Kitabı oxu: «The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788»

PREFACE

The work of John Marshall has been of supreme importance in the development of the American Nation, and its influence grows as time passes. Less is known of Marshall, however, than of any of the great Americans. Indeed, so little has been written of his personal life, and such exalted, if vague, encomium has been paid him, that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth.

He appears to us as a gigantic figure looming, indistinctly, out of the mists of the past, impressive yet lacking vitality, and seemingly without any of those qualities that make historic personages intelligible to a living world of living men. Yet no man in our history was more intensely human than John Marshall and few had careers so full of movement and color. His personal life, his characteristics and the incidents that drew them out, have here been set forth so that we may behold the man as he appeared to those among whom he lived and worked.

It is, of course, Marshall's public work with which we are chiefly concerned. His services as Chief Justice have been so lauded that what he did before he ascended the Supreme Bench has been almost entirely forgotten. His greatest opinions, however, cannot be fully understood without considering his previous life and experience. An account of Marshall the frontiersman, soldier, legislator, lawyer, politician, diplomat, and statesman, and of the conditions he faced in each of these capacities, is essential to a comprehension of Marshall the constructive jurist and of the problems he solved.

In order to make clear the significance of Marshall's public activities, those episodes in American history into which his life was woven have been briefly stated. Although to the historian these are twice-told tales, many of them are not fresh in the minds of the reading public. To say that Marshall took this or that position with reference to the events and questions of his time, without some explanation of them, means little to any one except to the historical scholar.

In the development of his career there must be some clear understanding of the impression made upon him by the actions and opinions of other men, and these, accordingly, have been considered. The influence of his father and of Washington upon John Marshall was profound and determinative, while his life finally became so interlaced with that of Jefferson that a faithful account of the one requires a careful examination of the other.

Vitally important in their effect upon the conduct and attitude of Marshall and of the leading characters of his time were the state of the country, the condition of the people, and the tendency of popular thought. Some reconstruction of the period has, therefore, been attempted. Without a background, the picture and the figures in it lose much of their significance.

The present volumes narrate the life of John Marshall before his epochal labors as Chief Justice began. While this was the period during which events prepared him for his work on the bench, it was also a distinctive phase of his career and, in itself, as important as it was picturesque. It is my purpose to write the final part as soon as the nature of the task permits.

For reading one draft of the manuscript of these volumes I am indebted to Professor Edward Channing, of Harvard University; Dr. J. Franklin Jameson, of the Carnegie Foundation for Historical Research; Professor William E. Dodd, of Chicago University; Professor James A. Woodburn, of Indiana University; Professor Charles A. Beard, of Columbia University; Professor Charles H. Ambler, of Randolph-Macon College; Professor Clarence W. Alvord, of the University of Illinois; Professor D. R. Anderson, of Richmond College; Dr. H. J. Eckenrode, of Richmond College; Dr. Archibald C. Coolidge, Director of the Harvard University Library; Mr. Worthington C. Ford, of the Massachusetts Historical Society; and Mr. Lindsay Swift, Editor of the Boston Public Library. Dr. William G. Stanard, of the Virginia Historical Society, has read the chapters which touch upon the colonial period. I have availed myself of the many helpful suggestions made by these gentlemen and I gratefully acknowledge my obligations to them.

Mr. Swift and Dr. Eckenrode, in addition to reading early drafts of the manuscript, have read the last draft with particular care and I have utilized their criticisms. The proof has been read by Mr. Swift and the comment of this finished critic has been especially valuable.

I am indebted in the highest possible degree to Mr. Worthington C. Ford, of the Massachusetts Historical Society, who has generously aided me with his profound and extensive knowledge of manuscript sources and of the history of the times of which this work treats. His sympathetic interest and whole-hearted helpfulness have not only assisted me, but encouraged and sustained me in the prosecution of my labors.

In making these acknowledgments, I do not in the least shift to other shoulders the responsibility for anything in these volumes. That burden is mine alone.

I extend my thanks to Mr. A. P. C. Griffin, Assistant Librarian, and Mr. Gaillard Hunt, Chief of the Manuscripts Division, of the Library of Congress, who have been unsparing in their efforts to assist me with all the resources of that great library. The officers and their assistants of the Virginia State Library, the Boston Public Library, the Library of Harvard University, the Manuscripts Division of the New York Public Library, the Massachusetts Historical Society, the Pennsylvania Historical Society, and the Virginia Historical Society have been most gracious in affording me all the sources at their command.

I desire to express my appreciation for original material furnished me by several of the descendants and collateral relatives of John Marshall. Miss Emily Harvie, of Richmond, Virginia, placed at my disposal many letters of Marshall to his wife. For the use of the book in which Marshall kept his accounts and wrote notes of law lectures, I am indebted to Mrs. John K. Mason, of Richmond. A large number of original and unpublished letters of Marshall were furnished me by Mr. James M. Marshall, of Front Royal, Virginia, Mr. Robert Y. Conrad, of Winchester, Virginia; Mrs. Alexander H. Sands, of Richmond, Virginia; Miss Sallie Marshall, of Leeds, Virginia; Mrs. Claudia Jones, and Mrs. Fannie G. Campbell of Washington, D.C.; Judge J. K. M. Norton, of Alexandria, Virginia; Mr. A. Moore, Jr., of Berryville, Virginia; Dr. Samuel Eliot Morison, of Boston, Massachusetts, and Professor Charles William Dabney, of Cincinnati, Ohio. Complete copies of the highly valuable correspondence of Mrs. Edward Carrington were supplied by Mr. John B. Minor, of Richmond, Virginia, and by Mr. Carter H. FitzHugh, of Lake Forest, Illinois. Without the material thus generously opened to me, this narrative of Marshall's life would have been more incomplete than it is and many statements in it would, necessarily, have been based on unsupported tradition.

Among the many who have aided me, Judge James Keith, of Richmond, Virginia, until recently President of the Court of Appeals of Virginia; Judge J. K. M. Norton and the late Miss Nannie Burwell Norton of Alexandria, Virginia; Mr. William Marshall Bullitt, of Louisville, Kentucky; Mr. Thomas Marshall Smith, of Baltimore, Maryland; Mr. and Mrs. Alexander H. Sands; Mr. W. P. Taylor and Dr. H. Norton Mason, of Richmond, Virginia; Mr. Lucien Keith, Mr. William Horgan, and Mr. William C. Marshall, of Warrenton, Virginia; Judge Henry H. Downing and Mr. Aubrey G. Weaver, of Front Royal, Virginia, have rendered notable assistance in the gathering of data.

I am under particular obligations to Miss Emily Harvie for the use of the striking miniature of Marshall, the reproduction of which appears as the frontispiece to the first volume; to Mr. Roland Gray, of Boston, for the right to reproduce the portrait by Jarvis as the frontispiece of the second volume; to Mr. Douglas H. Thomas of Baltimore, Maryland, for photographs of the portraits of William Randolph, Mary Isham, and Mary Randolph Keith; and to Mr. Charles Edward Marshall, of Glen Mary, Kentucky, for permission to photograph the portrait of Colonel Thomas Marshall.

The large number of citations has made abbreviations necessary. At the end of each volume will be found a careful explanation of references, giving the full title of the work cited, together with the name of the author or editor, and a designation of the edition used.

The index has been made by Mr. David Maydole Matteson, of Cambridge, Massachusetts, and his careful work has added to whatever of value these volumes possess.

Albert J. Beveridge

LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

All references here are to the List of Authorities at the end of this volume

Beard: Econ. I. C. See Beard, Charles A. Economic Interpretation of the Constitution of the United States.

Beard: Econ. O. J. D. See Beard, Charles A. Economic Origins of Jeffersonian Democracy.

Bruce: Econ. See Bruce, Philip Alexander. Economic History of Virginia in the Seventeeth Century.

Bruce: Inst. See Bruce, Philip Alexander. Institutional History of Virginia in the Seventeeth Century.

Cor. Rev.: Sparks. See Sparks, Jared. Correspondence of the Revolution.

Eckenrode: R. V. See Eckenrode, H. J. The Revolution in Virginia.

Eckenrode: S. of C. and S. See Eckenrode, H. J. Separation of Church and State in Virginia.

Jefferson's Writings: Washington. See Jefferson, Thomas. Writings. Edited by H. A. Washington.

Monroe's Writings: Hamilton. See Monroe, James. Writings. Edited by Stanislaus Murray Hamilton.

Old Family Letters. See Adams, John. Old Family Letters. Edited by Alexander Biddle.

Wertenbaker: P. and P. See Wertenbaker, Thomas J. Patrician and Plebeian in Virginia; or the Origin and Development of the Social Classes of the Old Dominion.

Wertenbaker: V. U. S. See Wertenbaker, Thomas J. Virginia Under the Stuarts, 1607-1688.

Works: Adams. See Adams, John. Works. Edited by Charles Francis Adams.

Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited by Paul Leicester Ford.

Works: Hamilton. See Hamilton, Alexander. Works. Edited by John C. Hamilton.

Works: Lodge. See Hamilton, Alexander. Works. Federal Edition. Edited by Henry Cabot Lodge.

Writings: Conway. See Paine, Thomas. Writings. Edited by Moncure Daniel Conway.

Writings: Ford. See Washington, George. Writings. Edited by Worthington Chauncey Ford.

Writings: Hunt. See Madison, James. Writings. Edited by Gaillard Hunt.

Writings: Smyth. See Franklin, Benjamin. Writings. Edited by Albert Henry Smyth.

Writings: Sparks. See Washington, George. Writings. Edited by Jared Sparks.

CHAPTER I
ANCESTRY AND ENVIRONMENT

Often do the spirits of great events stride on before the events and in to-day already walks to-morrow. (Schiller.)

I was born an American; I will live an American; I shall die an American. (Webster.)

"The British are beaten! The British are beaten!" From cabin to cabin, from settlement to settlement crept, through the slow distances, this report of terror. The astounding news that Braddock was defeated finally reached the big plantations on the tidewater, and then spread dismay and astonishment throughout the colonies.

The painted warriors and the uniformed soldiers of the French-Indian alliance had been growing bolder and bolder, their ravages ever more daring and bloody.¹ Already the fear of them had checked the thin wave of pioneer advance; and it seemed to the settlers that their hereditary enemies from across the water might succeed in confining British dominion in America to the narrow strip between the ocean and the mountains. For the royal colonial authorities had not been able to cope with their foes.²

But there was always the reserve power of Great Britain to defend her possessions. If only the home Government would send an army of British veterans, the colonists felt that, as a matter of course, the French and Indians would be routed, the immigrants made safe, and the way cleared for their ever-swelling thousands to take up and people the lands beyond the Alleghanies.

So when at last, in 1755, the redoubtable Braddock and his red-coated regiments landed in Virginia, they were hailed as deliverers. There would be an end, everybody said, to the reign of terror which the atrocities of the French and Indians had created all along the border. For were not the British grenadiers invincible? Was not Edward Braddock an experienced commander, whose bravery was the toast of his fellow officers?³ So the colonists had been told, and so they believed.

They forgave the rudeness of their British champions; and Braddock marched away into the wilderness carrying with him the unquestioning confidence of the people.⁴ It was hardly thought necessary for any Virginia fighting men to accompany him; and that haughty, passionate young Virginia soldier, George Washington (then only twenty-three years of age, but already the chief military figure of the Old Dominion), and his Virginia rangers were invited to accompany Braddock more because they knew the country better than for any real aid in battle that was expected of them. "I have been importuned," testifies Washington, "to make this campaign by General Braddock, … conceiving … that the … knowledge I have … of the country, Indians, &c. … might be useful to him."⁵

So through the ancient and unbroken forests Braddock made his slow and painful way.⁶ Weeks passed; then months.⁷ But there was no impatience, because everybody knew what would happen when his scarlet columns should finally meet and throw themselves upon the enemy. Yet this meeting, when it came, proved to be one of the lesser tragedies of history, and had a deep and fateful effect upon American public opinion and upon the life and future of the American people.⁸

Time has not dulled the vivid picture of that disaster. The golden sunshine of that July day; the pleasant murmur of the waters of the Monongahela; the silent and somber forests; the steady tramp, tramp of the British to the inspiriting music of their regimental bands playing the martial airs of England; the bright uniforms of the advancing columns giving to the background of stream and forest a touch of splendor; and then the ambush and surprise; the war-whoops of savage foes that could not be seen; the hail of invisible death, no pellet of which went astray; the pathetic volleys which the doomed British troops fired at hidden antagonists; the panic; the rout; the pursuit; the slaughter; the crushing, humiliating defeat!⁹

Most of the British officers were killed or wounded as they vainly tried to halt the stampede.¹⁰ Braddock himself received a mortal hurt.¹¹ Raging with battle lust, furious at what he felt was the stupidity and cowardice of the British regulars,¹² the youthful Washington rode among the fear-frenzied Englishmen, striving to save the day. Two horses were shot under him. Four bullets rent his uniform.¹³ But, crazed with fright, the Royal soldiers were beyond human control.

Only the Virginia rangers kept their heads and their courage. Obeying the shouted orders of their young commander, they threw themselves between the terror-stricken British and the savage victors; and, fighting behind trees and rocks, were an ever-moving rampart of fire that saved the flying remnants of the English troops. But for Washington and his rangers, Braddock's whole force would have been annihilated.¹⁴ Colonel Dunbar and his fifteen hundred British regulars, who had been left a short distance behind as a reserve, made off to Philadelphia as fast as their panic-winged feet could carry them.¹⁵

So everywhere went up the cry, "The British are beaten!" At first rumor had it that the whole force was destroyed, and that Washington had been killed in action.¹⁶ But soon another word followed hard upon this error – the word that the boyish Virginia captain and his rangers had fought with coolness, skill, and courage; that they alone had prevented the extinction of the British regulars; that they alone had come out of the conflict with honor and glory.

Thus it was that the American colonists suddenly came to think that they themselves must be their own defenders. It was a revelation, all the more impressive because it was so abrupt, unexpected, and dramatic, that the red-coated professional soldiers were not the unconquerable warriors the colonists had been told that they were.¹⁷ From colonial "mansion" to log cabin, from the provincial "capitals" to the mean and exposed frontier settlements, Braddock's defeat sowed the seed of the idea that Americans must depend upon themselves.¹⁸

As Bacon's Rebellion at Jamestown, exactly one hundred years before Independence was declared at Philadelphia, was the beginning of the American Revolution in its first clear expression of popular rights,¹⁹ so Braddock's defeat was the inception of that same epoch in its lesson of American military self-dependence.²⁰ Down to Concord and Lexington, Great Bridge and Bunker Hill, the overthrow of the King's troops on the Monongahela in 1755 was a theme of common talk among men, a household legend on which American mothers brought up their children.²¹

Close upon the heels of this epoch-making event, John Marshall came into the world. He was born in a little log cabin in the southern part of what now is Fauquier County, Virginia (then a part of Prince William), on September 24, 1755,²² eleven weeks after Braddock's defeat. The Marshall cabin stood about a mile and a half from a cluster of a dozen similar log structures built by a handful of German families whom Governor Spotswood had brought over to work his mines. This little settlement was known as Germantown, and was practically on the frontier.²³

Thomas Marshall, the father of John Marshall, was a close friend of Washington, whom he ardently admired. They were born in the same county, and their acquaintance had begun, apparently, in their boyhood.²⁴ Also, as will presently appear, Thomas Marshall had for about three years been the companion of Washington, when acting as his assistant in surveying the western part of the Fairfax estate.²⁵ From that time forward his attachment to Washington amounted to devotion.²⁶

Also, he was, like Washington, a fighting man.²⁷ It seems strange, therefore, that he did not accompany his hero in the Braddock expedition. There is, indeed, a legend that he did go part of the way.²⁸ But this, like so many stories concerning him, is untrue.²⁹ The careful roster, made by Washington of those under his command,³⁰ does not contain the name of Thomas Marshall either as officer or private. Because of their intimate association it is certain that Washington would not have overlooked him if he had been a member of that historic body of men.

So, while the father of John Marshall was not with his friend and leader at Braddock's defeat, no man watched that expedition with more care, awaited its outcome with keener anxiety, or was more affected by the news, than Thomas Marshall. Beneath no rooftree in all the colonies, except, perhaps, that of Washington's brother, could this capital event have made a deeper impression than in the tiny log house in the forests of Prince William County, where John Marshall, a few weeks afterwards, first saw the light of day.

Wars and rumors of wars, ever threatening danger, and stern, strong, quiet preparation to meet whatever befell – these made up the moral and intellectual atmosphere that surrounded the Marshall cabin before and after the coming of Thomas and Mary Marshall's first son. The earliest stories told this child of the frontier³¹ must have been those of daring and sacrifice and the prevailing that comes of them.

Almost from the home-made cradle John Marshall was taught the idea of American solidarity. Braddock's defeat, the most dramatic military event before the Revolution,³² was, as we have seen, the theme of fireside talk; and from this grew, in time, the conviction that Americans, if united,³³ could not only protect their homes from the savages and the French, but defeat, if need be, the British themselves.³⁴ So thought the Marshalls, father and mother; and so they taught their children, as subsequent events show.

It was a remarkable parentage that produced this child who in manhood was to become the master-builder of American Nationality. Curiously enough, it was exactly the same mingling of human elements that gave to the country that great apostle of the rights of man, Thomas Jefferson. Indeed, Jefferson's mother and Marshall's grandmother were first cousins. The mother of Thomas Jefferson was Jane Randolph, daughter of Isham Randolph of Turkey Island; and the mother of John Marshall was Mary Randolph Keith, the daughter of Mary Isham Randolph, whose father was Thomas Randolph of Tuckahoe, the brother of Jefferson's maternal grandfather.

Thus, Thomas Jefferson was the great-grandson and John Marshall the great-great-grandson of William Randolph and Mary Isham. Perhaps no other couple in American history is so remarkable for the number of distinguished descendants. Not only were they the ancestors of Thomas Jefferson and John Marshall, but also of "Light Horse Harry" Lee, of Revolutionary fame, Edmund Randolph, Washington's first Attorney-General, John Randolph of Roanoke, George Randolph, Secretary of War under the Confederate Government, and General Robert E. Lee, the great Southern military leader of the Civil War.³⁵

The Virginia Randolphs were one of the families of that proud colony who were of undoubted gentle descent, their line running clear and unbroken at least as far back as 1550. The Ishams were a somewhat older family, their lineage being well established to 1424. While knighthood was conferred upon one ancestor of Mary Isham, the Randolph and Isham families were of the same social stratum, both being of the English gentry.³⁶ The Virginia Randolphs were brilliant in mind, physically courageous, commanding in character, generally handsome in person, yet often as erratic as they were gifted.

When the gentle Randolph-Isham blood mingled with the sturdier currents of the common people, the result was a human product stronger, steadier, and abler than either. So, when Jane Randolph became the wife of Peter Jefferson, a man from the grass roots, the result was Thomas Jefferson. The union of a daughter of Mary Randolph with Thomas Marshall, a man of the soil and forests, produced John Marshall.³⁷

Physically and mentally, Peter Jefferson and Thomas Marshall were much alike. Both were powerful men of great stature. Both were endowed with rare intellectuality.³⁸ Both were hard-working, provident, and fearless. Even their occupations were the same: both were land surveyors. The chief difference between them was that, whereas Peter Jefferson appears to have been a hearty and convivial person,³⁹ Thomas Marshall seems to have been self-contained though adventurous, and of rather austere habits. Each became the leading man of his county⁴⁰ and both were chosen members of the House of Burgesses.⁴¹

On the paternal side, it is impossible to trace the origin of either Peter Jefferson⁴² or Thomas Marshall farther back than their respective great-grandfathers, without floundering, unavailingly, in genealogical quicksands.

Thomas Marshall was the son of a very small planter in Westmoreland County, Virginia. October 23, 1727, three years before Thomas was born, his father, John Marshall "of the forest," acquired by deed, from William Marshall of King and Queen County, two hundred acres of poor, low, marshy land located on Appomattox Creek.⁴³ Little as the value of land in Virginia then was, and continued to be for three quarters of a century afterwards,⁴⁴ this particular tract seems to have been of an especially inferior quality. The deed states that it is a part of twelve hundred acres which had been granted to "Jno. Washington & Thos. Pope, gents … & by them lost for want of seating."

Here John Marshall "of the forest"⁴⁵ lived until his death in 1752, and here on April 2, 1730, Thomas Marshall was born. During the quarter of a century that this John Marshall remained on his little farm, he had become possessed of several slaves, mostly, perhaps, by natural increase. By his will he bequeaths to his ten children and to his wife six negro men and women, ten negro boys and girls, and two negro children. In addition to "one negro fellow named Joe and one negro woman named Cate" he gives to his wife "one Gray mair named beauty and side saddle also six hogs also I leave her the use of my land During her widowhood, and afterwards to fall to my son Thomas Marshall and his heirs forever."⁴⁶ One year later the widow, Elizabeth Marshall, deeded half of this two hundred acres to her son Thomas Marshall.⁴⁷

Such was the environment of Thomas Marshall's birth, such the property, family, and station in life of his father. Beyond these facts, nothing positively is known of the ancestry of John Marshall on his father's side. Marshall himself traces it no further back than his grandfather. "My Father, Thomas Marshall, was the eldest son of John Marshall, who intermarried with a Miss Markham and whose parents migrated from Wales, and settled in the county of Westmoreland, in Virginia, where my Father was born."⁴⁸

It is probable, however, that Marshall's paternal great-grandfather was a carpenter of Westmoreland County. A Thomas Marshall, "carpenter," as he describes himself in his will, died in that county in 1704. He devised his land to his son William. A William Marshall of King and Queen County deeded to John Marshall "of the forest," for five shillings, the two hundred acres of land in Westmoreland County, as above stated.⁴⁹ The fair inference is that this William was the elder brother of John "of the forest" and that both were sons of Thomas the "carpenter."

