) 

WOLCOTT,  OLIVER.  Memoirs  of  the  Administrations  of  Wash- 
ington and  John  Adams.  Edited  from  the  papers  of  Oliver 
Wolcott,  by  George  Gibbs.  2  vols.  New  York.  1846. 
(Gibbs.) 

WOOD,  WILLIAM.  The  Fight  for  Canada.  Westminster,  1904. 
(Wood.) 


Beveridge,  Albert  Jeremiah 
The  life  of  John  Marshall 


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