Beyond his paternal grandfather or at furthest his great-grandfather, therefore, the ancestry of John Marshall, on his father's side, is lost in the fogs of uncertainty.⁵⁰ It is only positively known that his grandfather was of the common people and of moderate means.⁵¹

Concerning his paternal grandmother, nothing definitely is established except that she was Elizabeth Markham, daughter of Lewis Markham, once Sheriff of Westmoreland County.⁵²

John Marshall's lineage on his mother's side, however, is long, high, and free from doubt, not only through the Randolphs and Ishams, as we have seen, but through the Keiths. For his maternal grandfather was an Episcopal clergyman, James Keith, of the historic Scottish family of that name, who were hereditary Earls Marischal of Scotland. The Keiths had been soldiers for generations, some of them winning great renown.⁵³ One of them was James Keith, the Prussian field marshal and ablest of the officers of Frederick the Great.⁵⁴ James Keith, a younger son of this distinguished family, was destined for the Church;⁵⁵ but the martial blood flowing in his veins asserted itself and, in his youth, he also became a soldier, upholding with arms the cause of the Pretender. When that rebellion was crushed, he fled to Virginia, resumed his sacred calling, returned to England for orders, came back to Virginia⁵⁶ and during his remaining years performed his priestly duties with rare zeal and devotion.⁵⁷ The motto of the Keiths of Scotland was "Veritas Vincit," and John Marshall adopted it. During most of his life he wore an amethyst with the ancient Keith motto engraved upon it.⁵⁸

When past middle life the Scottish parson married Mary Isham Randolph,⁵⁹ granddaughter of William Randolph and Mary Isham. In 1754 their daughter, Mary Randolph Keith, married Thomas Marshall and became the mother of John Marshall. "My mother was named Mary Keith, she was the daughter of a clergyman, of the name of Keith, who migrated from Scotland and intermarried with a Miss Randolph of James River" is Marshall's comment on his maternal ancestry.⁶⁰

Not only was John Marshall's mother uncommonly well born, but she was more carefully educated than most Virginia women of that period.⁶¹ Her father received in Aberdeen the precise and methodical training of a Scottish college;⁶² and, as all parsons in the Virginia of that time were teachers, it is certain that he carefully instructed his daughter. He was a deeply religious man, especially in his latter years, – so much so, indeed, that there was in him a touch of mysticism; and the two marked qualities of his daughter, Mary, were deep piety and strong intellectuality. She had, too, all the physical hardiness of her Scottish ancestry, fortified by the active and useful labor which all Virginia women of her class at that time performed.

So Thomas Marshall and Mary Keith combined unusual qualities for the founding of a family. Great strength of mind both had, and powerful wills; and through the veins of both poured the blood of daring. Both were studious-minded, too, and husband and wife alike were seized of a passion for self-improvement as well as a determination to better their circumstances. It appears that Thomas Marshall was by nature religiously inclined;⁶³ and this made all the greater harmony between himself and his wife. The physical basis of both husband and wife seems to have been well-nigh perfect.

Fifteen children were the result of this union, every one of whom lived to maturity and almost all of whom rounded out a ripe old age. Every one of them led an honorable and successful life. Nearly all strongly impressed themselves upon the community in which they lived.

It was a peculiar society of which this prolific and virile family formed a part, and its surroundings were as strange as the society itself. Nearly all of Virginia at that time was wilderness,⁶⁴ if we look upon it with the eyes of to-day. The cultivated parts were given over almost entirely to the raising of tobacco, which soon drew from the soil its virgin strength; and the land thus exhausted usually was abandoned to the forest, which again soon covered it. No use was made of the commonest and most obvious fertilizing materials and methods; new spaces were simply cleared.⁶⁵ Thus came a happy-go-lucky improvidence of habits and character.

This shiftlessness was encouraged by the vast extent of unused and unoccupied domain. Land was so cheap that riches measured by that basis of all wealth had to be counted in terms of thousands and tens of thousands of acres.⁶⁶ Slavery was an even more powerful force making for a kind of lofty disdain of physical toil among the white people.⁶⁷ Black slaves were almost as numerous as white free men.⁶⁸ On the great plantations the negro quarters assumed the proportions of villages;⁶⁹ and the masters of these extensive holdings were by example the arbiters of habits and manners to the whole social and industrial life of the colony. While an occasional great planter was methodical and industrious,⁷⁰ careful and systematic methods were rare. Manual labor was, to most of these lords of circumstance, not only unnecessary but degrading. To do no physical work that could be avoided on the one hand, and on the other hand, to own as many slaves as possible, was, generally, the ideal of members of the first estate.⁷¹ This spread to the classes below, until it became a common ambition of white men throughout the Old Dominion.

While contemporary travelers are unanimous upon this peculiar aspect of social and economic conditions in old Virginia, the vivid picture drawn by Thomas Jefferson is still more convincing. "The whole commerce between master and slave," writes Jefferson, "is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this and learn to imitate it… Thus nursed, educated, and daily exercised in tyranny … the man must be a prodigy who can retain his manners and morals undepraved… With the morals of the people their industry also is destroyed. For in a warm climate, no man will labour for himself who can make another labour for him… Of the proprietors of slaves a very small proportion indeed are ever seen to labour."⁷²

Two years after he wrote his "Notes on Virginia" Jefferson emphasized his estimate of Virginia society. "I have thought them [Virginians] as you found them," he writes Chastellux, "aristocratical, pompous, clannish, indolent, hospitable … careless of their interests, … thoughtless in their expenses and in all their transactions of business." He again ascribes many of these characteristics to "that warmth of their climate which unnerves and unmans both body and mind."⁷³

From this soil sprang a growth of habits as noxious as it was luxuriant. Amusements to break the monotony of unemployed daily existence took the form of horse-racing, cock-fighting, and gambling.⁷⁴ Drinking and all attendant dissipations were universal and extreme;⁷⁵ this, however, was the case in all the colonies.⁷⁶ Bishop Meade tells us that even the clergy indulged in the prevailing customs to the neglect of their sacred calling; and the church itself was all but abandoned in the disrepute which the conduct of its ministers brought upon the house of God.⁷⁷

Yet the higher classes of colonial Virginians were keen for the education of their children, or at least of their male offspring.⁷⁸ The sons of the wealthiest planters often were sent to England or Scotland to be educated, and these, not infrequently, became graduates of Oxford, Cambridge, and Edinburgh.⁷⁹ Others of this class were instructed by private tutors.⁸⁰ Also a sort of scanty and fugitive public instruction was given in rude cabins, generally located in abandoned fields. These were called the Old Field Schools.⁸¹

More than forty per cent of the men who made deeds or served on juries could not sign their names, although they were of the land-owning and better educated classes;⁸² the literacy of the masses, especially that of the women,⁸³ was, of course, much lower.

An eager desire, among the "quality," for reading brought a considerable number of books to the homes of those who could afford that luxury.⁸⁴ A few libraries were of respectable size and two or three were very large. Robert Carter had over fifteen hundred volumes,⁸⁵ many of which were in Latin and Greek, and some in French.⁸⁶ William Byrd collected at Westover more than four thousand books in half a dozen languages.⁸⁷ But the Carter and Byrd libraries were, of course, exceptions. Byrd's library was the greatest, not only in Virginia, but in all the colonies, except that of John Adams, which was equally extensive and varied.⁸⁸

Doubtless the leisure and wealth of the gentry, created by the peculiar economic conditions of the Old Dominion, sharpened this appetite for literature and afforded to the wealthy time and material for the gratification of it. The passion for reading and discussion persisted, and became as notable a characteristic of Virginians as was their dislike for physical labor, their excessive drinking, and their love of strenuous sport and rough diversion.

There were three social orders or strata, all contemporary observers agree, into which Virginians were divided; but they merged into one another so that the exact dividing line was not clear.⁸⁹ First, of course, came the aristocracy of the immense plantations. While the social and political dominance of this class was based on wealth, yet some of its members were derived from the English gentry, with, perhaps, an occasional one from a noble family in the mother country.⁹⁰ Many, however, were English merchants or their sons.⁹¹ It appears, also, that the boldest and thriftiest of the early Virginia settlers, whom the British Government exiled for political offenses, acquired extensive possessions, became large slave-owners, and men of importance and position. So did some who were indentured servants;⁹² and, indeed, an occasional transported convict rose to prominence.⁹³

But the genuine though small aristocratic element gave tone and color to colonial Virginia society. All, except the "poor whites," looked to this supreme group for ideals and for standards of manners and conduct. "People of fortune … are the pattern of all behaviour here," testifies Fithian of New Jersey, tutor in the Carter household.⁹⁴ Also, it was, of course, the natural ambition of wealthy planters and those who expected to become such to imitate the life of the English higher classes. This was much truer in Virginia than in any other colony; for she had been more faithful to the Crown and to the royal ideal than had her sisters. Thus it was that the Old Dominion developed a distinctively aristocratic and chivalrous social atmosphere peculiar to herself,⁹⁵ as Jefferson testifies.

Next to the dominant class came the lesser planters. These corresponded to the yeomanry of the mother country; and most of them were from the English trading classes.⁹⁶ They owned little holdings of land from a few hundred to a thousand and even two thousand acres; and each of these inconsiderable landlords acquired a few slaves in proportion to his limited estate. It is possible that a scanty number of this middle class were as well born as the best born of the little nucleus of the genuine aristocracy; these were the younger sons of great English houses to whom the law of primogeniture denied equal opportunity in life with the elder brother. So it came to pass that the upper reaches of the second estate in the social and industrial Virginia of that time merged into the highest class.

At the bottom of the scale, of course, came the poverty-stricken whites. In eastern Virginia this was the class known as the "poor whites"; and it was more distinct than either of the two classes above it. These "poor whites" lived in squalor, and without the aspirations or virtues of the superior orders. They carried to the extreme the examples of idleness given them by those in higher station, and coarsened their vices to the point of brutality.⁹⁷ Near this social stratum, though not a part of it, were classed the upland settlers, who were poor people, but highly self-respecting and of sturdy stock.

Into this structure of Virginia society Fate began to weave a new and alien thread about the time that Thomas Marshall took his young bride to the log cabin in the woods of Prince William County where their first child was born. In the back country bordering the mountains appeared the scattered huts of the pioneers. The strong character of this element of Virginia's population is well known, and its coming profoundly influenced for generations the political, social, industrial, and military history of that section. They were jealous of their "rights," impatient of restraint, wherever they felt it, and this was seldom. Indeed, the solitariness of their lives, and the utter self-dependence which this forced upon them, made them none too tolerant of law in any form.

These outpost settlers furnished most of that class so well known to our history by the term "backwoodsmen," and yet so little understood. For the heroism, the sacrifice, and the suffering of this "advance guard of civilization" have been pictured by laudatory writers to the exclusion of its other and less admirable qualities. Yet it was these latter characteristics that played so important a part in that critical period of our history between the surrender of the British at Yorktown and the adoption of the Constitution, and in that still more fateful time when the success of the great experiment of making out of an inchoate democracy a strong, orderly, independent, and self-respecting nation was in the balance.

These American backwoodsmen, as described by contemporary writers who studied them personally, pushed beyond the inhabited districts to get land and make homes more easily. This was their underlying purpose; but a fierce individualism, impatient even of those light and vague social restraints which the existence of near-by neighbors creates, was a sharper spur.⁹⁸ Through both of these motives, too, ran the spirit of mingled lawlessness and adventure. The physical surroundings of the backwoodsman nourished the non-social elements of his character. The log cabin built, the surrounding patch of clearing made, the seed planted for a crop of cereals only large enough to supply the household needs – these almost ended the backwoodsman's agricultural activities and the habits of regular industry which farming requires.

While his meager crops were coming on, the backwoodsman must supply his family with food from the stream and forest. The Indians had not yet retreated so far, nor were their atrocities so remote, that fear of them had ceased;⁹⁹ and the eye of the backwoodsman was ever keen for a savage human foe as well as for wild animals. Thus he became a man of the rifle,¹⁰⁰ a creature of the forests, a dweller amid great silences, self-reliant, suspicious, non-social, and almost as savage as his surroundings.¹⁰¹

But among them sometimes appeared families which sternly held to high purposes, orderly habits, and methodical industry;¹⁰² and which clung to moral and religious ideals and practices with greater tenacity than ever, because of the very difficulties of their situation. These chosen families naturally became the backbone of the frontier; and from them came the strong men of the advanced settlements.

Such a figure among the backwoodsmen was Thomas Marshall. Himself a product of the settlements on the tidewater, he yet was the personification of that spirit of American advance and enterprise which led this son of the Potomac lowlands ever and ever westward until he ended his days in the heart of Kentucky hundreds of miles through the savage wilderness from the spot where, as a young man, he built his first cabin home.

This, then, was the strange mingling of human elements that made up Virginia society during the middle decades of the eighteenth century – a society peculiar to the Old Dominion and unlike that of any other place or time. For the most part, it was idle and dissipated, yet also hospitable and spirited, and, among the upper classes, keenly intelligent and generously educated. When we read of the heavy drinking of whiskey, brandy, rum, and heady wine; of the general indolence, broken chiefly by fox-hunting and horse-racing, among the quality; of the coarser sport of cock-fighting shared in common by landed gentry and those of baser condition, and of the eagerness for physical encounter which seems to have pervaded the whole white population,¹⁰³ we wonder at the greatness of mind and soul which grew from such a social soil.

Yet out of it sprang a group of men who for ability, character, spirit, and purpose, are not outshone and have no precise counterpart in any other company of illustrious characters appearing in like space of time and similar extent of territory. At almost the same point of time, historically speaking, – within thirty years, to be exact, – and on the same spot, geographically speaking, – within a radius of a hundred miles, – George Mason, James Madison, Patrick Henry, Thomas Jefferson, John Marshall, and George Washington were born. The life stories of these men largely make up the history of their country while they lived; and it was chiefly their words and works, their thought and purposes, that gave form and direction, on American soil, to those political and social forces which are still working out the destiny of the American people.

CHAPTER II
A FRONTIER EDUCATION

 
"Come to me," quoth the pine tree,
"I am the giver of honor."
 

(Emerson.)

I do not think the greatest things have been done for the world by its bookmen. Education is not the chips of arithmetic and grammar. (Wendell Phillips.)

John Marshall was never out of the simple, crude environment of the near frontier for longer than one brief space of a few months until his twentieth year, when, as lieutenant of the famous Culpeper Minute Men, he marched away to battle. The life he had led during this period strengthened that powerful physical equipment which no strain of his later years seemed to impair; and helped to establish that extraordinary nervous equilibrium which no excitement or contest ever was able to unbalance.¹⁰⁴ This foundation part of his life was even more influential on the forming mind and spiritual outlook of the growing youth.

Thomas Marshall left the little farm of poor land in Westmoreland County not long after the death of his father, John Marshall "of the forest." This ancestral "estate" had no attractions for the enterprising young man. Indeed, there is reason for thinking that he abandoned it.¹⁰⁵ He lifted his first rooftree in what then were still the wilds of Prince William County.¹⁰⁶ There we find him with his young wife, and there in the red year of British disaster his eldest son was born. The cabin has long since disappeared, and only a rude monument of native stone, erected by college students in recent years, now marks the supposed site of this historic birthplace.

The spot is a placid, slumberous countryside. A small stream runs hard by. In the near distance still stands one of the original cabins of Spotswood's Germans.¹⁰⁷ But the soil is not generous. When Thomas Marshall settled there the little watercourse at the foot of the gentle slope on which his cabin stood doubtless ran bank-full; for in 1754 the forests remained thick and unviolated about his cabin,¹⁰⁸ and fed the waters from the heavy rains in restrained and steady flow to creek and river channels. Amidst these surroundings four children of Thomas Marshall and Mary Keith were born.¹⁰⁹

The sturdy young pioneer was not content to remain permanently at Germantown. A few years later found him building another home about thirty miles farther westward, in a valley in the Blue Ridge Mountains.¹¹⁰ Here the elder son spent the critical space of life from childhood to his eighteenth year. This little building still stands, occupied by negroes employed on the estate of which it forms a part. The view from it even now is attractive; and in the days of John Marshall's youth must have been very beautiful.

The house is placed on a slight rise of ground on the eastern edge of the valley. Near by, to the south and closer still to the west, two rapid mountain streams sing their quieting, restful song. On all sides the Blue Ridge lifts the modest heights of its purple hills. This valley at that time was called "The Hollow," and justly so; for it is but a cup in the lazy and unambitious mountains. When the eldest son first saw this frontier home, great trees thickly covered mountain, hill, and glade, and surrounded the meadow, which the Marshall dwelling overlooked, with a wall of inviting green.¹¹¹

Two days by the very lowest reckoning it must have taken Thomas Marshall to remove his family to this new abode. It is more likely that three or four days were consumed in the toilsome task. The very careful maps of the British survey at that time show only three roads in all immense Prince William County.¹¹² On one of these the Marshalls might have made their way northward, and on another, which it probably joined, they could have traveled westward. But these trails were primitive and extremely difficult for any kind of vehicle.¹¹³

Some time before 1765, then, rational imagination can picture a strong, rude wagon drawn by two horses crawling along the stumpy, rock-roughened, and mud-mired road through the dense woods that led in the direction of "The Hollow." In the wagon sat a young woman.¹¹⁴ By her side a sturdy, red-cheeked boy looked out with alert but quiet interest showing from his brilliant black eyes; and three other children cried their delight or vexation as the hours wore on. In this wagon, too, were piled the little family's household goods; nor did this make a heavy load, for all the Lares and Penates of a frontier settler's family in 1760 would not fill a single room of a moderately furnished household in the present day.

By the side of the wagon strode a young man dressed in the costume of the frontier. Tall, broad-shouldered, lithe-hipped, erect, he was a very oak of a man. His splendid head was carried with a peculiar dignity; and the grave but kindly command that shone from his face, together with the brooding thoughtfulness and fearless light of his striking eyes, would have singled him out in any assemblage as a man to be respected and trusted. A negro drove the team, and a negro girl walked behind.¹¹⁵

So went the Marshalls to their Blue Ridge home. It was a commodious one for those days. Two rooms downstairs, one fifteen feet by sixteen, the other twelve by fourteen, and above two half-story lofts of the same dimensions, constituted this domestic castle. At one end of the larger downstairs room is a broad and deep stone fireplace, and from this rises a big chimney of the same material, supporting the house on the outside.¹¹⁶

Thomas and Mary Marshall's pride and aspiration, as well as their social importance among the settlers, are strongly shown by this frontier dwelling. Unlike those of most of the other backwoodsmen, it was not a log cabin, but a frame house built of whip-sawed uprights and boards.¹¹⁷ It was perhaps easier to construct a one and a half story house with such materials; for to lift heavy timbers to such a height required great effort.¹¹⁸ But Thomas Marshall's social, religious, and political status¹¹⁹ in the newly organized County of Fauquier were the leading influences that induced him to build a house which, for the time and place, was so pretentious. A small stone "meat house," a one-room log cabin for his two negroes, and a log stable, completed the establishment.

In such an abode, and amidst such surroundings, the fast-growing family¹²⁰ of Thomas Marshall lived for more than twelve years. At first neighbors were few and distant. The nearest settlements were at Warrenton, some twenty-three miles to the eastward, and Winchester, a little farther over the mountains to the west.¹²¹ But, with the horror of Braddock's defeat subdued by the widespread and decisive counter victories, settlers began to come into the country on both sides of the Blue Ridge. These were comparatively small farmers, who, later on, became raisers of wheat, corn, and other cereals, rather than tobacco.

Not until John Marshall had passed his early boyhood, however, did these settlers become sufficiently numerous to form even a scattered community, and his early years were enlivened with no child companionship except that of his younger brothers and sisters. For the most part his days were spent, rifle in hand, in the surrounding mountains, and by the pleasant waters that flowed through the valley of his forest home. He helped his mother, of course, with her many labors, did the innumerable chores which the day's work required, and looked after the younger children, as the eldest child always must do. To his brothers and sisters as well as to his parents, he was devoted with a tenderness peculiar to his uncommonly affectionate nature and they, in turn, "fairly idolized" him.¹²²

There were few of those minor conveniences which we to-day consider the most indispensable of the simplest necessities. John Marshall's mother, like most other women of that region and period, seldom had such things as pins; in place of them use was made of thorns plucked from the bushes in the woods.¹²³ The fare, naturally, was simple and primitive. Game from the forest and fish from the stream were the principal articles of diet. Bear meat was plentiful.¹²⁴ Even at that early period, salt pork and salt fish probably formed a part of the family's food, though not to the extent to which such cured provisions were used by those of the back country in later years, when these articles became the staple of the border.¹²⁵

Corn meal was the basis of the family's bread supply. Even this was not always at hand, and corn meal mush was welcomed with a shout by the clamorous brood with which the little cabin soon fairly swarmed. It could not have been possible for the Marshall family in their house on Goose Creek to have the luxury of bread made from wheat flour. The clothing of the family was mostly homespun. "Store goods," whether food, fabric, or utensil, could be got to Thomas Marshall's backwoods dwelling only with great difficulty and at prohibitive expense.¹²⁶

But young John Marshall did not know that he was missing anything. On the contrary, he was conscious of a certain wealth not found in cities or among the currents of motion. For ever his eye looked out upon noble yet quieting, poetic yet placid, surroundings. Always he could have the inspiring views from the neighboring heights, the majestic stillness of the woods, the soothing music of meadow and stream. So uplifted was the boy by the glory of the mountains at daybreak that he always rose while the eastern sky was yet gray.¹²⁷ He was thrilled by the splendor of sunset and never tired of watching it until night fell upon the vast and somber forests. For the boy was charged with poetic enthusiasm, it appears, and the reading of poetry became his chief delight in youth and continued to be his solace and comfort throughout his long life;¹²⁸ indeed, Marshall liked to make verses himself, and never outgrew the habit.

There was in him a rich vein of romance; and, later on, this manifested itself by his passion for the great creations of fiction. Throughout his days he would turn to the works of favorite novelists for relaxation and renewal.¹²⁹

The mental and spiritual effects of his surroundings on the forming mind and unfolding soul of this young American must have been as lasting and profound as were the physical effects on his body.¹³⁰ His environment and his normal, wholesome daily activities could not have failed to do its work in building the character of the growing boy. These and his sound, steady, and uncommonly strong parentage must, perforce, have helped to give him that courage for action, that balanced vision for judgment, and that serene outlook on life and its problems, which were so notable and distinguished in his mature and rugged manhood.

Lucky for John Marshall and this country that he was not city born and bred; lucky that not even the small social activities of a country town drained away a single ohm of his nervous energy or obscured with lesser pictures the large panorama which accustomed his developing intelligence to look upon big and simple things in a big and simple way.

There were then no public schools in that frontier¹³¹ region, and young Marshall went untaught save for the instruction his parents gave him. For this task his father was unusually well equipped, though not by any formal schooling. All accounts agree that Thomas Marshall, while not a man of any learning, had contrived to acquire a useful though limited education, which went much further with a man of his well-ordered mind and determined will than a university training could go with a man of looser fiber and cast in smaller mould. The father was careful, painstaking, and persistent in imparting to his children and particularly to John all the education he himself could acquire.

Between Thomas Marshall and his eldest son a mutual sympathy, respect, and admiration existed, as uncommon as it was wholesome and beneficial. "My father," often said John Marshall, "was a far abler man than any of his sons."¹³² In "his private and familiar conversations with me," says Justice Story, "when there was no other listener … he never named his father … without dwelling on his character with a fond and winning enthusiasm … he broke out with a spontaneous eloquence … upon his virtues and talents."¹³³ Justice Story wrote a sketch of Marshall for the "National Portrait Gallery," in which Thomas Marshall is highly praised. In acknowledging the receipt of the magazine, Marshall wrote: "I am particularly gratified by the terms in which you speak of my father. If any contemporary, who knew him in the prime of manhood, survived, he would confirm all you say."¹³⁴

So whether at home with his mother or on surveying trips with his father, the boy continually was under the influence and direction of hardy, clear-minded, unusual parents. Their lofty and simple ideals, their rational thinking, their unbending uprightness, their religious convictions – these were the intellectual companions of John Marshall's childhood and youth. While too much credit has not been given Thomas Marshall for the training of the eldest son, far too little has been bestowed on Mary Randolph Keith, who was, in all things, the equal of her husband.

Although, as we have seen, many books were brought into eastern Virginia by the rich planters, it was difficult for the dwellers on the frontier to secure any reading material. Most books had to be imported, were very expensive, and, in the back country, there were no local sources of supply where they could be purchased. Also, the frontier settlers had neither the leisure nor, it appears, the desire for reading¹³⁵ that distinguished the wealthy landlords of the older parts of the colony.¹³⁶ Thomas Marshall, however, was an exception to his class in his eagerness for the knowledge to be gathered from books and in his determination that his children should have those advantages which reading gives.

So, while his small house in "The Hollow" of the Blue Ridge probably contained not many more books than children, yet such volumes as were on that frontier bookshelf were absorbed and made the intellectual possession of the reader. The Bible was there, of course; and probably Shakespeare also.¹³⁷ The only book which positively is known to have been a literary companion of John Marshall was a volume of Pope's poems. He told Justice Story that, by the time he was twelve years old (1767), he had copied every word of the "Essay on Man" and other of Pope's moral essays, and had committed to memory "many of the most interesting passages."¹³⁸ This would seem to prove that not many other attractive books were at the boyhood hands of so eager a reader of poetry and fiction as Marshall always was. It was quite natural that this volume should be in that primitive household; for, at that time, Pope was more widely read, admired, and quoted than any other writer either of poetry or prose.¹³⁹

For those who believe that early impressions are important, and who wish to trace John Marshall's mental development back to its sources, it is well to spend a moment on that curious work which Pope named his "Essay on Man." The natural bent of the youth's mind was distinctively logical and orderly, and Pope's metred syllogisms could not but have appealed to it powerfully. The soul of Pope's "Essay" is the wisdom of and necessity for order; and it is plain that the boy absorbed this vital message and made it his own. Certain it is that even as a beardless young soldier, offering his life for his country's independence, he already had grasped the master truth that order is a necessary condition of liberty and justice.

It seems probable, however, that other books were brought to this mountain fireside. There was a limited store within his reach from which Thomas Marshall could draw. With his employer and friend, George Washington,¹⁴⁰ he was often a visitor at the wilderness home of Lord Fairfax just over the Blue Ridge. Washington availed himself of the Fairfax Library,¹⁴¹ and it seems reasonable that Thomas Marshall did the same. It is likely that he carried to his Blue Ridge dwelling an occasional Fairfax volume carefully selected for its usefulness in developing his own as well as his children's minds.

This contact with the self-expatriated nobleman had more important results, however, than access to his books. Thomas Marshall's life was profoundly influenced by his early and intimate companionship with the well-mannered though impetuous and headstrong young Washington, who engaged him as assistant surveyor of the Fairfax estate.¹⁴² From youth to manhood, both had close association with Lord Fairfax, who gave Washington his first employment and secured for him the appointment by the colonial authorities as public surveyor.¹⁴³ Washington was related by marriage to the proprietor of the Northern Neck, his brother Lawrence having married the daughter of William Fairfax. When their father died, Lawrence Washington took the place of parent to his younger brother;¹⁴⁴ and in his house the great landowner met George Washington, of whom he became very fond. For more than three years the youthful surveyor passed most of his time in the Blue Ridge part of the British nobleman's vast holdings,¹⁴⁵ and in frequent and intimate contact with his employer. Thus Thomas Marshall, as Washington's associate and helper, came under the guidance and example of Lord Fairfax.

CHAPTER III
A SOLDIER OF THE REVOLUTION

Our liberties are at stake. It is time to brighten our fire-arms and learn to use them in the field. (Marshall to Culpeper Minute Men, 1775.)

Our sick naked, and well naked, our unfortunate men in captivity naked. (Washington, 1777.)

I have seen a regiment consisting of thirty men and a company of one corporal. (Von Steuben, 1778.)

The fighting men of the up counties lost not a minute's time. Blood had been shed in New England; blood, they knew, must soon flow in Virginia. At once Culpeper, Orange, and Fauquier Counties arranged to raise a regiment of minute men with Lawrence Taliaferro of Orange as colonel, Edward Stevens of Culpeper as lieutenant, Thomas Marshall of Fauquier as major.²¹⁷ Out over the countryside went the word; and from mountain cabins and huts in forest clearings, from log abodes in secluded valleys and on primitive farms, the fighting yeomanry of northern Virginia came forth in answer.

In the years between Patrick Henry's two epochal appeals in 1765 and 1775, all Virginia, but particularly the back country, had been getting ready to make answer in terms of rifle and lead. "No man should scruple, or hesitate a moment, to use arms," wrote Washington in 1769.²¹⁸ Thomas Marshall's minister, Mr. Thompson, preached militant preparation; Parliament had deprived the colonists of "their just and legal rights" by acts which were "destructive of their liberties," thundered the parson; it had "overawed the inhabitants by British troops," loaded "great hardships" upon the people, and "reduced the poor to great want." The preacher exhorted his flock "as men and Christians" to help "supply the country with arms and ammunition," and referred his hearers, for specific information, to "the committee of this county,"²¹⁹ whose head undoubtedly was their Burgess and leading vestryman of the parish, Thomas Marshall.

When news of Concord and Lexington finally trickled through to upper Virginia, it found the men of her hills and mountains in grim readiness; and when, soon after, Henry's flaming words came to them, they were ready and eager to make those words good with their lives. John Marshall, of course, was one of the band of youths who had agreed to make up a company if trouble came. In May, 1775, these young frontiersmen were called together. Their captain did not come, and Marshall was appointed lieutenant, "instead of a better," as he modestly told his comrades. But, for his years, "a better" could not have been found; since 1773 John Marshall had received careful military instruction from his father.²²⁰ Indeed, during the two years before his company took the field in actual warfare, the youth had devoted most of his time to preparing himself, by study and practice, for military service.²²¹ So these embryo warriors gathered about their leader to be told what to do.²²²

Here we get the first glimpse of John Marshall's power over men. "He had come," the young officer informed his comrades of the backwoods, "to meet them as fellow soldiers, who were likely to be called on to defend their country." Their own "rights and liberties" were at stake. Their brothers in New England had fought and beaten the British; now "it is time to brighten our fire-arms and learn to use them in the field." He would show them how to do this. So the boys fell into line, and John Marshall, bringing his own gun to his shoulder, instructed them in the manual of arms. He first gave the words of command slowly and distinctly and then illustrated the movements with his own rifle so that every man of the company might clearly understand what each order meant and how to execute it. He then put the company through the drill.²²³

On this muster field we learn how John Marshall looked in his nineteenth year. He was very tall, six feet at least, slender and erect. His complexion was dark, with a faint tinge of red. His face was round – "nearly a circle." His forehead was straight and low, and thick, strong, "raven black" hair covered his head. Intense eyes "dark to blackness,"²²⁴ of compelling power, pierced the beholder while they reassured him by the good nature which shone from them. "He wore a purple or pale blue hunting-shirt, and trousers of the same material fringed with white."²²⁵

At this point, too, we first learn of his bent for oratory. What his father told him about the debates in the House of Burgesses, the speeches of Wythe and Lee and Randolph, and above all, Patrick Henry; what he had dreamed and perhaps practiced in the silent forests and vacant fields, here now bore public fruit. When he thought that he had drilled his company enough for the time being, Marshall told them to fall out, and, if they wished to hear more about the war, to gather around him and he would make them a speech.²²⁶ And make them a speech he did. Before his men the youthful lieutenant stood, in his hand his "round black hat mounted with a buck's tail for a cockade," and spoke to that company of country boys of the justice of their cause and of those larger things in life for which all true men are glad to die.

"For something like an hour" he spoke, his round face glowing, the dormant lightning of his eye for the time unloosed. Lively words they were, we may be sure; for John Marshall was as ardent a patriot as the colonies could produce. He had learned the elementary truths of liberty in the school of the frontier; his soul was on fire with the burning words of Henry; and he poured forth his immature eloquence not to a company of peaceful theorists, but to a group of youths ready for the field. Its premises were freedom and independence; its conclusion was action. It was a battle speech.²²⁷ This fact is very important to an understanding of John Marshall's character, and indeed of the blood that flowed in his veins. For, as we shall find, he was always on the firing line; the Marshall blood was fighting blood.²²⁸

But it was not all labor of drill and toil of discipline, heroics of patriotic speech, or solemn preachments about duty, for the youths of John Marshall's company. If he was the most earnest, he was also, it seems, the jolliest person in the whole band; and this deserves especial note, for his humor was a quality which served not only the young soldier himself, but the cause for which he fought almost as well as his valor itself, in the martial years into which he was entering. Indeed this capacity for leavening the dough of serious purpose with the yeast of humor and diversion made John Marshall's entire personal life wholesome and nutritious. Jokes and fun were a part of him, as we shall see, whether in the army, at the bar, or on the bench.

So when, the business of the day disposed of, Lieutenant Marshall challenged his sure-eyed, strong-limbed, swift-footed companions to a game of quoits, or to run a race, or to jump a pole, we find him practicing that sport and comradeship which, luckily for himself and his country, he never outgrew. Pitch quoits, then, these would-be soldiers did, and coursed their races, and vaulted high in their running jumps.²²⁹ Faster than any of them could their commander run, with his long legs out-going and his powerful lungs out-winding the best of them. He could jump higher, too, than anybody else; and from this accomplishment he got his soldier nickname "Silver Heels" in Washington's army a year later.²³⁰

The final muster of the Culpeper Minute Men was in "Major Clayton's old field" hard by the county seat²³¹ on September 1, 1775.²³² They were clad in the uniform of the frontier, which indeed was little different from their daily apparel. Fringed trousers often of deerskins, "strong brown linen hunting-shirts dyed with leaves, … buck-tails in each hat, and a leather belt about the shoulders, with tomahawk and scalping-knife" made up their warlike costume.²³³ By some preconcert, – an order perhaps from one of the three superior officers who had poetic as well as fighting blood in him, – the mothers and wives of this wilderness soldiery had worked on the breast of each hunting-shirt in large white letters the words "Liberty or Death,"²³⁴ with which Patrick Henry had trumpeted the purpose of hitherto inarticulate America.

Early in the autumn of 1775 came the expected call. Not long had the "shirt men,"²³⁵ as they were styled, been drilling near the court-house of Culpeper County when an "express" came from Patrick Henry.²³⁶ This was a rider from Williamsburg, mounting swift relays as he went, sometimes over the rough, miry, and hazardous roads, but mostly by the bridle paths which then were Virginia's principal highways of land travel. The "express" told of the threatening preparations of Lord Dunmore, then Royal Governor of Virginia, and bore Patrick Henry's command to march at once for the scene of action a hundred miles to the south.

Instantly the Culpeper Minute Men were on the move. "We marched immediately," wrote one of them, "and in a few days were in Williamsburg." News of their coming went before them; and when the better-settled districts were reached, the inhabitants were in terror of them, for the Culpeper Minute Men were considered as "savage backwoodsmen" by the people of these older communities.²³⁷ And indeed they must have looked the part, striding along armed to the teeth with the alarming weapons of the frontier,²³⁸ clad in the rough but picturesque war costume of the backwoods, their long hair falling behind, untied and unqueued.

When they reached Williamsburg half of the minute men were discharged, because they were not needed;²³⁹ but the other half, marching under Colonel Woodford, met and beat the enemy at Great Bridge, in the first fight of the Revolution in Virginia, the first armed conflict with British soldiers in the colonies since Bunker Hill. In this small but bloody battle, Thomas Marshall and his son took part.²⁴⁰

The country around Norfolk swarmed with Tories. Governor Dunmore had established martial law, proclaimed freedom of slaves, and summoned to the Royal standard everybody capable of bearing arms. He was busy fortifying Norfolk and mounting cannon upon the entrenchments. Hundreds of the newly emancipated negroes were laboring upon these fortifications. To keep back the patriots until this military work should be finished, the Governor, with a force of British regulars and all the fighting men whom he could gather, took up an almost impregnable position near Great Bridge, about twenty miles from Norfolk, "in a small fort on an oasis surrounded by a morass, not far from the Dismal Swamp, accessible on either side by a long causeway." Here Dunmore and the Loyalists awaited the Americans.²⁴¹

When the latter came up they made their camp "within gunshot of this post, in mud and mire, in a village at the southern end of the causeway." Across this the patriot volunteers threw a breastwork. But, having no cannon, they did not attack the British position. If only Dunmore would take the offensive, the Americans felt that they would win. Legend has it that through a stratagem of Thomas Marshall, the British assault was brought on. He instructed his servant to pretend to desert and mislead the Governor as to the numbers opposing him. Accordingly, Marshall's decoy sought the enemy's lines and told Dunmore that the insurgents numbered not more than three hundred. The Governor then ordered the British to charge and take the Virginians, "or die in the attempt."²⁴²

"Between daybreak and sunrise," Captain Fordyce, leading his grenadiers six abreast, swept across the causeway upon the American breastworks. Marshall himself tells us of the fight. The shots of the sentinels roused the little camp and "the bravest … rushed to the works," firing at will, to meet the British onset. The gallant Fordyce "fell dead within a few steps of the breastwork… Every grenadier … was killed or wounded; while the Americans did not lose a single man." Full one hundred of the British force laid down their lives that bloody December morning, among them four of the King's officers. Small as was this affair, – which was called "The Little Bunker Hill," – it was more terrible than most military conflicts in loss of life in proportion to the numbers engaged.²⁴³

This was John Marshall's first lesson²⁴⁴ in warfare upon the field of battle. Also, the incidents of Great Bridge, and what went before and came immediately after, gave the fledgling soldier his earliest knowledge of that bickering and conflict of authority that for the next four years he was to witness and experience in far more shocking and dangerous guise.²⁴⁵

Within a few months from the time he was haranguing his youthful companions in "Major Clayton's old field" in Culpeper County, John Marshall learned, in terms of blood and death and in the still more forbidding aspects of jealousy and dissension among the patriots themselves, that freedom and independence were not to be wooed and won merely by high-pitched enthusiasm or fervid speech. The young soldier in this brief time saw a flash of the great truth that liberty can be made a reality and then possessed only by men who are strong, courageous, unselfish, and wise enough to act unitedly as well as to fight bravely. He began to discern, though vaguely as yet, the supreme need of the organization of democracy.

After the victory at Great Bridge, Marshall, with the Culpeper Minute Men, marched to Norfolk, where he witnessed the "American soldiers frequently amuse themselves by firing" into Dunmore's vessels in the harbor; saw the exasperated Governor imprudently retaliate by setting the town on fire; and beheld for "several weeks" the burning of Virginia's metropolis.²⁴⁶ Marshall's battalion then marched to Suffolk, and was discharged in March, 1776.²⁴⁷

With this experience of what war meant, John Marshall could have returned to the safety of Oak Hill and have spent, at that pleasant fireside, the red years that were to follow, as indeed so many in the colonies who then and after merely prated of liberty, actually did. But it was not in the Marshall nature to support a cause with lip service only. Father and son chose the sterner part; and John Marshall was now about to be schooled for four years by grim instructors in the knowledge that strong and orderly government is necessary to effective liberty. He was to learn, in a hard and bitter school, the danger of provincialism and the value of Nationality.

Not for long did he tarry at the Fauquier County home; and not an instant did the father linger there. Thomas Marshall, while still serving with his command at Great Bridge, was appointed by the Legislature major of the Third Virginia Regiment; and at once entered the Continental service;²⁴⁸ on July 30, 1776, four months after the Culpeper Minute Men, their work finished, had been disbanded by the new State, his son was commissioned lieutenant in the same regiment. The fringed hunting-shirt and leggings, the buck-tail headgear, scalping-knife, and tomahawk of the backwoods warrior now gave place to the buff and blue uniform, the three-cornered hat,²⁴⁹ the sword, and the pistol of the Continental officer; and Major Thomas Marshall and his son, Lieutenant John Marshall, marched away to the north to join Washington, and under him to fight and suffer through four black and heart-breaking years of the Revolution.

It is needful, here, to get clearly in our minds the state of the American army at this time. What particular year of the Revolution was darkest up almost to the victorious end, it is hard to say. Studying each year separately one historian will conclude that 1776 sounded the depths of gloom; another plumbs still greater despair at Valley Forge; still another will prove that the bottom was not reached until '79 or '80. And all of them appear to be right.²⁵⁰

Even as early as January, 1776, when the war was new, and enthusiasm still warm, Washington wrote to the President of Congress, certain States having paid no attention to his application for arms: "I have, as the last expedient, sent one or two officers from each regiment into the country, with money to try if they can buy."²⁵¹ A little later he writes: "My situation has been such, that I have been obliged to use art to conceal it from my own officers."²⁵²

Congress even placed some of Washington's little army under the direction of the Committee of Safety of New York; and Washington thus wrote to that committee: "I should be glad to know how far it is conceived that my powers over them [the soldiers] extend, or whether I have any at all. Sure I am that they cannot be subjected to the direction of both"²⁵³ (the committee and himself).

In September the Commander-in-Chief wrote to the President of Congress that the terms of enlistment of a large portion of the army were about to expire, and that it was direful work "to be forming armies constantly, and to be left by troops just when they begin to deserve the name, or perhaps at a moment when an important blow is expected."²⁵⁴

Four days later Washington again told Congress, "beyond the possibility of doubt, … unless some speedy and effectual measures are adopted by Congress, our cause will be lost."²⁵⁵ On December 1, 1776, the army was "greatly reduced by the departure of the Maryland Flying Camp men, and by sundry other causes."²⁵⁶ A little afterwards General Greene wrote to Governor Cooke [of Rhode Island] that "two brigades left us at Brunswick, notwithstanding the enemy were within two hours' march and coming on."²⁵⁷

Thirteen days before the Christmas night that Washington crossed the Delaware and struck the British at Trenton, the distressed American commander found that "our little handful is daily decreasing by sickness and other causes."²⁵⁸ And the very day before that brilliant exploit, Washington was compelled to report that "but very few of the men have [re]enlisted" because of "their wishes to return home, the nonappointment of officers in some instances, the turning out of good and appointing of bad in others, and the incomplete or rather no arrangement of them, a work unhappily committed to the management of their States; nor have I the most distant prospect of retaining them … notwithstanding the most pressing solicitations and the obvious necessity for it." Washington informed Reed that he was left with only "fourteen to fifteen hundred effective men. This handful and such militia as may choose to join me will then compose our army."²⁵⁹ Such was American patriotic efficiency, as exhibited by "State Sovereignty," the day before the dramatic crossing of the Delaware.

A month earlier the general of this assemblage of shreds and patches had been forced to beg the various States for militia in order to get in "a number of men, if possible, to keep up the appearance of our army."²⁶⁰ And he writes to his brother Augustine of his grief and surprise to find "the different States so slow and inattentive… In ten days from this date there will not be above two thousand men, if that number, of the fixed established regiments, … to oppose Howe's whole army."²⁶¹

Throughout the war, the neglect and ineffectiveness of the States, even more than the humiliating powerlessness of Congress, time and again all but lost the American cause. The State militia came and went almost at will. "The impulse for going home was so irresistible, that it answered no purpose to oppose it. Though I would not discharge them," testifies Washington, "I have been obliged to acquiesce, and it affords one more melancholy proof, how delusive such dependencies [State controlled troops] are."²⁶²

"The Dependence, which the Congress have placed upon the militia," the distracted general complains to his brother, "has already greatly injured, and I fear will totally ruin our cause. Being subject to no controul themselves, they introduce disorder among the troops, whom you have attempted to discipline, while the change in their living brings on sickness; this makes them Impatient to get home, which spreads universally, and introduces abominable desertions. In short, it is not in the power of words to describe the task I have to act."²⁶³

Nor was this the worst. Washington thus pours out his soul to his nephew: "Great bodies of militia in pay that never were in camp; … immense quantities of provisions drawn by men that never rendered … one hour's service … every kind of military [discipline] destroyed by them… They [the militia] come without any conveniences and soon return. I discharged a regiment the other day that had in it fourteen rank and file fit for duty only… The subject … is not a fit one to be publicly known or discussed… I am wearied to death all day … at the conduct of the militia, whose behavior and want of discipline has done great injury to the other troops, who never had officers, except in a few instances, worth the bread they eat."²⁶⁴

Conditions did not improve in the following year, for we find Washington again writing to his brother of "militia, who are here today and gone tomorrow – whose way, like the ways of [Pr]ovidence, are almost inscrutable."²⁶⁵ Baron von Steuben testifies thus: "The eternal ebb and flow of men … who went and came every day, rendered it impossible to have either a regiment or company complete… I have seen a regiment consisting of thirty men and a company of one corporal."²⁶⁶ Even Thomas Paine, the arch-enemy of anything resembling a regular or "standing" army, finally declared that militia "will not do for a long campaign."²⁶⁷ Marshall thus describes the predicament in which Washington was placed by the inconstancy of this will-o'-the-wisp soldiery: "He was often abandoned by bodies of militia, before their places were filled by others… The soldiers carried off arms and blankets."²⁶⁸

Bad as the militia were,²⁶⁹ the States did not keep up even this happy-go-lucky branch of the army. "It is a matter of astonishment," savagely wrote Washington to the President of Pennsylvania, two months before Valley Forge, "to every part of the continent, to hear that Pennsylvania, the most opulent and populous of all the States, has but twelve hundred militia in the field, at a time when the enemy are endeavoring to make themselves completely masters of, and to fix their winter quarters in, her capital."²⁷⁰ Even in the Continental line, it appears, Pennsylvania's quota had "never been above one third full; and now many of them are far below even that."²⁷¹

Washington's wrath at Pennsylvania fairly blazed at this time, and the next day he wrote to Augustine Washington that "this State acts most infamously, the People of it, I mean, as we derive little or no assistance from them… They are in a manner, totally disaffected or in a kind of Lethargy."²⁷²

The head of the American forces was not the only patriot officer to complain. "The Pennsylvania Associators [militia] … are deserting … notwithstanding the most spirited exertions of their officers," reported General Livingston in the midsummer of 1776.²⁷³ General Lincoln and the Massachusetts Committee tried hard to keep the militia of the Bay State from going home; but, moaned Lee, "whether they will succeed, Heaven only knows."²⁷⁴

General Sullivan determined to quit the service because of abuse and ill-treatment.²⁷⁵ For the same reason Schuyler proposed to resign.²⁷⁶ These were not examples of pique; they denoted a general sentiment among officers who, in addition to their sufferings, beheld their future through none too darkened glasses. They "not only have the Mortification to See every thing live except themselves," wrote one minor officer in 1778, "but they see their private fortune wasting away to make fat those very Miscreants [speculators] … they See their Country … refuse to make any future provision for them, or even to give them the Necessary Supplies."²⁷⁷

Thousands of the Continentals were often practically naked; Chastellux found several hundred in an invalid camp, not because they were ill, but because "they were not covered even with rags."²⁷⁸ "Our sick naked, and well naked, our unfortunate men in captivity naked"! wailed Washington in 1777.²⁷⁹ Two days before Christmas of that year he informed Congress that, of the force then under his immediate command, nearly three thousand were "barefoot and otherwise naked."²⁸⁰ Sickness was general and appalling. Smallpox raged throughout the army even from the first.²⁸¹ "The Regimental Surgeons are immediately to make returns … of all the men in their Regiments, who have not had the small Pox,"²⁸² read the orders of the day just after New Year's Day, in 1778.

Six years after Concord and Lexington, three hundred American soldiers, in a body, wished to join the British.²⁸³ Stern measures were taken to prevent desertion and dishonesty and even to enforce the most ordinary duties of soldiers. "In the afternoon three of our regṭ were flogged; – 2 of them received one hundred lashes apiece for attempting to desert; the other received 80 for enlisting twice and taking two bounties,"²⁸⁴ Wild coolly enters in his diary. And again: "This afternoon one of our men was hanged on the grand parade for attempting to desert to the enemy";²⁸⁵ and "at 6 ock P.M. a soldier of Col. Gimatts Battalion was hanged."

Sleeping on duty meant "Twenty Lashes on … [the] bare back" of the careless sentry.²⁸⁶ A soldier convicted of "getting drunk & losing his Arms" was "Sentenc'd to receive 100 Lashes on his bare back, & pay for his Arms lost."²⁸⁷ A man who, in action, "turns his back on the Enemy" was ordered to be "instantly put … to Death" by the officers.²⁸⁸ At Yorktown in May, 1781, Wayne ordered a platoon to fire on twelve soldiers who were persuading their comrades not to march; six were killed and one wounded, who was, by Wayne's command, enforced by a cocked pistol, then finished with the bayonet thrust into the prostrate soldier by a comrade.²⁸⁹

Such was the rough handling practiced in the scanty and ill-treated army of individualists which Washington made shift to rally to the patriot colors.²⁹⁰ It was not an encouraging omen. But blacker still was the disorganizing effect of local control of the various "State Lines" which the pompous authority of the newborn "sovereign and independent" Commonwealths asserted.²⁹¹

Into this desperate confusion came the young Virginia lieutenant. Was this the manner of liberty? Was this the way a people fighting for their freedom confronted their enemy? The dreams he had dreamed, the visions he had seen back in his Virginia mountains were clad in glories as enchanting as the splendors of their tree-clad summits at break of day – dreams and visions for which strong men should be glad of the privilege of dying if thereby they might be won as realities for all the people. And indeed at this time, and in the even deadlier days that followed, young John Marshall found strong men by his side willing to die and to go through worse than death to make their great dream come true.

But why thus decrepit, the organization called the American army? Why this want of food even for such of the soldiers as were willing and eager to fight for their country? Why this scanty supply of arms? Why this avoidable sickness, this needless suffering, this frightful waste? What was the matter? Something surely was at fault. It must be in the power that assumed to direct the patriot army. But whence came that power? From Congress? No. Congress had no power; after a while, it did not even have influence. From the States? Yes; that was its source – there was plenty of power in the States.

But what kind of power, and how displayed? One State did one thing; another State did another thing.²⁹² One State clothed its troops well; another sent no supplies at all.²⁹³ One regiment of Maryland militia had no shirts and the men wrapped blankets about their bare bodies.²⁹⁴ One day State troops would come into camp, and the next day leave. How could war be conducted, how could battles be fought and won, through such freakish, uncertain power as that?

But how could this vaunted liberty, which orators had proclaimed and which Lieutenant Marshall himself had lauded to his frontier companions in arms, be achieved except by a well-organized army, equipped, supplied, and directed by a competent central Government? This was the talk common among the soldiers of the Continental establishment in which John Marshall was a lieutenant. In less than two years after he entered the regular service, even officers, driven to madness and despair by the pusillanimous weakness of Congress, openly denounced that body; and the soldiers themselves, who saw their wounds and sufferings coming to naught, cursed that sham and mockery which the jealousy and shallowness of State provincialism had set up in place of a National Government.²⁹⁵

All through the latter half of 1776, Lieutenant Marshall of the Third Virginia Regiment marched, suffered, retreated and advanced, and performed his duties without complaint. He did more. At this time, when, to keep up the sinking spirits of the men was almost as important as was ammunition, young Marshall was the soul of good humor and of cheer; and we shall find him in a few months heartening his starving and freezing comrades at Valley Forge with quip and jest, a center from which radiated good temper and a hopeful and happy warmth. When in camp Marshall was always for some game or sport, which he played with infinite zest. He was the best quoit-thrower in the regiment. His long legs left the others behind in foot-races or jumping contests.

So well did he perform his work, so highly did he impress his superior officers, that, early in December, 1776, he was promoted to be captain-lieutenant, to rank from July 31, and transferred to the Fifteenth Virginia Line.²⁹⁶ Thus he missed the glory of being one of that immortal company which on Christmas night, 1776, crossed the Delaware with Washington and fell upon the British at Trenton. His father, Major Thomas Marshall, shared in that renown;²⁹⁷ but the days ahead held for John Marshall his share of fighting in actual battle.

CHAPTER IV
VALLEY FORGE AND AFTER

Unless some great and capital change suddenly takes place … this army must inevitably starve, dissolve, or disperse. (Washington, Dec. 23, 1777.)

John Marshall was the best tempered man I ever knew. Nothing discouraged, nothing disturbed him. (Lieutenant Slaughter, of Marshall at Valley Forge.)

Gaunt and bitter swept down the winter of 1777. But the season brought no lean months to the soldiers of King George, no aloes to the Royal officers in fat and snug Philadelphia.³⁵⁵ It was a period of rest and safety for the red-coated privates in the city, where, during the preceding year, Liberty Bell had sounded its clamorous defiance; a time of revelry and merry-making for the officers of the Crown. Gay days chased nights still gayer, and weeks of social frolic made the winter pass like the scenes of a warm and glowing play.

For those who bore the King's commission there were balls at the City Tavern, plays at the South-Street Theater; and many a charming flirtation made lively the passing months for the ladies of the Capital, as well as for lieutenant and captain, major and colonel, of the invaders' army. And after the social festivities, there were, for the officers, carousals at the "Bunch of Grapes" and all night dinners at the "Indian Queen."³⁵⁶

"You can have no idea," wrote beautiful Rebecca Franks, – herself a keen Tory, – to the wife of a patriot, "you can have no idea of the life of continued amusement I live in. I can scarce have a moment to myself. I spent Tuesday evening at Sir William Howe's, where we had a concert and dance… Oh, how I wished Mr. Paca would let you come in for a week or two!.. You'd have an opportunity of raking as much as you choose at Plays, Balls, Concerts, and Assemblies. I have been but three evenings alone since we moved to town."³⁵⁷

"My wife writes me," records a Tory who was without and whose wife was within the Quaker City's gates of felicity, "that everything is gay and happy [in Philadelphia] and it is like to prove a frolicking winter."³⁵⁸ Loyal to the colors of pleasure, society waged a triumphant campaign of brilliant amusement. The materials were there of wit and loveliness, of charm and manners. Such women there were as Peggy Chew and Rebecca Franks, Williamina Bond and Margaret Shippen – afterwards the wife of Benedict Arnold and the probable cause of his fall;³⁵⁹ such men as Banastre Tarleton of the Dragoons, twenty-three years old, handsome and accomplished; brilliant Richard Fitzpatrick of the Guards; Captain John André, whose graces charmed all hearts.³⁶⁰ So lightly went the days and merrily the nights under the British flag in Philadelphia during the winter of 1777-78.

For the common soldiers there were the race-course and the cock-pit, warm quarters for their abodes, and the fatness of the land for their eating. Beef in abundance, more cheese than could be used, wine enough and to spare, provisions of every kind, filled pantry and cellar. For miles around the farmers brought in supplies. The women came by night across fields and through woods with eggs, butter, vegetables, turkeys, chickens, and fresh meat.³⁶¹ For most of the farmers of English descent in that section hated the war and were actively, though in furtive manner, Tory. They not only supplied the British larder, but gave news of the condition and movements of the Americans.³⁶²

Not twenty miles away from these scenes of British plenty and content, of cheer and jollity, of wassail and song, rose the bleak hills and black ravines of Valley Forge, where Washington's army had crawled some weeks after Germantown. On the Schuylkill heights and valleys, the desperate Americans made an encampment which, says Trevelyan, "bids fair to be the most celebrated in the world's history."³⁶³ The hills were wooded and the freezing soldiers were told off in parties of twelve to build huts in which to winter. It was more than a month before all these rude habitations were erected.³⁶⁴ While the huts were being built the naked or scarcely clad³⁶⁵ soldiers had to find what shelter they could. Some slept in tents, but most of them lay down beneath the trees.³⁶⁶ For want of blankets, hundreds, had "to sit up all night by fires."³⁶⁷ After Germantown Washington's men had little to eat at any time. On December 2, "the last ration had been delivered and consumed."³⁶⁸ Through treachery, cattle meant for the famishing patriots were driven into the already over-supplied Philadelphia.³⁶⁹

The commissariat failed miserably, perhaps dishonestly, to relieve the desperate want. Two days before Christmas there was "not a single hoof of any kind to slaughter, and not more than twenty-five barrels of flour!"³⁷⁰ Men died by the score from starvation.³⁷¹ Most of the time "fire cake" made of dirty, soggy dough, warmed over smoky fires, and washed down with polluted water was the only sustenance. Sometimes, testifies Marshall himself, soldiers and officers "were absolutely without food."³⁷² On the way to Valley Forge, Surgeon Waldo writes: "I'm Sick – eat nothing – No Whiskey – No Baggage – Lord, – Lord, – Lord."³⁷³ Of the camp itself and of the condition of the men, he chronicles: "Poor food – hard lodging – Cold Weather – fatigue – Nasty Cloaths – nasty Cookery – Vomit half my time – Smoak'd out of my senses – the Devil's in it – I can't Endure it – Why are we sent here to starve and freeze – What sweet Felicities have I left at home; – A charming Wife – pretty Children – Good Beds – good food – good Cookery – all agreeable – all harmonious. Here, all Confusion – Smoke – Cold, – hunger & filthyness – A pox on my bad luck. Here comes a bowl of beef soup, – full of burnt leaves and dirt, sickish enough to make a hector spue – away with it, Boys – I'll live like the Chameleon upon Air."³⁷⁴

While in overfed and well-heated Philadelphia officers and privates took the morning air to clear the brain from the night's pleasures, John Marshall and his comrades at Valley Forge thus greeted one another: "Good morning Brother Soldier (says one to another) how are you? – All wet, I thank'e, hope you are so – (says the other)."³⁷⁵ Still, these empty, shrunken men managed to squeeze some fun out of it. When reveille sounded, the hoot of an owl would come from a hut door, to be answered by like hoots and the cawing of crows; but made articulate enough to carry in this guise the cry of "'No meat! – No meat!' The distant vales Echo'd back the melancholy sound – 'No Meat! – No Meat!'… What have you for our Dinners, Boys? [one man would cry to another] 'Nothing but Fire Cake and Water, Sir.' At night – 'Gentlemen, the Supper is ready.' What is your Supper, Lads? 'Fire Cake & Water, Sir.'"

Just before Christmas Surgeon Waldo writes: "Lay excessive Cold & uncomfortable last Night – my eyes are started out from their Orbits like a Rabbit's eyes, occasion'd by a great Cold – and Smoke. What have you got for Breakfast, Lads? 'Fire Cake and Water, Sir.' The Lord send that our Commissary of Purchases may live on Fire Cake & Water till their glutted Gutts are turned to Pasteboard."

He admonishes: "Ye who Eat Pumpkin Pie and Roast Turkies – and yet Curse fortune for using you ill – Curse her no more – least she reduce you … to a bit of Fire Cake & a Draught of Cold Water, & in Cold Weather."³⁷⁶

Heart-breaking and pitiful was the aspect of these soldiers of liberty. "There comes a Soldier – His bare feet are seen thro' his worn out Shoes – his legs nearly naked from the tatter'd remains of an only pair of stockings – his Breeches not sufficient to cover his Nakedness – his Shirt hanging in Strings – his hair dishevell'd – his face meagre – his whole appearance pictures a person foresaken & discouraged. He comes, and crys with an air of wretchedness & despair – I am Sick – my feet lame – my legs are sore – my body cover'd with this tormenting Itch – my Cloaths are worn out – my Constitution is broken – my former Activity is exhausted by fatigue – hunger & Cold! – I fail fast I shall soon be no more! And all the reward I shall get will be – 'Poor Will is dead.'"³⁷⁷

On the day after Christmas the soldiers waded through snow halfway to their knees. Soon it was red from their bleeding feet.³⁷⁸ The cold stung like a whip. The huts were like "dungeons and … full as noisome."³⁷⁹ Tar, pitch, and powder had to be burned in them to drive away the awful stench.³⁸⁰ The horses "died by hundreds every week"; the soldiers, staggering with weakness as they were, hitched themselves to the wagons and did the necessary hauling.³⁸¹ If a portion of earth was warmed by the fires or by their trampling feet, it froze again into ridges which cut like knives. Often some of the few blankets in the army were torn into strips and wrapped around the naked feet of the soldiers only to be rent into shreds by the sharp ice under foot.³⁸² Sick men lay in filthy hovels covered only by their rags, dying and dead comrades crowded by their sides.³⁸³

As Christmas approached, even Washington became so disheartened that he feared that "this army must dissolve;"³⁸⁴ and the next day he again warned Congress that, unless the Commissary were quickly improved, "this army must inevitably … starve, dissolve, or disperse."³⁸⁵

Early in 1778 General Varnum wrote General Greene that "The situation of the Camp is such that in all human probability the Army must soon dissolve. Our desertions are astonishingly great."³⁸⁶ "The army must dissolve!" "The army must dissolve!" – the repeated cry comes to us like the chant of a saga of doom.

Had the British attacked resolutely, the Americans would have been shattered beyond hope of recovery.³⁸⁷ On February 1, 1778, only five thousand and twelve men out of a total of more than seventeen thousand were capable of any kind of service: four thousand were unfit for duty because of nakedness.³⁸⁸ The patriot prisoners within the British lines were in even worse case, if we credit but half the accounts then current. "Our brethren," records Surgeon Waldo in his diary, "who are unfortunately Prisoners in Philadelphia, meet with the most savage & inhumane treatments – that Barbarians are Capable of inflicting… One of these poor unhappy men – drove to the last extreem by the rage of hunger – eat his own fingers up to the first joint from the hand, before he died. Others eat the Clay – the Lime – the Stones – of the Prison Walls. Several who died in the Yard had pieces of Bark, Wood, – Clay & Stones in their mouths – which the ravings of hunger had caused them to take in the last Agonies of Life."³⁸⁹

The Moravians in Bethlehem, some miles away from Valley Forge, were the only refuge of the stricken patriots. From the first these Christian socialists were the Good Samaritans of that ghastly winter. This little colony of Germans had been overrun with sick and wounded American soldiers. Valley Forge poured upon it a Niagara of starvation, disease, and death. One building, scarcely large enough for two hundred and fifty beds, was packed with nearly a thousand sick and dying men. Dysentery reduced burly strength to trembling weakness. A peculiar disease rotted blood and bones. Many died on the same foul pallet before it could be changed. The beds were "heaps of polluted litter." Of forty of John Marshall's comrades from a Virginia regiment, which was the "pride of the Old Dominion," only three came out alive.³⁹⁰ "A violent putrid fever," testifies Marshall, "swept off much greater numbers than all the diseases of the camp."³⁹¹

Need, was there not, at Valley Forge for men of resolve so firm and disposition so sunny that they would not yield to the gloom of these indescribable months? Need, was there not, among these men, for spirits so bright and high that they could penetrate even the death-stricken depression of this fetid camp with the glow of optimism and of hope?

Such characters were there, we find, and of these the most shining of all was John Marshall of the Virginia line.³⁹² He was a very torch of warmth and encouragement, it appears; for in the journals and diaries left by those who lived through Valley Forge, the name of John Marshall is singled out as conspicuous for these comforting qualities.

"Although," writes Lieutenant Philip Slaughter, who, with the "two Porterfields and Johnson," was the messmate of John Marshall, "they were reduced sometimes to a single shirt, having to wrap themselves in a blanket when that was washed"³⁹³ and "the snow was knee-deep all the winter and stained with blood from the naked feet of the soldiers,"³⁹⁴ yet "nothing discouraged, nothing disturbed" John Marshall. "If he had only bread to eat," records his fellow officer, "it was just as well; if only meat it made no difference. If any of the officers murmured at their deprivations, he would shame them by good-natured raillery, or encourage them by his own exuberance of spirits.

"He was an excellent companion, and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote… John Marshall was the best tempered man I ever knew,"³⁹⁵ testifies his comrade and messmate.

So, starving, freezing, half blind with smoke, thinly clad and almost shoeless, John Marshall went through the century-long weeks of Valley Forge, poking fun wherever he found despondency, his drollery bringing laughter to cold-purpled lips, and, his light-hearted heroism shaming into erectness the bent backs of those from whom hope had fled. At one time it would be this prank; another time it would be a different expedient for diversion. By some miracle he got hold of a pair of silk stockings and at midnight made a great commotion because the leaves he had gathered to sleep on had caught fire and burned a hole in his grotesque finery.³⁹⁶

High spirits undismayed, intelligence shining like a lamp, common sense true as the surveyor's level – these were the qualities which at the famine camp at Valley Forge singled the boyish Virginia officer out of all that company of gloom. Just before the army went into winter quarters Captain-Lieutenant Marshall was appointed "Deputy Judge Advocate in the Army of the United States,"³⁹⁷ and at the same time, by the same order, James Monroe was appointed aide-de-camp to Lord Stirling, one of Washington's generals.³⁹⁸

Such was the confidence of his fellow officers and of the soldiers themselves in Marshall's judgment and fairness that they would come to him with their disputes and abide by his decision; and these tasks, it seems, the young Solomon took quite seriously. He heard both sides with utmost patience, and, having taken plenty of time to think it over, rendered his decision, giving the reasons therefor in writing.³⁹⁹ So just after he had turned his twenty-second year, we find John Marshall already showing those qualities which so distinguished him in after life. Valley Forge was a better training for Marshall's peculiar abilities than Oxford or Cambridge could have been.

His superiority was apparent, even to casual observers, notwithstanding his merriment and waggishness. One of a party visiting Valley Forge said of the stripling Virginia officer: "By his appearance then we supposed him about twenty-two or twenty-three years of age. Even so early in life … he appeared to us primus inter pares, for amidst the many commissioned officers he was discriminated for superior intelligence. Our informant, Colonel Ball, of another regiment in the same line,⁴⁰⁰ represented him as a young man, not only brave, but signally intelligent."⁴⁰¹

Marshall's good humor withstood not only the horrors of that terrible winter, but also Washington's iron military rule. The Virginia lieutenant saw men beaten with a hundred stripes for attempting to desert. Once a woman was given a hundred lashes and drummed out of the army. A lieutenant was dismissed from the service in disgrace for sleeping and eating with privates, and for buying a pair of shoes from a soldier.⁴⁰² Bitter penalties were inflicted on large numbers of civilians for trying to take flour, cattle, and other provisions to the British in Philadelphia;⁴⁰³ a commissary was "mounted on a horse, back foremost, without a Saddle, his Coat turn'd wrong side out his hands tied behind him & drummed out of the Army (Never more to return) by all the Drums in the Division."⁴⁰⁴

What held the patriot forces together at this time? George Washington, and he alone.⁴⁰⁵ Had he died, or had he been seriously disabled, the Revolution would have ended. Had typhoid fever seized Washington for a month, had any of those diseases, with which the army was plagued, confined him, the patriot standard would have fallen forever. Washington was the soul of the American cause. Washington was the Government. Washington was the Revolution. The wise and learned of every land agree on this. Professor Channing sums it all up when he declares: "Of all men in history, not one so answers our expectations as Washington. Into whatever part of his life the historian puts his probe, the result is always satisfactory."⁴⁰⁶

Yet intrigue and calumny sought his ruin. From Burgoyne's surrender on through the darkest days of Valley Forge, the Conway cabal shot its filaments through Congress, society, and even fastened upon the army itself. Gates was its figurehead, Conway its brain, Wilkinson its tool, Rush its amanuensis, and certain members of Congress its accessories before the fact. The good sense and devotion of Patrick Henry, who promptly sent Washington the anonymous letter which Rush wrote to the Virginia Governor,⁴⁰⁷ prevented that shameful plot from driving Washington out of the service of his country.

Washington had led his army to defeat after defeat while Gates had gained a glorious victory; Gates was the man for the hour – down, then, with the incompetent Virginian, said the conspirators. The Pennsylvania Legislature, wroth that Howe's army had not been beaten, but allowed to occupy the comfortable Capital of the State, remonstrated to Congress. That body, itself, was full of dissatisfaction with the Commander-in-Chief. Why would he not oust the British from Philadelphia? Why had he allowed Howe to escape when that general marched out to meet him? As the first step toward Washington's downfall, Congress created a new Board of War, with Gates as President; Conway was made Inspector-General.⁴⁰⁸

The conspirators and those whom their gossip could dupe lied about Washington's motives. His abilities, it was said, were less than ordinary; and his private conduct, went the stealthy whisper, was so bad as to prove the hypocrisy of his deportment.⁴⁰⁹ Nor were Washington's generals spared. Greene was a sycophant, said these assassins of character; Sullivan a braggart; Stirling "a lazy, ignorant drunkard." These poisoners of reputation declared that General Knox and Alexander Hamilton were "paltry satellites" of Washington and flatterers of his vanity.⁴¹⁰ So cunning, subtle, and persistent were these sappers and miners of reputation that even the timely action of Patrick Henry in sending Washington Rush's unsigned attack might not have prevented the great American's overthrow; for envy of Washington's strength, suspicion of his motives, distrust of his abilities, had made some impression even on men like John Adams.⁴¹¹

The great American bore himself with dignity, going hardly further than to let his enemies know that he was aware of their machinations.⁴¹² At last, however, he lashed out at Congress. Let that body look to the provisioning of the army if it expected the soldiers to fight. The troops had no food, no clothing. The Quartermaster-General had not been heard from for five months. Did his critics think "the soldiers were made of stocks and stones?" Did they think an active winter campaign over three States with starving naked troops "so easy and practicable a business? I can assure those gentlemen," writes Washington, "that it is a much easier and less distressing thing to draw remonstrances in a comfortable room by a good fireside, than to occupy a cold, bleak hill, and sleep under frost and snow, without clothes or blankets… I have exposed myself to detraction and calumny" because "I am obliged to conceal the true state of the army from public view… No day nor scarce an hour passes without" an officer tendering his resignation.⁴¹³

Washington was saved finally by the instinctive faith which that part of the common people who still supported the Revolution had in their great leader, and by his soldiers' stanch devotion, which defeat after defeat, retreat hard upon the heels of preceding retreat, hunger and nakedness, wounds and sickness could not shake.

"See the poor Soldier," wrote Surgeon Waldo at Valley Forge. "He labours thro' the Mud & Cold with a Song in his mouth, extolling War & Washington."⁴¹⁴

Congress soon became insignificant in numbers, only ten or twelve members attending, and these doing business or idling as suited their whim.⁴¹⁵ About the only thing they did was to demand that Washington strike Philadelphia and restore the members of this mimetic government to their soft, warm nests. Higher and yet more lofty in the esteem of his officers and men rose their general. Especially was this true of John Marshall for reasons already given, which ran back into his childhood.

In vain Washington implored the various States to strengthen Congress by sending their best men to this central body. Such able men as had not taken up arms for their country refused to serve in Congress. Nearly every such man "was absorbed in provincial politics, to the exclusion of any keen and intelligent interest in the central Government of his nation."⁴¹⁶

Amidst the falling snow at Valley Forge, Washington thus appealed to Colonel Harrison in Virginia: "America never stood in more eminent need of the wise, patriotic, and spirited exertions of her Sons than at this period… The States, separately, are too much engaged in their local concerns… The States … have very inadequate ideas of the present danger."⁴¹⁷ The letter could not be sent from that encampment of ice and death for nearly two weeks; and the harassed commander added a postscript of passionate appeal declaring that "our affairs are in a more distressed, ruinous, and deplorable condition than they have been in since the commencement of the War."⁴¹⁸

"You are beseeched most earnestly, my dear Colo Harrison," pleaded Washington, "to exert yourself in endeavoring to rescue your Country by … sending your best and ablest Men to Congress – these characters must not slumber nor sleep at home in such times of pressing danger – they must not content themselves in the enjoyment of places of honor or profit in their Country [Virginia]⁴¹⁹ while the common interests of America are mouldering and sinking into irretrievable … ruin, in which theirs also must ultimately be involved."⁴²⁰

With such men, Washington asserted, "party disputes and personal quarrels are the great business of the day, whilst the momentous concerns of an empire [America]⁴²¹ … are but secondary considerations." Therefore, writes Washington, in angry exasperation, "in the present situation of things, I cannot help asking – Where is Mason – Wythe – Jefferson?"⁴²²

"Where is Jefferson?" wrote Washington in America's darkest hour, when the army was hardly more than an array of ragged and shoeless skeletons, and when Congress was so weak in numbers and ability that it had become a thing of contempt. Is it not probable that the same question was asked by the shivering soldiers and officers of the Continental army, as they sat about the smoking fires of their noisome huts sinking their chattering teeth into their "Fire Cake" and swallowing their brackish water? If Washington would so write, is it not likely that the men would so talk? For was not Jefferson the penman who had inscribed the Declaration of Independence, for which they were fighting, suffering, dying?

Among the Virginians especially there must have been grave questionings. Just as to John Marshall's army experience the roots of the greatest of his constitutional opinions may clearly be traced, so the beginnings of his personal estimate of Thomas Jefferson may be as plainly found in their relative situations and conduct during the same period.

John Marshall was only a few days beyond his twentieth year when, with his Culpeper Minute Men, he fought the British at Great Bridge. Thomas Jefferson at that time was thirty-two years old; but the prospect of battle on Virginia's soil did not attract him. At Valley Forge, John Marshall had just entered on his twenty-third year, and Thomas Jefferson, thirty-five years old, was neither in the army nor in Congress. Marshall had no fortune; Jefferson was rich.⁴²³

So, therefore, when as reserved a man as Washington had finally and with great effort trained himself to be, asked in writing, "Where is Jefferson?" is it not a reasonable inference that the Virginia officers in the familiar talk of comrades, spoke of Jefferson in terms less mild?

And, indeed, where was Thomas Jefferson? After serving in Congress, he refused point-blank to serve there again and resigned the seat to which he had been reëlected. "The situation of my domestic affairs renders it indispensably necessary that I should solicit the substitution of some other person," was the only excuse Jefferson then gave.⁴²⁴ He wanted to go to the State Legislature instead, and to the State Legislature he went. His "domestic affairs" did not prevent that. In his Autobiography, written forty-four years afterward (1821), Jefferson declares that he resigned from Congress and went to the State Legislature because "our [State] legislation under the regal government had many very vicious points which urgently required reformation and I thought I could be of more use in forwarding that work."⁴²⁵

So while the British revels were going on in Philadelphia and the horrors of Valley Forge appeared to be bringing an everlasting night upon American liberty, and when the desperation of the patriot cause wrung from the exasperated Washington his appeal that Virginia's ablest men should strengthen the feeble and tottering Congress, Jefferson was in the State Legislature. But he was not there merely enjoying office and exclusively engaged in party politics as Washington more than intimates. He was starting such vital reforms as the abolition of entails, the revision of the criminal code, the establishment of a free school system, the laying of the legal foundations of religious freedom.⁴²⁶

In short, Jefferson was sowing the seeds of liberalism in Virginia. But it is only human nature that breasts bearing the storm of war should not have thrilled in admiration of this civil husbandry. It was but natural that the benumbed men at Valley Forge should think the season early for the planting of State reforms, however needful, when the very ground of American independence was cold and still freezing with patriot misfortune and British success.

Virginia's Legislature might pass all the so-called laws it liked; the triumph of the British arms would wipe every one of them from the statute books. How futile, until America was free, must all this bill-drafting and reforming have appeared to the hard-driven men on the Schuylkill's Arctic hills! "Here are we," we can hear them say, "in worse case than most armies have been in the whole history of the world; here are we at Valley Forge offering our lives, wrecking our health, losing the little store we have saved up, and doing it gladly for the common American cause; and there, in safe and comfortable Williamsburg or at sumptuous Monticello, is the man who wrote our Declaration of Independence, never venturing within the sound of cannon or smell of powder and even refusing to go to Congress."

The world knows now that Jefferson was not to be blamed. He was not a man of arms, dreaded the duties of a soldier, had no stomach for physical combat.⁴²⁷ He was a philosopher, not a warrior. He loved to write theories into laws that correct civil abuses by wholesale, and to promote the common good by sweeping statutes. Also, he was a born politician, skillful and adroit in party management above any man in our history.⁴²⁸

But as a man of action in rough weather, as an executive in stern times, he himself admitted his deficiency.⁴²⁹ So we know to-day and better understand this great reformer, whose devotion to human rights has made men tolerant of his grave personal shortcomings. Nothing of this, however, could have occurred to the starving, shivering patriot soldiers in their awful plight at Valley Forge. Winning the war was their only thought, as always is the soldier's way.

Early in April, 1778, when, but for the victory at Saratoga, the Revolution seemed well-nigh hopeless to all but the stoutest hearts, an old and valued English friend begged Washington to give up the apparently doomed American cause. The Reverend Andrew Burnaby appealed to him for American and British reunion. "Must the parent and the child be forever at variance? And can either of them be happy, independent of the other?" The interests of the two countries are the same; "united they will constitute the fairest and happiest state in the world; divided they will be quite the reverse. It is not even possible that America should be happy, unconnected with Great Britain." In case America should win, the States will fall asunder from civil discord. The French, "that false and treacherous people," will desert the Americans. Great Britain and America have "the same interest, the same lineage, the same language, the same liberty, the same religion, connecting them." Everybody in England wants reunion; even the Government is anxious to "rectify … errors and misunderstandings." It is time to "heal the wounds on both sides." Washington can achieve this "divine purpose" and "thereby acquire more glory and confer more real and lasting service, both to your own country and to mankind in general than … ever yet happened to the lot of any one man."⁴³⁰

CHAPTER V
MARRIAGE AND LAW BEGINNINGS

He was always and under all circumstances an enthusiast in love. (Mrs. Carrington, of Marshall's devotion to his wife.)

It was upon a night of gentle gayety in the late winter or early spring of 1779-80 that Captain John Marshall first met Mary Ambler. When he went back to Virginia to take charge of troops yet to be raised, he visited his father, then commanding at the village of Yorktown.⁴⁸² More than a year had gone by since Colonel Marshall had left his son at Valley Forge. On this visit befell the most important circumstance of John Marshall's private life. While he was waiting for his new command, an event came to pass which relieved his impatience to prolong still further his four years of active warfare and inspired him to improve this period of enforced absence from the front, by preparing himself for his chosen profession.

Jacquelin Ambler had been one of Yorktown's wealthiest men, and his house was called a "mansion." But the war had ruined him financially;⁴⁸³ and the year 1780 found the Ambler family dwelling in humble quarters. "The small retired tenement" to which reduced circumstances forced him to take his invalid wife and young children stood next door to the headquarters of Colonel Thomas Marshall. The Ambler family was under Colonel Marshall's protection, for the father's duties as State Councillor kept him at Williamsburg.⁴⁸⁴ But the reverse of Jacquelin Ambler's fortunes did not make this little house less attractive than his "mansion" had been.

The unusual charm of his daughters rendered that modest abode very popular. Indeed, this quality of pleasing seems to have been a common possession of the Ambler family, and has become historic. It was this very Jacquelin Ambler for whom Rebecca Burwell threw over Thomas Jefferson. This Virginia belle was the love of Jefferson's youth. She was the "Campana in die,"⁴⁸⁵ "Belinda," "Adnileb," and "R. B." of Jefferson's letters.⁴⁸⁶ But Rebecca Burwell preferred Jacquelin Ambler and became his wife.⁴⁸⁷ The Ambler daughters inherited from both mother and father that beauty, grace, and goodness which gave them their extraordinary personal appeal.

During John Marshall's visit to his father the young ladies of Yorktown saw to it that a "ball" was given. All the officers had been invited, of course; but none of them aroused such interest as did Captain John Marshall of the Eleventh Virginia Regiment of the line.

The fame of this young soldier, fresh from the war, was very bright in Virginia. His name was on the lips of all the fair attendants of the dance. They were in a quiver of expectancy at the prospect of meeting the gallant captain who had fought under the great Washington and who had proved himself a hero at Brandywine and Germantown, at Valley Forge and Monmouth.

Years afterwards, Eliza, the eldest of the Ambler daughters, described the event in a letter full of color written to her sister. "We had been accustomed to hear him [Marshall] spoken of by all as a very paragon," writes Mrs. Carrington, "we had often seen letters from him fraught with filial and paternal affection. The eldest of fifteen children, devoted from his earliest years to his younger brothers and sisters, he was almost idolized by them, and every line received from him was read with rapture."⁴⁸⁸

"Our expectations were raised to the highest pitch," writes the elder sister, "and the little circle of York was on tiptoe on his arrival. Our girls particularly were emulous who should be first introduced"; but Mary Ambler, then only fourteen years old, and very diffident and retiring, astonished her sister and friends by telling them that "we were giving ourselves useless trouble; for that she, for the first time, had made up her mind to go to the ball, though she had not even been at dancing school, and was resolved to set her cap at him and eclipse us all."⁴⁸⁹

Great was their disappointment when finally Captain Marshall arrived. His ungainly dress, slouch hat, and rustic bearing instantly quenched their enthusiasm.⁴⁹⁰ They had looked forward to seeing a handsome, romantic figure, brilliantly appareled, and a master of all the pleasing graces; instead they beheld a tall, loose-jointed young man, thin to gauntness, whose clothes were hanging about him as if upon a rack, and whose manners were awkward and timid to the point of embarrassment. No game was he for Cupid's bow, thought these belles of old Yorktown.

"I, expecting an Adonis, lost all desire of becoming agreeable in his eyes when I beheld his awkward figure, unpolished manners, and total negligence of person";⁴⁹¹ thus writes Eliza Ambler of the impression made upon her by the young soldier's disheveled aspect and unimpressive deportment. But Mary Ambler stuck to her purpose, and when John Marshall was presented to her, both fell in love at first sight. Thus began a lifelong romance which, in tenderness, exaltation, and constancy is unsurpassed in the chronicle of historic affections.

It was no longer alone the veneration for a father that kept the son in Yorktown. Day followed day, and still the gallant captain tarried. The unfavorable first judgment gave way to appreciation. He soon became a favorite at every house in the village.⁴⁹² His gift of popularity was as great, it seems, among women as among men; and at the domestic fireside as well as in the armed camp. Everybody liked John Marshall. There was a quality in him that inspired confidence. Those who at first had been so disappointed in his dress and manners soon forgot both in his wholesome charm. They found him delightfully companionable.⁴⁹³ Here was preëminently a social being, they discovered. He liked people, and wanted people to like him. He was full of fun and hearty laughter; and his rare good sense and sheer manliness furnished solid foundation to his lighter qualities.

So every door in Yorktown was thrown open to Captain John Marshall. But in Jacquelin Ambler's house was the lodestone which drew him. April had come and the time of blossoming. On mellow afternoons, or by candlelight when the sun had set, the young lover spent as much time as the proprieties would permit with Mary Ambler, telling her of the war, no doubt; and, as her sister informs us, reading poetry by the hour.⁴⁹⁴ Through it all he made love as hard as he could. He wooed as ardently and steadily as he had fought.⁴⁹⁵

The young lover fascinated the entire Ambler family. "Under the slouched hat," testifies Mary Ambler's sister, "there beamed an eye that penetrated at one glance the inmost recesses of the human character; and beneath the slovenly garb there dwelt a heart complete with every virtue. From the moment he loved my sister he became truly a brother to me… Our whole family became attached to him, and though there was then no certainty of his becoming allied to us, we felt a love for him that can never cease… There was no circumstance, however trivial, in which we were concerned, that was not his care."

He would "read to us from the best authors, particularly the Poets, with so much taste and feeling, and pathos too, as to give me an idea of their sublimity, which I should never have had an idea of. Thus did he lose no opportunity of blending improvement with our amusements, and thereby gave us a taste for books which probably we might never otherwise have had."⁴⁹⁶

The time had come when John Marshall must acquire a definite station in civil life. This was especially necessary if he was to take a wife; and married he would be, he had decided, whenever Mary Ambler should be old enough and would consent. He followed his parents' wishes⁴⁹⁷ and began his preparation for the bar. He told his sweetheart of his purpose, of course, and her family "learned [of it] with pleasure."⁴⁹⁸ William and Mary College, "the only public seminary of learning in the State,"⁴⁹⁹ was only twelve miles from Yorktown; and there the young officer attended the law lectures of George Wythe for perhaps six weeks⁵⁰⁰– a time so short that, in the opinion of the students, "those who finish this Study [law] in a few months, either have strong natural parts or else they know little about it."⁵⁰¹ Recalling a criticism of one of Marshall's "envious contemporaries" some years later, Mrs. Carrington says: "Allusion was made to his short stay at William and Mary, and that he could have gained little there."⁵⁰²

It is said also that Marshall took a course in philosophy under President Madison, then the head of the little college and afterwards Bishop of Virginia; but this is unlikely, for while the soldier-student took careful notes of Wythe's lectures, there is not a word in his notebook⁵⁰³ concerning any other college activity. The faculty consisted of five professors.⁵⁰⁴ The college was all but deserted at that time and closed entirely the year after John Marshall's flying attendance.⁵⁰⁵

Although before the Revolution "the Necessary Expence of each Scholar yearly … [was] only 15 £ Currency,"⁵⁰⁶ one of Marshall's fellow students testifies that: "The amazing depreciation of our Currency has raised the price of Every Article so enormously that I despair'd of my Father's ability to support me here another year… Board & entring under two Professors amounts to 4000wt of Tobacco."⁵⁰⁷

The intercourse of students and faculty was extremely democratic. There was a "college table" at which the students took their meals. According to the college laws of that time, beer, toddy, and spirits and water might be served, if desired.⁵⁰⁸ The students were not required to wear either coats or shoes if the weather was warm.⁵⁰⁹

At a later period the students boarded at private houses in the town.⁵¹⁰ Jefferson, who, several years before Marshall's short attendance, was a student at William and Mary, describes the college and another public building as "rude, mis-shapen piles, which, but that they have roofs, would be taken for brick-kilns."⁵¹¹ Chastellux, however, declares that "the beauty of the edifice is surpassed [only] by the richness of its library and that still farther, by the distinguished merit of several of the professors," and he describes the college as "a noble establishment … which does honour to Virginia."⁵¹²

The youths attending William and Mary during Marshall's brief sojourn were disgusted by the indifference of the people of the vicinity toward the patriot cause. "The want of Men, Money, Provisions, & still more of Public Virtue & Patriotism is universal – a melancholy Lethargick disposition pervades all Ranks in this part of the Country, they appear as if determined to struggle no more, but to 'stand still & see what the Lord will do for them,'" wrote John Brown in July, 1780.⁵¹³

Mr. Wythe, the professor of law, was the life of the little institution in this ebbing period of war-time. He established "a Moot Court, held monthly or oftener … Mr. Wythe & the other professors sit as Judges. Our Audience consists of the most respectable of the Citizens, before whom we plead our Causes, given out by Mr. Wythe Lawyer like I assure you." The law professor also "form'd us into a Legislative Body, Consisting of about 40 members." Wythe constituted himself Speaker of these seedling lawmakers and took "all possible pains to instruct us in the Rules of Parliament." These nascent Solons of old William and Mary drew original bills, revised existing laws, debated, amended, and went through all the performances of a legislative body.⁵¹⁴

The parent chapter of the Phi Beta Kappa Society had been instituted at the college; and to this Marshall was immediately elected. "At a meeting of the Society the 18 of May, 1780, Capt. John Marshall being recommended as a gentleman who would make a worthy member of this Society was balloted for & received."⁵¹⁵ This is an important date; for it fixes with reasonable certainty the time of Marshall's entrance at William and Mary. He was probably the oldest of all the students; his army service made him, by far, the most interesting and notable; his extraordinary social qualities never failed to render him popular. It is, therefore, certain that he was made a member of Phi Beta Kappa without much delay. He probably entered college about May 1.⁵¹⁶

At once we find the new member appointed on the society's debating team. Two students were selected to "declaim" the question and two to "argue" it.

"Mr. Cabell & Mr. Peyton Short appointed to declaim the Question whether any form of government is more favorable to our new virtue than the Commonwealth.

"Mr. Joseph Cabell and Mr. Marshall to argue the same. An adjournment. William Short President.

"At a meeting in course Saturday June 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 gentleman not immediately interested, argued ye Question."⁵¹⁷

But it was not debating on which John Marshall was intent, nor any other college duties. He had hard work, it appears, to keep his mind on the learned words that fell from the lips of Mr. Wythe; for on the inside cover and opposite page of the book in which he made notes of Wythe's law lectures,⁵¹⁸ we find in John Marshall's handwriting the words, "Miss Maria Ambler"; and again "Miss M. Ambler"; and still again, this time upside down, "Miss M. Ambler – J. Marshall"; and "John Marshall, Miss Polly Am."; and "John, Maria"; and "John Marshall, Miss Maria"; and "Molly Ambler"; and below this once more, "Miss M. Ambler"; on the corner of the page where the notes of the first lecture are recorded is again inscribed in large, bold letters the magic word, "Ambler."⁵¹⁹

Jacquelin Ambler had been made Treasurer of State, and, early in June, 1780, the family removed from Yorktown to Richmond, stopping for a day or two in Williamsburg. While there "a ball was … given … by certain gentlemen in compliment … 'to the Misses Amblers.'" Eliza Ambler describes the incidents of this social event. The affair was "simple and frugal as to its viands," she writes, "but of the brilliancy of the company too much cannot be said; it consisted of more Beauty and Elegance than I had ever witnessed before… I was transported with delight." Yet she could not "treat … the prime mover in this civility with common good manners… His more successful friend Marshall, was devoted to my sister."⁵²⁰

This "ball" ended John Marshall's college studies; the lure of Mary Ambler was greater than that of learning to the none too studious captain. The abrupt ending⁵²¹ of the notes he was making of Mr. Wythe's lectures, in the midst of the course, otherwise so inexplicable, was caused by her two days' sojourn in the college town. Forthwith he followed to Richmond, where, for two weeks he gayly played the part of the head of the family (acted "Pa," as Marshall quaintly expresses it), apparently in Jacquelin Ambler's absence.⁵²²

Although he had scarcely begun his studies at William and Mary; although his previous instruction by professional teachers was meager and fragmentary; and although his father could well afford the small expense of maintaining him at Williamsburg long enough for him to secure at least a moderate education, John Marshall never returned to college.⁵²³ No more lectures of Professor Wythe for the young lover. He would begin his professional career at once and make ready for the supreme event that filled all his thoughts. So while in Richmond he secured a license to practice law. Jefferson was then Governor, and it was he who signed the license to the youth who was to become his greatest antagonist. Marshall then went to Fauquier County, and there, on August 28, 1780, was admitted to the bar. "John Marshall, Gent., produced a license from his Excellency the Governor to practice law and took the oaths prescribed by act of Assembly," runs the entry in the record.⁵²⁴

He waited for the recruiting of the new troops he was to command, and held himself in readiness to take the field, as indeed he rushed to do without orders when Arnold's invasion came. But the new troops never were raised and Marshall finally left the service. "I continued in the army until the year 1781," he tells us, "when, being without a command, I resigned my commission in the interval between the invasion of Virginia by Arnold and Phillips."⁵²⁵

During this season of inaction he resolved to be inoculated against the smallpox. This was another effect which falling in love had on the young soldier; for he could, had he wished, have had this done more than once while with Washington's army.⁵²⁶ He would now risk his health no longer. But the laws of Virginia made the new method of treating smallpox almost impossible.⁵²⁷ So away on foot⁵²⁸ went John Marshall to Philadelphia to be made proof against this disfiguring malady.

According to Marshall's own account, he covered the ground at an amazing pace, averaging thirty-five miles a day; but when he arrived, so disreputable did he appear that the tavern refused to take him in.⁵²⁹ Long-bearded and slovenly clothed, with battered hat and uncouth manners, he gave the unfavorable first impression which the same causes so often produced throughout his life. This is not to be wondered at, for, writing twenty years afterward, when Marshall as Chief Justice was at the height of his career, his sister-in-law testifies that his "total negligence of person … often produced a blush on her [Marshall's wife's] cheek."⁵³⁰ But he finally secured lodgings, was inoculated, and, made secure from the attacks of the dreaded scourge, back he fared to Virginia and Mary Ambler.

And Marshall made love as he made war, with all his might. A very hurricane of a lover he must have been; for many years afterward he declared to his wife's sister that "he looked with astonishment at the present race of lovers, so totally unlike what he had been himself."⁵³¹ In a touching letter to his wife, written almost half a century later, Marshall thus recalls the incidents of his courtship: —

"I begin with the ball at York, and with the dinner on the fish at your house the next day: I then retrace my visit to York, our splendid assembly at the Palace⁵³² in Williamsburg, my visit to Richmond where I acted Pa for a fortnight, my return the ensuing fall and the very welcome reception you gave me on your arrival from Dover, our little tiffs & makings up, my feelings while Major Dick⁵³³ was courting you, my trip to the cottage,⁵³⁴ the lock of hair, my visit again to Richmond the ensuing fall, and all the thousand indescribable but deeply affecting instances of your affection or coldness which constituted for a time the happiness or misery of my life and will always be recollected with a degree of interest which can never be lost while recollection remains."⁵³⁵

When he left the army in 1781, Marshall, although a member of the bar, found no legal business to do.⁵³⁶ He probably alternated between the Oak Hill plantation in Fauquier County, where his help was sadly needed, and Richmond, where the supreme attraction drew him. Thus another year wore on. In this interval John Marshall engaged in politics, as was the custom of young gentlemen of standing and ambition; and in the fall of 1782 was elected to the House of Delegates from Fauquier County.⁵³⁷ This honor was a material help, not only in his career, but in his suit for the hand of Mary Ambler.

Also, membership in the Legislature required him to be, where his heart was, in Richmond, and not two months had John Marshall been in the Capital as a member of Virginia's Legislature when he was married. "In January [3d] 1783," writes Marshall, "I intermarried with Mary Willis Ambler, the second daughter of Mr. Jacquelin Ambler, then Treasurer of Virginia, who was the third son of Mr. Richard Ambler, a gentleman who had migrated from England, and settled at York Town, in Virginia."⁵³⁸

The Ambler abode in Richmond was not a romantic place for the wedding. The primitive town was so small that when the Ambler family reached it Eliza exclaimed, "where we are to lay our weary heads Heaven knows!" And she describes the house her father rented as "a little dwelling" so small that "our whole family can scarcely stand up altogether in it"; but Jacquelin Ambler took it because, poor as it was, it was "the only decent tenement on the hill."⁵³⁹

The elder Ambler sister thus pictures the Richmond of 1780: "This little town is made up of Scotch factors who inhabit small tenements scattered here and there from the river to the hill. Some of them look, as Colonel [Thomas] Marshall has observed, as if the poor Caledonians had brought them over on their backs, the weakest of whom being glad enough to stop at the bottom of the hill, others a little stronger proceeding higher, whilst a few of the stoutest and the boldest reached the summit."⁵⁴⁰ Eight years after the Amblers moved to Richmond, Jefferson wrote: "The town below Shockoe creek is so deserted you cannot get a person to live in a house there rent free."⁵⁴¹

But Mary's cousin, John Ambler, who, at twenty-one years of age, found himself "one of the richest men in the State of Virginia,"⁵⁴² solved the difficulty by offering his country seat for the wedding.⁵⁴³ Mary Ambler was only seventeen when she became the young lawyer's bride,⁵⁴⁴ and John Marshall was a little more than ten years older. After the bridegroom had paid the minister his fee, "he had but one solitary guinea left."⁵⁴⁵

This does not mean that John Marshall was without resources, but it indicates the scarcity of ready money in Virginia at the close of the war. Indeed, Marshall's father, while not yet the wealthy man he afterwards became,⁵⁴⁶ had, as we have seen, already acquired very considerable property. He owned at this time at least two thousand acres in Fauquier County;⁵⁴⁷ and twenty-two negroes, nine of them tithable (sixteen years old), twelve horses, and twenty-two head of cattle.⁵⁴⁸

When John Marshall married Miss Ambler, his father gave him one negro and three horses.⁵⁴⁹ The following year (1784) the Tithable Book shows but five tithable negroes, eight young negroes, eight horses, and eighteen head of cattle in Thomas Marshall's name. He evidently sold his other slaves and personal property or took them with him to Kentucky. So it is likely that the slaves, horses, and cattle left behind were given to his son, together with a part of Thomas Marshall's Fauquier County farm.⁵⁵⁰

During the Revolution Thomas Marshall was, like most other Continental officers, in sore need of money. He tried to sell his land to Washington for cash. Washington was anxious to buy "Lands in my own Neck at (almost) any price … in ye way of Barter … for Negroes … or … for any thing else (except Breeding Mares and Stock)." But he could not pay money. He estimated, by memory, Thomas Marshall's land at £3000, at a time when, because of depreciated money and inflated prices, "a Barrl. of Corn which used to sell for 10/ will now fetch 40 – when a Barl. of Porke that formerly could be had for £3 sells for £15." So Washington in 1778 thought that "Marshall is not a necessitous man." When it came to trading, the father of his country was keen and suspicious, and he feared, it would seem, that his boyhood friend and comrade in arms would "practice every deception in his power in order to work me … up to his price."⁵⁵¹

Soon after John Marshall met Mary Ambler at the "ball" at Yorktown, and just before he went to William and Mary College, his father sold this very land that Washington had refused to purchase. On March 28, 1780, Thomas Marshall conveyed to Major Thomas Massey [Massie] one thousand acres in Fauquier County for "thirty thousand pounds Currency."⁵⁵² This was a part of the seventeen hundred acres for which the elder Marshall had paid "nine hundred and twelve pounds ten shillings" seven years before.⁵⁵³ The change shows the startling depreciation of Virginia currency as well as Continental paper, both of which in 1780 had reached a very low point and were rapidly going down.⁵⁵⁴

It reveals, too, the Marshall family's extreme need of cash, a want sorely felt by nearly everybody at this period; and the familiar fact that ownership of land did not mean the ready command of money. The year after John Marshall's marriage he wrote to James Monroe: "I do not know what to say to your scheme of selling out. If you can execute it you will have made a very capital sum, if you can retain your lands you will be poor during life unless you remove to the western country, but you have secured for posterity an immense fortune"; and Marshall tells Monroe that the latter can avail himself of the knowledge of Kentucky lands possessed by the members of the Marshall family who were on the ground.⁵⁵⁵

Writing twenty years later of economic conditions during the period now under review, Marshall says: "Real property was scarcely vendible; and sales of any article for ready money could be made only at a ruinous loss… In every quarter were found those who asserted it to be impossible for the people to pay their public or private debts."⁵⁵⁶

So, although his father was a very well-to-do man when John Marshall began married life, he had little or no ready money, and the son could not expect much immediate paternal assistance. Thomas Marshall had to look out for the bringing-up of a large number of other children and to consider their future; and it is this fact which probably induced him to seek fortune anew in the Kentucky wilderness after he was fifty years of age. Legend has it that Thomas Marshall made his venture on Washington's advice. At any rate, he settled, permanently, in Kentucky in the fall of 1783.⁵⁵⁷

The fledgling lawyer evidently expected to start upon a legal career in the county of his birth; but immediately after marrying Miss Ambler, he established himself at Richmond, where her family lived, and there began the practice of the law. While his marriage into the Ambler family was inspired exclusively by an all-absorbing love, the alliance was a fortunate one for John Marshall from the practical point of view. It gave him the support of a powerful State official and one of the best-liked men in all Virginia. A favor asked by Jacquelin Ambler was always granted if possible; and his recommendation of any one was final. The Ambler household soon became the most attractive in Richmond, as it had been in Yorktown; and Marshall's marriage to Mary Ambler gave him a social standing which, in the Virginia of that day, was a very great asset in business and politics.

The house to which he took his bride was a tiny one-story affair of wood, with only two rooms; the best house the Amblers themselves could secure, as we have seen, was so small that the "whole family" could scarcely crowd into it. Three years before John Marshall and his young wife set up housekeeping, Richmond could "scarce afford one comfort in life."⁵⁵⁸ According to Mrs. Carrington the dwelling-houses had no curtains for the windows.⁵⁵⁹ The streets were open spaces of earth, unpaved and without sidewalks. Many years after Marshall established himself at the new and raw Virginia Capital, Main Street was still unpaved, deep with dust when dry and so muddy during a rainy season that wagons sank up to the axles. Footways had been laid only at intervals along the town's chief thoroughfare; and piles of ashes and cinders were made to serve as street-crossings, from which, if one misstepped on a dark and rainy night, he found himself deep in the mire. A small stream flowed diagonally across Main Street, flooding the surface; and the street itself ended in gullies and swamps.⁵⁶⁰ In 1783 the little town was, of course, still more primitive.

There were no brick or stone buildings in Richmond when Marshall was married. The Capitol, itself, was an ugly structure – "a mere wooden barn" – on an unlovely site at the foot of a hill.⁵⁶¹ The private dwellings, scattered about, were the poor, mean, little wooden houses already described by Eliza Ambler.

Trade was in the hands of British merchants who managed to retain their commercial hold in spite of the Revolution.⁵⁶² Rough, heavy wagons drawn by four or six horses brought in the produce of the country, which included "deer and bear skins, furs, ginseng, snake-root," and even "dried rattlesnakes … used to make a viper broth for consumptive patients."⁵⁶³ These clumsy vehicles were sometimes a month in covering less than two hundred miles.⁵⁶⁴ Specie was the money chiefly used in the back country and the frontier tradesmen made remittances to Richmond by placing a "bag of gold or silver in the centre of a cask of melted wax or tallow … or [in a] bale of hemp."⁵⁶⁵

There was but one church building and attendance was scanty and infrequent.⁵⁶⁶ The principal amusement was card-playing, in which everybody indulged,⁵⁶⁷ and drinking was the common practice.⁵⁶⁸ The town sustained but one tavern which was kept by a Neapolitan named Farmicola. This hostelry had two large rooms downstairs and two above. The beds were under the roof, packed closely together and unseparated by partitions. When the Legislature met, the inn was crowded; and "Generals, Colonels, Captains, Senators, Assembly-men, Judges, Doctors, Clerks, and crowds of Gentlemen of every weight and calibre and every hue of dress, sat altogether about the fire, drinking, smoking, singing, and talking ribaldry."⁵⁶⁹

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

Randolph and Wickham, Innes and Ronald, Campbell and Call, and others whose distinction has made the bar of the Old Dominion historic, practiced at Richmond. And the court around which this extraordinary constellation gathered was equally eminent. Pendleton, whose intellect and industry more than supplied early defects in education, was president of the Court of Appeals; Wythe was one of the judges of the High Court of Chancery, of which he afterwards became sole chancellor; Paul Carrington and others of almost equal stature sat with Pendleton on the Supreme Bench. Later on appeared the erudite, able, and commanding Roane, who, long afterwards, when Marshall came into his own, was to be his most formidable antagonist in the clash of courts.

Of Marshall's other arguments at this period, no record exists. We know, however, from his Account Book, that his business increased steadily; and, from tradition, that he was coming to be considered the ablest of the younger members of the distinguished Richmond bar. For his services in this, his first notable case, Marshall received one hundred and nine pounds, four shillings, paid by fifty-seven clients. Among those employing the young attorney was George Washington. In the account of fees paid him in Hite vs. Fairfax, he enters: "Genl. G. Washington 1-4" (pounds and shillings) and "A. Washington 1-4." Marshall's record of this transaction is headed: "List of fees rec'd from Tents. Fairfax Ads Hite," referring to the title of the case in the lower court.

An evidence of his growing prosperity is the purchase from Aquella and Lucy Dayson of two hundred and sixty acres of land in Fauquier County, for "one hundred and sixty pounds current money of Virginia."⁶⁰⁸ This purchase, added to the land already given him by his father,⁶⁰⁹ made John Marshall, at thirty-one years of age, the owner of nearly one thousand acres of land in Fauquier.

Marshall's Account Book shows his generosity toward his brothers and sisters, who remained in Virginia when Thomas Marshall went to Kentucky to establish himself. There are frequent entries of money advanced to his brothers, particularly James M., as, "Given my brother James £3-9"; or, "To my brother James £36-18," etc. Marshall's sister Lucy lived in his house until her marriage to the wealthy John Ambler.⁶¹⁰ The young lawyer was particularly attentive to the wants of his sister Lucy and saw to it that she had all the advantages of the Virginia Capital. In his Account Book we find many entries of expenses in her behalf; as, for example, "for Lucy £5-8-3"; and again, a few days later, "given Eliza⁶¹¹ for Lucy" four pounds, sixteen shillings; and still later, "for Lucy 10-6" (ten pounds, six shillings); and, "Pḍ for Lucy entering into dancing school 2-2" (two pounds, two shillings).

Throughout Marshall's Account Book the entries that most frequently occur are for some expense for his wife. There is hardly a page without the entry, "given Polly" so much, or "for Polly" so much, and the entries are for liberal amounts. For instance, on January 15, 1785, he enters, "Sundries for Polly £8-6-8 1/2"; on the 18th, "Given Polly 6/"; on the 25th, "for Polly 11/ 7 1/2"; and on the 29th, "Given Polly for a hat 36/." And later, "Given Polly 56/" and "Given Polly 2-16" (pounds and shillings); and "for Polly £3." "For Polly 5-7-5"; "Sundries for Polly, 12-6" and "Left with Polly 10-4" (pounds and shillings). "Given Polly £1-8"; "Gloves for Polly 7/6." Such entries are very numerous.

The young wife, who had become an invalid soon after her marriage, received from her husband a devotion and care which realized poetic idealism. "His exemplary tenderness to our unfortunate sister is without parallel," testifies Mrs. Carrington. "With a delicacy of frame and feeling that baffles all description, she became, early after her marriage, a prey to an extreme nervous affliction which more or less has embittered her comfort thro' life; but this only served to increase his care and tenderness… He is always and under every circumstance an enthusiast in love."⁶¹²

Marshall's affection for his wife grew with the years and was nourished by her increasing infirmities. It is the most marked characteristic of his entire private life and is the one thing which differentiates him sharply from most of the eminent men of that heroic but, socially, free-and-easy period. Indeed, it is in John Marshall's worship of his delicate and nerve-racked wife that we find the beginnings of that exaltation of womankind, which his life, as it unrolls, will disclose.

John Marshall's respect, admiration, reverence, for woman became so notable that it was remarked by all who knew him, and remains to this day a living tradition in Richmond. It resembled the sentiment of the age of chivalry. While the touching incidents, glowing testimonials, and most of the letters that reveal this feature of Marshall's character occur more vividly after he ascended the bench,⁶¹³ the heart of the man cannot be understood as we go along without noting the circumstance in his earlier married life.

CHAPTER VI
IN THE LEGISLATURE AND COUNCIL OF STATE

The proceedings of the Assembly are, as usual, rapidly degenerating with the progress of the session. (Madison.)

Our Assembly has been employed chiefly in rectifying the mistakes of the last and committing new ones for emendation at the next. (Washington.)

It is surprising that gentlemen cannot dismiss their private animosities but will bring them in the Assembly. (Marshall.)

In 1783, a small wooden building stood among the two or three hundred little frame houses⁶¹⁴ which, scattered irregularly from the river to the top of the hill, made up the town of Richmond at the close of the Revolution. It was used for "balls," public banquets, and other functions which the merriment or inclination of the miniature Capital required. But its chief use was to house the legislative majesty of Virginia. In this building the General Assembly of the State held its bi-yearly sessions. Here met the representatives of the people after their slow and toilsome journey on horseback through the dense forests and all but impassable roads from every county of the Commonwealth.⁶¹⁵

The twenty years that had passed since Marshall's father entered the House of Burgesses had brought changes in the appearance and deportment of Virginia's legislative body corresponding to those in the government of the newly established State. But few elegancies of velvet coat, fine lace, silk stocking, and silver buckle were to be seen in the Virginia Legislature of 1783. Later these were to reappear to some extent; but at the close of the Revolution democracy was rampant, and manifested itself in clothing and manners as well as in curious legislation and strange civil convulsions.

The visitor at a session of the Old Dominion's lawmakers beheld a variegated array – one member in homespun trousers thrust into high boots; still another with the fringed Indian leggings and hunting-shirt of the frontier. Some wore great-coats, some jackets, and, in general, an ostentatious disregard of fashionable apparel prevailed, which occasional silk knee-breeches and stockings emphasized.

The looker-on would have thought this gathering of Virginia lawmakers to be anything but a deliberative body enacting statutes for the welfare of over four hundred thousand people. An eye-witness records that movement, talk, laughter went on continuously; these Solons were not quiet five minutes at a time.⁶¹⁶ All debating was done by a very few men.⁶¹⁷ The others "for most part … without clear … ideas, with little education or knowledge … merely … give their votes."⁶¹⁸

Adjoining the big room where this august assembly sat, was an anteroom; and at the entrance between these two rooms stood a burly doorkeeper, who added to the quiet and gravity of the proceedings by frequently calling out in a loud voice the names of members whom constituents or visitors wanted to see; and there was a constant running back and forth. The anteroom itself was a scene of conversational tumult. Horse-racing, runaway slaves, politics, and other picturesque matters were the subjects discussed.⁶¹⁹ Outsiders stood in no awe of these lawgivers of the people and voiced their contempt, ridicule, or dislike quite as freely as their approval or admiration.⁶²⁰

Into this assembly came John Marshall in the fall of 1782. Undoubtedly his father had much to do with his son's election as one of Fauquier County's representatives. His predominant influence, which had made Thomas Marshall Burgess, Sheriff, and Vestryman before the Revolution, had been increased by his admirable war record; his mere suggestion that his son should be sent to the House of Delegates would have been weighty. And the embryo attorney wanted to go, not so much as a step in his career, but because the Legislature met in the town where Mary Ambler lived. In addition to his father's powerful support, his late comrades, their terms of enlistment having expired, had returned to their homes and were hotly enthusiastic for their captain.⁶²¹ He was elected almost as a matter of course.

No one in that motley gathering called the House of Delegates was dressed more negligently than this young soldier-lawyer and politician from the backwoods of Fauquier County. He probably wore the short "round about" jacket, which was his favorite costume. And among all that free-and-easy crowd no one was less constrained, less formal or more sociable and "hail-fellow, well-met" than this black-eyed, laughter-loving representative from the up country.

But no one had a sounder judgment, a more engaging personality, or a broader view of the drift of things than John Marshall. And notable men were there for him to observe; vast forces moving for him to study. Thomas Jefferson had again become a member of the House after his vindication from threatened impeachment. Patrick Henry was a member, too, and William Cabell, Richard Henry Lee, Benjamin Harrison, and other men whose names have become historic. During Marshall's later years in the Legislature, James Madison, George Mason, William Grayson, Edmund Randolph, George Nicholas, and others of like stature became Marshall's colleagues.

It took eighteen days to organize the House at the first session John Marshall attended.⁶²² The distance that members had to come was so great, traveling so hard and slow, that not until November 9 had enough members arrived to make a quorum.⁶²³ Thomas Jefferson and Patrick Henry were two of the absent and several times were ordered to be taken into the custody of the sergeant-at-arms.⁶²⁴ The Journal for Friday, November 8, gravely announces that "it was ordered that Mr. Thomas Jefferson, one of the members for Albemarle county who was taken into the custody of a special messenger by Mr. Speaker's warrant, agreeable to an order of the 28th ult., be discharged out of custody; it appearing to the House that he has good cause for his present non-attendance."⁶²⁵

Marshall must have favorably impressed the Speaker; for he was immediately appointed a member of the important Committee for Courts of Justice;⁶²⁶ and two days later a member of a special committee "To form a plan of national defense against invasions"; to examine into the state of public arms, accouterments, and ammunition, and to consult with the Executive "on what assistance they may want from the Legislature for carrying the plan into execution."⁶²⁷ Two days afterwards Marshall was appointed on a special committee to frame a bill to amend the ordinance of Convention.⁶²⁸

His first vote was for a bill to permit John M'Lean, who, because of illness, went to England before the outbreak of the war, and who had returned, to remain in Virginia and live with his family.⁶²⁹ Marshall's next two votes before taking his place as a member of the Council of State are of no moment except as indicating the bent of his mind for honest business legislation and for a strong and efficient militia.⁶³⁰ During November, Marshall was appointed on several other committees.⁶³¹ Of these, the most important was the select committee to bring in a bill for the reorganization of the militia,⁶³² which reported a comprehensive and well-drawn measure that became a law.⁶³³ He was also on the Standing Committee of Privileges and Elections.⁶³⁴

The Virginia Legislature, during these years, was not a body to inspire respect.⁶³⁵ Madison had a great contempt for it and spoke with disgust of the "temper of the Legislature & the wayward course of its proceedings."⁶³⁶ Indeed, the entire government of the State was an absurd medley of changing purposes and inefficiency. "Nothing," wrote Madison to Jefferson, "can exceed the confusion which reigns throughout our Revenue department… This confusion indeed runs through all of our public affairs, and must continue as long as the present mode of legislating continues"; the method of drawing bills "must soon bring our laws and our Legislature into contempt among all orders of Citizens."⁶³⁷

Nor did Virginia's lawmakers improve for several years. Madison in 1787 advised Washington that "The proceedings of the Assembly are, as usual, rapidly degenerating with the progress of the session."⁶³⁸ And the irritated soldier at Mount Vernon responded with characteristic heat that "Our Assembly has been … employed … chiefly in rectifying some of the mistakes of the last, and committing new ones for emendations at the next."⁶³⁹ Washington, writing to Lafayette of American affairs in 1788, said, with disgust, that "Virginia in the very last session … was about to pass some of the most extravagant and preposterous edicts … that ever stained the leaves of a legislative code."⁶⁴⁰

Popular as he was with the members of the Legislature, Marshall shared Madison's opinion of their temper and conduct. Of the fall session of the Assembly of 1783, he writes to Colonel Levin Powell: "This long session has not produced a single bill of Public importance except that for the readmission of Commutables.⁶⁴¹ … It ought to be perfect as it has twice passed the House. It fell the first time (after an immensity of labor and debate) a sacrifice to the difference of opinion subsisting in the House of Delegates and the Senate with respect to a money bill. A bill for the regulation of elections and inforcing the attendance of members is now on the Carpet and will probably pass.⁶⁴²… It is surprising that Gentlemen of character cannot dismiss their private animosities, but will bring them in the Assembly."⁶⁴³

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

"The Commutable bill,"⁶⁴⁴ writes he, "has at length pass'd and with it a suspension of the collections of taxes till the first of January next… Colo. Harry Lee of the Legionary corps" is to take the place of "Colọ R. H. Lee" whose "services are lost to the Assembly forever"; and Marshall does not know "whether the public will be injur'd by the change." Since the passage of the "Commutable bill … the attention of the house has been so fix'd on the Citizen bill that they have scarcely thought on any other subject… Col. [George] Nicholas (politician not fam'd for hitting a medium) introduced one admitting into this country every species of Men except Natives who had borne arms against the state… Mr. Jones introduc'd by way of amendment, one totally new and totally opposite to that which was the subject of deliberation. He spoke with his usual sound sense and solid reason. Mr. Henry opposed him.

"The Speaker replied with some degree of acrimony and Henry retorted with a good deal of tartness but with much temper; 'tis his peculiar excellence when he altercates to appear to be drawn unwillingly into the contest and to throw in the eyes of others the whole blame on his adversary. His influence is immense."⁶⁴⁵

Marshall's strange power of personality which, in after years, was so determining an influence on the destiny of the country, together with the combined influence of his father and of the State Treasurer, Jacquelin Ambler, Marshall's father-in-law, now secured for the youthful legislator an unusual honor. Eleven days after the House of Delegates had organized, Marshall was elected by joint ballot of the Senate and the House a member of the Council of State,⁶⁴⁶ commonly called the Executive Council. The Journal of the Council for November 20, 1782, records: "John Marshall esquire having been elected a Member of the Privy Council or Council of State in the room of John Bannister esquire who hath resigned and producing a Certificate from under the hand of Jaq. Ambler esqr of his having qualified according to law; he took his seat at the board."⁶⁴⁷

Marshall had just turned his twenty-seventh year, and the Council of State was supposed to be made up of men of riper years and experience. Older men, and especially the judges of the courts, resented the bestowal of this distinction upon so youthful a member serving his first term. Edmund Pendleton, Judge of the High Court of Chancery and President of the Court of Appeals, wrote to Madison that: "Young Mr. Marshall is elected a Councillor… He is clever, but I think too young for that department, which he should rather have earned as a retirement and reward, by ten or twelve years hard service in the Assembly."⁶⁴⁸

The Council consisted of eight members elected by the Legislature either from the delegates or from the people at large. It was the Governor's official cabinet and a constitutional part of the executive power. The Governor consulted the Council on all important matters coming before him; and he appointed various important officers only upon its advice.⁶⁴⁹

The Constitution of Virginia of 1776 was the basis upon which was built one of the most perfect political machines ever constructed; and this machine in later years came to be Marshall's great antagonist. As a member of the Council of State, Marshall learned by actual experience the possible workings of this mechanism, first run by Patrick Henry, perfected by Thomas Jefferson, and finally developed to its ultimate efficiency by Spencer Roane and Thomas Ritchie.⁶⁵⁰ Thus Marshall took part in the appointment of surveyors, justices of the peace, tobacco inspectors, and other officers;⁶⁵¹ and passed on requisitions from other States for the delivery of fugitive criminals.⁶⁵²

Marshall's signature to the minutes of the Council is totally unlike that of his more mature years, as, indeed, is the chirography of his letters of that period. He signed the Council records in large and dashing hand with flourishes – it is the handwriting of a confident, care-free, rollicking young man with a tinge of the dare-devil in him. These signatures are so strangely dissimilar to his later ones that they deserve particular attention. They denote Marshall's sense of his own importance and his certainty of his present position and future prospects.

The criticisms from the judges – first expressed by Pendleton, before whom Marshall was trying to practice law – of his membership of the Executive Council continued. Because of these objections, Marshall finally resigned and at once sought another election from his native county to the House of Delegates. The accepted version of this incident is that Marshall resigned from the Executive Council because the duties of that position took too much time from his profession; and that, without his request or desire, his old neighbors in Fauquier, from "their natural pride in connecting his rising name with their county, spontaneously elected him to the Legislature."⁶⁵³

Thus does greatness, once achieved, throw upon a past career a glory that dazzles the historian's eye; and the early steps of advancement are seen and described as unasked and unwished honors paid by a discerning public to modest and retiring merit. Thus, too, research and fact are ever in collision with fancy and legend. The cherished story about Marshall's resignation from the Council and "spontaneous" election to the Legislature from his home county is a myth. The discontent of the judges practically forced him out of the Council and he personally sought another election from Fauquier County to the House of Delegates. Marshall himself gives the true account of these important incidents.

"I am no longer a member of the Executive [Council]," Marshall informs his friend James Monroe, "the opinion of the Judges with regard to a Councillor's standing at the bar determined me to retire from the Council board. Every person is now busied about the ensuing election." Certainly Marshall was thus occupied; for he writes Monroe that "I had made a small excursion into Fauquier to enquire into the probability of my being chosen by the people, should I offer as a candidate at the next election." Marshall tells the political news, in which he shows minute information, and finally advises Monroe that "I have been maneuvering amazingly to turn your warrants into cash if I succeed I shall think myself a first rate speculator."⁶⁵⁴

Marshall's personal attention⁶⁵⁵ to his candidacy bore fruit; and for the second time he was chosen as Delegate from Fauquier, although he now lived in Henrico County.⁶⁵⁶

When the Legislature convened, nine days again passed before enough members were in Richmond to make up a House.⁶⁵⁷ Marshall was among the tardy. On May 13, the sergeant-at-arms was ordered to take him and other members into custody; and later in the day he and four others were brought in by that officer and "admitted to their seats on paying fees."⁶⁵⁸

He was at once appointed to his old place on the Committee for Courts of Justice and upon the immensely important Standing Committee on Propositions and Grievances, to which was referred the flood of petitions of soldiers and officers, the shower of applications of counties and towns for various laws and other matters of pressing local and personal concern in every part of Virginia.⁶⁵⁹ To the cases of his old comrades in arms who applied to the Legislature for relief, Marshall was particularly attentive.⁶⁶⁰ He became the champion of the Revolutionary veterans, most of whom were very poor men.⁶⁶¹

Upon Washington's suggestion a bill was brought in for the relief of Thomas Paine by vesting in him a moderate tract of public lands. Upon the third reading it was "committed to a committee of the whole house" and there debated. Marshall, who apparently led the fight for Paine, "read in his place" several amendments. But notwithstanding Washington's plea, the immense services of Paine to the American cause during the Revolution, and the amendments which, obviously, met all objections, the bill was defeated.⁶⁶²

Numerous things of human interest happened during this session which show the character of the Legislature and the state of the people. An Englishman named Williamson⁶⁶³ had gone to Essex County a year before by permission of the Governor, but in violation of the law against British refugees. When he refused to leave, the people tarred and feathered him and drove him out of the country in this condition.⁶⁶⁴ The Attorney-General began prosecutions against the leaders of the mob; and the offending ones petitioned the Legislature to interfere. The petition was referred to the Committee on Propositions and Grievances⁶⁶⁵ of which Marshall was a member. This committee reported that the petition ought to be granted "and that all irregularities committed by any citizen of this state on the person or properties of refugees previous to the ratification of the definitive treaty of peace … should be indemnified by law and buried in utter oblivion."⁶⁶⁶ But when the bill came to a vote, it was defeated.⁶⁶⁷

It was reported to the House that a certain John Warden had insulted its dignity by saying publicly that if the House had voted against paying the British debts, some of its members had voted against paying for the coats on their backs – a charge which was offensively true. The Committee on Privileges and Elections was instructed to take this serious matter up and order the offender before it. He admitted the indiscretion and apologized for it. The committee read Warden's written acknowledgment and apology before the House and thus he was purged of the contempt of that sensitive body.⁶⁶⁸

A William Finnie, who had been deputy quartermaster in the military service, had purchased, at the request of the Board of War, a large quantity of boots for a corps of cavalry in active service and then on the march. Although the seller of the boots knew that they were bought for the public service, he sued Finnie and secured judgment against him, which was on the point of being executed. Finnie petitioned the Legislature that the debt be paid by the State. The Committee on Propositions and Grievances took charge of this petition, reported the facts to be as Finnie had stated them, and recommended that the debt "ought to be paid him by the public and charged to the United States."⁶⁶⁹ But the House rejected the resolution. Incidents like these, as well as the action of the Legislature and the conduct of the people themselves, had their influence on the radical change which occurred in Marshall's opinions and point of view during the decade after the war.

Marshall was appointed on many special committees to prepare sundry bills during this session. Among these was a committee to frame a bill to compel payment by those counties that had failed to furnish their part of the money for recruiting Virginia's quota of troops to serve in the Continental army. This bill was passed.⁶⁷⁰

A vote which gives us the first sight of Marshall's idea about changing a constitution was taken during this session. Augusta County had petitioned the Legislature to alter Virginia's fundamental law. The committee reported a resolution against it, "such a measure not being within the province of the House of Delegates to assume; but on the contrary, it is the express duty of the representatives of the people at all times, and on all occasions, to preserve the same [the Constitution] inviolable, until a majority of all the people shall direct a reform thereof."⁶⁷¹

Marshall voted to amend this resolution by striking out the words quoted. Thus, as far as this vote indicates, we see him standing for the proposition that a form of government could be changed by convention, which was the easiest, and, indeed, at that time the only practicable, method of altering the constitution of the State. Madison also favored this plan, but did nothing because of Patrick Henry's violent opposition. The subject was debated for two days and the project of a convention with full powers to make a new Constitution was overwhelmingly defeated, although nearly all of the "young men of education & talents" were for it.⁶⁷²

A few of the bills that Marshall voted for or reported from committee are worthy of note, in addition to those which had to do with those serious questions of general and permanent historic consequence to the country presently to be considered. They are important in studying the development of Marshall's economic and governmental views.

In 1784, Washington brought vividly before the Virginia Legislature the necessity of improving the means of transportation.⁶⁷³ At the same time this subject was also taken up by the Legislature of Maryland. A law was passed by the Virginia Legislature for "opening and extending the navigation of the Potowmack river from tidewater to the highest place practicable on the north branch"; and Maryland took similar action. These identical laws authorized the forming of a corporation called the "Potowmack Company" with a quarter of a million dollars capital. It was given the power of eminent domain; was authorized to charge tolls "at all times forever hereafter"; and the property and profits were vested in the shareholders, "their heirs and assigns forever."⁶⁷⁴

John Marshall voted for this bill, which passed without opposition.⁶⁷⁵ He became a stockholder in the corporation and paid several assessments on his stock.⁶⁷⁶ Thus early did Marshall's ideas on the nature of a legislative franchise to a corporation acquire the vitality of property interest and personal experience.

Marshall was on the Committee for Courts of Justice during every session when he was a member of the House and worked upon several bills concerning the courts. On November 2, 1787, he was appointed upon a special committee to bring in a bill "to amend the act establishing the High Court of Chancery."⁶⁷⁷ Three weeks later he reported this bill to the House;⁶⁷⁸ and when the bill passed that body it was "ordered that Mr. Marshall do carry the bill to the Senate and desire their concurrence." The committee which drew this bill was made up from among the ablest men in the House: Henry, Mason, Nicholas, Matthews, Stuart, and Monroe being the other members,⁶⁷⁹ with Marshall who was chairman.

The act simplified and expedited proceedings in equity.⁶⁸⁰ The High Court of Chancery had been established by an act of the Virginia Legislature of 1777.⁶⁸¹ This law was the work of Thomas Jefferson. It contained one of the reforms so dear to his heart during that period – the right of trial by jury to ascertain the facts in equity causes. But six years' experience proved that the reform was not practical. In 1783 the jury trial in equity was abolished, and the old method that prevailed in the courts of chancery before the Revolution was reinstated.⁶⁸² With this exception the original act stood in Virginia as a model of Jeffersonian reforms in legal procedure; but under its provisions, insufferable delays had grown up which defeated the ends of justice.⁶⁸³ It was to remedy this practical defect of Jefferson's monumental law that Marshall brought in the bill of 1787.

But the great matters which came before the Legislature during this period, between the ending of the war and the adoption of the Constitution, were: The vexed question of the debts owed by Virginia planters to British subjects; the utter impotence of the so-called Federal Government and the difficulty of getting the States to give it any means or authority to discharge the National debts and uphold the National honor; and the religious controversy involving, at bottom, the question of equal rights for all sects.⁶⁸⁴

The religious warfare⁶⁸⁵ did not greatly appeal to Marshall, it would seem, although it was of the gravest importance. Bad as the state of religion was at the beginning of the Revolution, it was worse after that struggle had ended. "We are now to rank among the nations of the world," wrote Mason to Henry in 1783; "but whether our independence shall prove a blessing or a curse must depend upon our wisdom or folly, virtue or wickedness… The prospect is not promising… A depravity of manners and morals prevails among us, to the destruction of all confidence between man and man."⁶⁸⁶ The want of public worship "increases daily; nor have we left in our extensive State three churches that are decently supported," wrote Mrs. Carrington, the sister of John Marshall's wife, a few years later.⁶⁸⁷

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER VII
LIFE OF THE PEOPLE: COMMUNITY ISOLATION

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

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

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

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

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

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

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

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

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

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

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

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

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

When Washington, as President, was on his way to meet Congress, his carriage stuck in the mud, and only after it had been pried up with poles and pulled out by ropes could the Father of his Country proceed on his journey;⁷⁶⁵ and this, too, over the principal highway of Maryland. "My nerves have not yet quite recovered the shock of the wagon," wrote Samuel Johnston of a stage trip from Baltimore to New York two years after our present Government was established.⁷⁶⁶ Richard Henry Lee objected to the Constitution, because, among other things, "many citizens will be more than three hundred miles from the seat of this [National] government";⁷⁶⁷ and "as many assessors and collectors of federal taxes will be above three hundred miles from the seat of the federal government as will be less."⁷⁶⁸

The best road throughout its course, in the entire country, was the one between Boston and New York; yet the public conveyance which made regular trips with relays of horses in the most favorable season of the year usually took an entire week for the journey.⁷⁶⁹ The stage was "shackling"; the horses' harness "made of ropes"; one team hauled the stage only eighteen miles; the stop for the night was made at ten o'clock, the start next morning at half-past two; the passengers often had to "help the coachman lift the coach out of the quagmire."⁷⁷⁰

Over parts even of this, the finest long highway in the United States, the stage had to struggle against rocks and to escape precipices. "I knew not which to admire the most in the driver, his intrepidity or dexterity. I cannot conceive how he avoided twenty times dashing the carriage to pieces,"⁷⁷¹ testifies a traveler. In central Massachusetts, the roads "were intolerable" even to a New Englander; and "the country was sparsely inhabited by a rude population."⁷⁷² In Rhode Island not far from Providence the traveler was forced to keep mounting and dismounting from his horse in order to get along at all.⁷⁷³ Dr. Taylor, in the Massachusetts Convention of 1788, arguing for frequent elections, said that it would take less than three weeks for Massachusetts members of Congress to go from Boston to Philadelphia.⁷⁷⁴

Farmers only a short distance from New York could not bring their produce to the city in the winter because the roads were impassable.⁷⁷⁵ Up State, in Cooper's Otsego settlement, "not one in twenty of the settlers had a horse and the way lay through rapid streams, across swamps or over bogs… If the father of a family went abroad to labour for bread, it cost him three times its value before he could bring it home."⁷⁷⁶ As late as 1790, after forty thousand acres in this region had been taken up "by the poorest order of men … there were neither roads nor bridges"; and about Otsego itself there was not even "any trace of a road."⁷⁷⁷ Where Utica now stands, the opening through the wilderness, which went by the name of a road, was so nearly impassable that a horseback traveler could make no more than two miles an hour over it. Rocks, stumps, and muddy holes in which the horse sank, made progress not only slow and toilsome, but dangerous.⁷⁷⁸

Twenty days was not an unusual time for ordinary wagons, carrying adventurous settlers to the wilderness west of the Alleghanies, to cross Pennsylvania from Philadelphia to Pittsburg;⁷⁷⁹ and it cost a hundred and twenty dollars a ton to haul freight between these points.⁷⁸⁰ Three years after our present Government was established, twenty out of twenty-six lawsuits pending in Philadelphia were settled out of court "rather than go ninety miles from Phila for trial."⁷⁸¹

Talleyrand, journeying inland from the Quaker City about 1795, was "struck with astonishment" at what he beheld: "At less than a hundred and fifty miles distance from the Capital," he writes, "all trace of men's presence disappeared; nature in all her primeval vigor confronted us. Forests old as the world itself; decayed plants and trees covering the very ground where they once grew in luxuriance." And Talleyrand testifies that the fields, only a few miles' walk out of the "cities," had been "mere wildernesses of forest" at the time the Constitution was adopted.⁷⁸²

"The length and badness of the roads from hence [Mount Vernon] to Philadelphia" made Washington grumble with vexation and disgust;⁷⁸³ and Jefferson wrote of the President's Southern tour in 1791: "I shall be happy to hear that no accident has happened to you in the bad roads … that you are better prepared for those to come by lowering the hang [body] of your carriage and exchanging the coachman for two postilions … which [are] … essential to your safety."⁷⁸⁴

No more comfortable or expeditious, if less dangerous, was travel by boat on the rivers. "Having lain all night in my Great Coat and Boots in a berth not long enough for me," chronicles Washington of this same Presidential journey, "we found ourselves in the morning still fast aground."⁷⁸⁵

So difficult were the New Jersey roads that the stout and well-kept harness with which Washington always equipped his horses was badly broken going through New Jersey in 1789.⁷⁸⁶ "The roads [from Richmond to New York] thro' the whole were so bad that we could never go more than three miles an hour, some times not more than two, and in the night, but one," wrote Jefferson⁷⁸⁷ in March, 1790.

A traveler starting from Alexandria, Virginia, to visit Mount Vernon, nine miles distant, was all day on the road, having become lost, in the "very thick woods." So confusing was the way through this forest that part of this time he was within three miles of his destination.⁷⁸⁸ Twelve years after our present Government was established James A. Bayard records of his journey to the Capital: "Tho' traveling in the mail stage … we were unable to move at more than the rate of two or three miles an hour."⁷⁸⁹

Throughout Virginia the roads were execrable and scarcely deserved the name. The few bridges usually were broken.⁷⁹⁰ The best road in the State was from Williamsburg, the old Capital, to Richmond, the new, a distance of only sixty-three miles; yet, going at highest speed, it required two days to make the trip.⁷⁹¹ Traveling in Virginia was almost exclusively by horseback; only negroes walked.⁷⁹² According to Grigsby, the familiar vision in our minds of the picturesque coach comfortably rolling over attractive highways, with postilions and outriders, which we now picture when we think of traveling in old Virginia, is mostly an historical mirage; for, says Grigsby, "coaches were rarely seen. There were thousands of respectable men in the Commonwealth who had never seen any other four-wheeled vehicle than a wagon and there were thousands who had never seen a wagon" at the time when the Constitution was ratified.⁷⁹³

If horseback journeys were sore trials to the rider, they were desperately hard and sometimes fatal to the poor brute that carried him. In crossing unfordable rivers on the rude ferryboats, the horses' legs frequently were broken or the animals themselves often killed or drowned.⁷⁹⁴ From Fredericksburg to Alexandria the roads were "frightfully bad."⁷⁹⁵ As late as 1801 the wilderness was so dense just above where the City of Washington now stands that Davis called it "the wilds of the Potomac." In most parts of Virginia a person unacquainted with the locality often became lost in the forests.⁷⁹⁶ South of Jamestown the crude and hazardous highways led through "eternal woods."⁷⁹⁷

A short time before the Revolution, General Wilkinson's father bought five hundred acres on the present site of the National Capital, including the spot where the White House now stands; but his wife refused to go there from a little hamlet near Baltimore where her family then lived, because it was so far away from the settlements in the backwoods of Maryland.⁷⁹⁸ A valuable horse was stolen from a Virginia planter who lived one hundred and forty miles from Richmond; but, although the thief was known, the expense of going to the Capital with witnesses was double the value of the horse, and so the planter pocketed his loss.⁷⁹⁹ It cost more to transport tobacco from Augusta County, Virginia, to market than the tobacco was worth, so difficult and expensive was the carriage.⁸⁰⁰

A sergeant in a Virginia regiment during the Revolutionary War, living in a part of the State which at present is not two hours' ride from the Capital, petitioned the House of Delegates in 1790 for payment of his arrears because he lived so far away from Richmond that he had found it impossible to apply within the time allowed for the settlement of his accounts in the regular way.⁸⁰¹ In 1785 the price of tobacco on the James River or the Rappahannock, and in Philadelphia varied from twenty to ninety-five per cent, although each of these places was "the same distance from its ultimate market,"⁸⁰² so seriously did want of transportation affect commerce. "The trade of this Country is in a deplorable Condition … the loss direct on our produce & indirect on our imports is not less than 50 per ct.," testifies Madison.⁸⁰³

Only in the immediate neighborhood of Philadelphia, Boston,⁸⁰⁴ or New York, neither of which "cities" was as large as a moderate-sized inland town of to-day, were highways good, even from the point of view of the eighteenth century. In all other parts of America the roads in the present-day sense did not exist at all. Very often such trails as had been made were hard to find and harder to keep after they had been found. Near the close of the Revolution, Chastellux became tangled up in the woods on his way to visit Jefferson at Monticello "and travelled a long time without seeing any habitation."⁸⁰⁵

Whoever dared to take in North Carolina what, at present, would be a brief and pleasant jaunt, then had to go through scores of miles of "dreary pines" in which the traveler often lost his way and became bewildered in the maze of the forest.⁸⁰⁶ Again, the wanderer would find himself in a desolation of swamp and wood without the hint of a highway to follow out of it; and sleeping on the ground beneath the trees of this wilderness, with only wild animals about him, was, for the ordinary traveler, not an uncommon experience.⁸⁰⁷

Even when the road could be traced, bears would follow it, so much was it still a part of their savage domain.⁸⁰⁸ The little traveling possible when the weather was good was sometimes entirely suspended for days after a rain or snowfall, even out of a "city" like Baltimore.⁸⁰⁹ Six years after the Constitution was adopted, Talleyrand found the buildings of that ambitious town "disput[ing] the ground with trees whose stumps have not yet been removed."⁸¹⁰

Such were the means of communication of a people scattered over a territory of almost half a million square miles. The total population of the United States was about three and a quarter millions; the same part of the country to-day has a population of not far from fifty-five millions. Including cities, and adding to these the more thickly settled portions adjoining them, there were not in the original States seven men, women, and children, all told, to the square mile. If we add Kentucky, Tennessee, Ohio, Illinois, and Indiana, into which the restless settlers already were moving, the people then living in the United States were fewer than five persons to the square mile.

The various little clusters of this scanty and widely separated population were almost entirely out of touch one with another. Inhabitants were scattered through those far-flung stretches called the United States, but they were not a people. Scarcely any communication existed between them; while such a thing as mail service was unknown to all but a comparatively few thousands. It required six days and sometimes nine to carry mail between Boston and New York. As late as 1794 a letter of Jefferson, then in Charlottesville, Virginia, to Madison at Philadelphia, reached the latter nine days after it was sent; and another letter between the same correspondents was eight days on the journey.⁸¹¹

Yet this was unusually expeditious. One month later, on January 26, 1795, Madison wrote Jefferson that "I have received your favor of Decṛ 28, but [not] till three weeks after the date of it."⁸¹² Summer, when the post-riders made better time, seemed not greatly to increase the dispatch of mail; for it took more than a month for a letter posted in New York in that season of the year to reach an accessible Virginia county seat.⁸¹³ Letters from Richmond, Virginia, to New York often did not arrive until two months after they were sent.⁸¹⁴ But better time was frequently made and a letter between these points was, commonly, hurried through in a month.⁸¹⁵

Many weeks would go by before one could send a letter from an interior town in Pennsylvania. "This Uniontown is the most obscure spot on the face of the globe… I have been here seven or eight weeks without one opportunity of writing to the land of the living," complains a disgusted visitor.⁸¹⁶ A letter posted by Rufus King in Boston, February 6, 1788, to Madison in New York was received February 15;⁸¹⁷ and although anxiously awaiting news, Madison had not, on February 11, heard that Massachusetts had ratified the Constitution, although that momentous event had occurred five days before.⁸¹⁸ New York first learned of that historic action eight days after it was taken.⁸¹⁹ But for the snail-like slowness of the post, the Constitution would certainly have been defeated in the Virginia Convention of 1788.⁸²⁰

Transatlantic mail service was far more expeditious considering the distance; a letter from Jay in London reached Wolcott at Philadelphia in less than eight weeks.⁸²¹ But it sometimes required five months to carry mail across the ocean;⁸²² even this was very much faster than one could travel by land in America. Four weeks from Cowes, England, to Lynnhaven Bay, Virginia, was a record-breaking voyage.⁸²³

Such letters as went through the post-offices were opened by the postmasters as a matter of course, if these officials imagined that the missives contained information, or especially if they revealed the secret or familiar correspondence of well-known public men.⁸²⁴ "By passing through the post-office they [letters] should become known to all" men, Washington cautioned Lafayette in 1788.⁸²⁵ In 1791, the first year of the Post-Office under our present Government, there were only eighty-nine post-offices in the entire country.⁸²⁶ "As late as 1791 there were only six post-offices in New Jersey and none south of Trenton."⁸²⁷

Yet letters were the principal means by which accounts of what was happening in one part of the country were made known to the people who lived in other sections; and this personal correspondence was by far the most trustworthy source of information, although tinctured as it naturally was by the prejudice of the writer and often nothing but report of mere rumor.

CHAPTER VIII
POPULAR ANTAGONISM TO GOVERNMENT

Mankind, when left to themselves, are unfit for their own government. (George Washington, 1786.)

There are subjects to which the capacities of the bulk of mankind are unequal and on which they must and will be governed by those with whom they happen to have acquaintance and confidence. (James Madison, 1788.)

I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself. (John Marshall, 1787.)

"Government, even in its best state," said Mr. Thomas Paine during the Revolution, "is but a necessary evil."⁸⁹³ Little as the people in general had read books of any kind, there was one work which most had absorbed either by perusal or by listening to the reading of it; and those who had not, nevertheless, had learned of its contents with applause.

Thomas Paine's "Common Sense," which Washington and Franklin truly said did so much for the patriot cause,⁸⁹⁴ had sown dragon's teeth which the author possibly did not intend to conceal in his brilliant lines. Scores of thousands interpreted the meaning and philosophy of this immortal paper by the light of a few flashing sentences with which it began. Long after the British flag disappeared from American soil, this expatriated Englishman continued to be the voice of the people;⁸⁹⁵ and it is far within the truth to affirm that Thomas Paine prepared the ground and sowed the seed for the harvest which Thomas Jefferson gathered.

"Government, like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise." And again, "Society is produced by our wants, and government by our wickedness."⁸⁹⁶ So ran the flaming maxims of the great iconoclast; and these found combustible material.

Indeed, there was, even while the patriots were fighting for our independence, a considerable part of the people who considered "all government as dissolved, and themselves in a state of absolute liberty, where they wish always to remain"; and they were strong enough in many places "to prevent any courts being opened, and to render every attempt to administer justice abortive."⁸⁹⁷ Zealous bearers, these, of the torches of anarchy which Paine's burning words had lighted. Was it not the favored of the earth that government protected? What did the poor and needy get from government except oppression and the privilege of dying for the boon? Was not government a fortress built around property? What need, therefore, had the lowly for its embattled walls?

Here was excellent ammunition for the demagogue. A person of little ability and less character always could inflame a portion of the people when they could be assembled. It was not necessary for him to have property; indeed, that was a distinct disadvantage to the Jack Cades of the period.⁸⁹⁸ A lie traveled like a snake under the leaves and could not be overtaken;⁸⁹⁹ bad roads, scattered communities, long distances, and resultant isolation leadened and delayed the feet of truth. Nothing was too ridiculous for belief; nothing too absurd to be credited.

A Baptist preacher in North Carolina was a candidate for the State Convention to pass upon the new National Constitution, which he bitterly opposed. At a meeting of backwoodsmen in a log house used for a church, he told them in a lurid speech that the proposed "Federal City" (now the District of Columbia) would be the armed and fortified fortress of despotism. "'This, my friends,' said the preacher, 'will be walled in or fortified. Here an army of 50,000, or, perhaps 100,000 men, will be finally embodied and will sally forth, and enslave the people who will be gradually disarmed.'" A spectator, who attempted to dispute this statement, narrowly escaped being mobbed by the crowd. Everything possible was done to defeat this ecclesiastical politician; but the people believed what he said and he was elected.⁹⁰⁰

So bizarre an invention as the following was widely circulated and generally believed as late as 1800: John Adams, it was said, had arranged, by intermarriage, to unite his family with the Royal House of Great Britain, the bridegroom to be King of America. Washington, attired in white clothing as a sign of conciliation, called on Adams and objected; Adams rebuffed him. Washington returned, this time dressed in black, to indicate the solemnity of his protest. Adams was obdurate. Again the Father of his Country visited the stubborn seeker after monarchical relationship, this time arrayed in full regimentals to show his earnestness; Adams was deaf to his pleas. Thereupon the aged warrior drew his sword, avowing that he would never sheathe it until Adams gave up his treasonable purpose; Adams remained adamant and the two parted determined enemies.⁹⁰¹

Such are examples of the strange tales fed to the voracious credulity of the multitude. The attacks on personal character, made by setting loose against public men slanders which flew and took root like thistle seed, were often too base and vile for repetition at the present day, even as a matter of history; and so monstrous and palpably untruthful that it is difficult to believe they ever could have been circulated much less credited by the most gossip-loving.

Things, praiseworthy in themselves, were magnified into stupendous and impending menaces. Revolutionary officers formed "The Society of the Cincinnati" in order to keep in touch with one another, preserve the memories of their battles and their campfires, and to support the principles for which they had fought.⁹⁰² Yet this patriotic and fraternal order was, shouted the patriots of peace, a plain attempt to establish an hereditary nobility on which a new tyranny was to be builded. Jefferson, in Paris, declared that "the day … will certainly come, when a single fibre of this institution will produce an hereditary aristocracy which will change the form of our governments [Articles of Confederation] from the best to the worst in the world."⁹⁰³

Ædanus Burke,⁹⁰⁴ one of the Justices of the Supreme Court of South Carolina, wrote that the Society of the Cincinnati was "deeply planned"; it was "an hereditary peerage"; it was "planted in a fiery hot ambition, and thirst for power"; "its branches will end in Tyranny … the country will be composed only of two ranks of men, the patricians, or nobles, and the rabble."⁹⁰⁵ In France, Mirabeau was so aroused by Burke's pamphlet that the French orator wrote one of his own. Mirabeau called the Cincinnati "that nobility of barbarians, the price of blood, the off-spring of the sword, the fruit of conquest." "The distinction of Celts and Ostrogoths," exclaimed the extravagant Frenchman, "are what they claim for their inheritance."⁹⁰⁶

The "Independent Chronicle" of Boston was so excited that it called on "legislators, Governors, and magistrates and their ELECTORS" to suppress the Cincinnati because it "is concerted to establish a complete and perpetual personal discrimination between" its members "and the whole remaining body of the people who will be styled Plebeians."⁹⁰⁷

John Marshall was a member of this absurdly traduced patriotic fraternity. So were his father and fellow officers of our War for Independence. Washington was its commander. Were the grotesque charges against these men the laurels with which democracy crowned those who had drawn the sword for freedom? Was this the justice of liberty? Was this the intelligence of the masses? Such must have been the queries that sprang up in the minds of men like Marshall. And, indeed, there was sound reason for doubt and misgiving. For the nightmares of men like Burke and Mirabeau were pleasant dreams compared with the horrid visions that the people conjured.

Nor did this popular tendency to credit the most extraordinary tale, believe the most impossible and outrageous scandal, or accept the most impracticable and misshapen theory, end only in wholesome hatred of rank and distinction. Among large numbers there was the feeling that equality should be made real by a general division of property. Three years after peace had been established, Madison said he "strongly suspected" that many of the people contemplated "an abolition of debts public & private, and a new division of property."⁹⁰⁸ And Jay thought that "a reluctance to taxes, an impatience of government, a rage for property, and little regard to the means of acquiring it, together with a desire for equality in all things, seem to actuate the mass of those who are uneasy in their circumstances."⁹⁰⁹ The greed and covetousness of the people is also noted by all travelers.⁹¹⁰

Very considerable were the obligations "public and private" which Madison wrote his father that he "strongly suspected" a part of the country intended to repudiate. The public debt, foreign and domestic, of the Confederation and the States, at the close of the Revolutionary War, appeared to the people to be a staggering sum.⁹¹¹ The private debt aggregated a large amount.⁹¹² The financial situation was chaos. Paper money had played such havoc with specie that, in Virginia in 1786, as we have seen, there was not enough gold and silver to pay current taxes.⁹¹³ The country had had bitter experience with a fictitious medium of exchange. In Virginia by 1781 the notes issued by Congress "fell to 1000 for 1," records Jefferson, "and then expired, as it had done in other States, without a single groan."⁹¹⁴

Later on, foreigners bought five thousand dollars of this Continental scrip for a single dollar of gold or silver.⁹¹⁵ In Philadelphia, toward the end of the Revolution, the people paraded the streets wearing this make-believe currency in their hats, with a dog tarred and covered with paper dollars instead of feathers.⁹¹⁶ For land sold by Jefferson before paper currency was issued he "did not receive the money till it was not worth Oak leaves."⁹¹⁷

Most of the States had uttered this fiat medium, which not only depreciated and fluctuated within the State issuing it, but made trade between citizens of neighboring States almost impossible. Livingston found it a "loss to shop it in New York with [New] Jersey Money at the unconscionable discount which your [New York] brokers and merchants exact; and it is as damnifying to deal with our merchants here [New Jersey] in that currency, since they proportionably advance the price of their commodities."⁹¹⁸ Fithian in Virginia records that: "In the evening I borrowed of Ben Carter 15/ – I have plenty of money with me but it is in Bills of Philadelphia Currency and will not pass at all here."⁹¹⁹

Virginia had gone through her trial of financial fiction-for-fact, ending in a law fixing the scale of depreciation at forty to one, and in other unique and bizarre devices;⁹²⁰ and finally took a determined stand against paper currency.⁹²¹ Although Virginia had burned her fingers, so great was the scarcity of money that there was a formidable agitation to try inflation again.⁹²² Throughout the country there once more was a "general rage for paper money."⁹²³ Bad as this currency was, it was counterfeited freely.⁹²⁴ Such coin as existed was cut and clipped until Washington feared that "a man must travel with a pair of money scales in his pocket, or run the risk of receiving gold of one fourth less by weight than it counts."⁹²⁵

If there was not money enough, let the Government make more – what was a government for if not for that? And if government could not make good money, what was the good of government? Courts were fine examples of what government meant – they were always against the common people. Away with them! So ran the arguments and appeals of the demagogues and they found an answer in the breasts of the thoughtless, the ignorant, and the uneasy. This answer was broader than the demand for paper money, wider than the protest against particular laws and specific acts of administration. This answer also was, declared General Knox, "that the property of the United States … ought to be the common property of all. And he that attempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the earth." Knox was convinced that the discontented were "determined to annihilate all debts, public and private."⁹²⁶

Ideas and purposes such as these swayed the sixteen thousand men who, in 1787, followed Daniel Shays in the popular uprising in Massachusetts against taxes, courts, and government itself.⁹²⁷ "The restlessness produced by the uneasy situation of individuals, connected with lax notions concerning public and private faith, and erroneous⁹²⁸ opinions which confound liberty with an exemption from legal control, produced … unlicensed conventions, which, after voting on their own constitutionality, and assuming the name of the people, arrayed themselves against the legislature," was John Marshall's summary of the forces that brought about the New England rebellion.

The "army" of lawlessness, led by Shays, took the field, says Marshall, "against taxes, and against the administration of justice; and the circulation of a depreciated currency was required, as a relief from the pressure of public and private burdens, which had become, it was alleged, too heavy to be borne. Against lawyers and courts the strongest resentments were manifested; and to such a dangerous extent were these dispositions indulged, that, in many instances, tumultuous assemblages of people arrested the course of law, and restrained the judges from proceeding in the execution of their duty."

"The ordinary recourse to the power of the country was found insufficient protection," records Marshall, "and the appeals made to reason were attended with no beneficial effect. The forbearance of the government was attributed to timidity rather than moderation, and the spirit of insurrection appeared to be organized into a regular system for the suppression of courts."⁹²⁹ Such was Marshall's analysis of the Northern convulsion; and thus was strengthened in him that tendency of thought started at Valley Forge, and quickened in the Virginia House of Delegates.

"It rather appears to me," wrote David Humphries to Washington, in an attempt to explain the root of the trouble, "that there is a licentious spirit prevailing among many of the people; a levelling principle; and a desire of change; with a wish to annihilate all debts, public and private."⁹³⁰ Unjust taxes were given as the cause of the general dislike of government, yet those who composed the mobs erupting from this crater of anarchy, now located in New England, paid few or no taxes.

"High taxes are the ostensible cause of the commotions, but that they are the real cause is as far remote from truth as light from darkness," asserts Knox. "The people who are the insurgents have never paid any, or but very little taxes," testifies this stanch Revolutionary officer. "But," continues Knox, "they see the weakness of the government. They feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter, in order to remedy the former."⁹³¹

This condition brought to a head a distrust of the good sense, justice, and moderation of the people, which had been forming in the minds of many of the best and ablest men of the time.⁹³² "The knaves and fools of this world are forever in alliance," was the conclusion reached in 1786⁹³³ by Jay, who thought that the people considered "liberty and licentiousness" as the same thing.⁹³⁴ The patient but bilious Secretary of State felt that "the wise and the good never form the majority of any large society, and it seldom happens that their measures are uniformly adopted, or that they can always prevent being overborne themselves by the strong and almost never-ceasing union of the wicked and the weak."⁹³⁵ The cautious Madison was equally doubtful of the people: "There are subjects to which the capacities of the bulk of mankind are unequal and on which they must and will be governed by those with whom they happen to have acquaintance and confidence" was Madison's judgment.⁹³⁶

Washington, black with depression, decided and bluntly said "that mankind, when left to themselves, are unfit for their own government." Lee had suggested that Washington use his "influence" to quiet the disorders in New England; but, flung back Washington, "Influence is no government. Let us have one by which our lives, liberties, and properties will be secured, or let us know the worst at once… To be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible."⁹³⁷

"No morn ever dawned more favorably than ours did; and no day was ever more clouded than the present… We are fast verging to anarchy,"⁹³⁸ cried the great captain of our war for liberty. The wings of Washington's wrath carried him far. "Good God!" cried he, "Who, besides a Tory, could have foreseen, or a Briton predicted" the things that were going on! "The disorders which have arisen in these States, the present prospect of our affairs … seems to me to be like the vision of a dream. My mind can scarcely realize it as a thing in actual existence… There are combustibles in every State, which a spark might set fire to."⁹³⁹

Marshall echoed his old commander's views. The dreams of his youth were fading, his confidence in the people declining. He records for us his altered sentiments: "These violent, I fear bloody, dissensions in a state [Massachusetts] I had thought inferior in wisdom and virtue to no one in the union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over the bright prospect which the revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself."⁹⁴⁰ Thus wrote Marshall in 1787, when he was not yet thirty-two years old.

But Jefferson in Paris was beholding a different picture that strengthened the views which he and Marshall held in common when America, in arms, challenged Great Britain. "The Spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now & then. It is like a storm in the atmosphere." So wrote Jefferson after the Massachusetts insurrection had been quelled.⁹⁴¹

The author of our Declaration of Independence was tasting the delights of the charming French Capital at this time, but he also was witnessing the shallowness and stupidity of the peculiarly weak royalty and nobility; and although it was this same Royal Government that had aided us with men and money in our struggle to throw off the yoke of England, Jefferson's heart grew wrathful against it and hot for popular rule in France. Yet in the same apostrophe to rebellion, Jefferson declares that the French people were too shallow for self-rule. "This [French] nation," writes Jefferson, "is incapable of any serious effort but under the word of command."⁹⁴²

After having had months to think about it, this enraptured enthusiast of popular upheaval spread his wings and was carried far into crimson skies. "Can history produce an instance of rebellion so honourably conducted?" exclaimed Jefferson, of the Massachusetts anarchical outburst, nearly a year after it had ended; and continued thus: —

"God forbid! we should ever be 20 years without such a rebellion… What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms!.. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure."⁹⁴³

Thus did his contact with a decadent monarchy on the one hand and an enchanting philosophy on the other hand, help to fit him for the leadership of American radicalism. No better training for that mission could have been afforded. French thought was already challenging all forms of existing public control; it was a spirit Gamaliel which found in Jefferson an eager Saul at its feet; and American opinion was prepared for its doctrines. In the United States general dislike and denunciation of the established governments had uncovered the feeling against government itself which lay at the root of opposition to any stronger one.

The existing American system was a very masterpiece of weakness. The so-called Federal Government was like a horse with thirteen bridle reins, each held in the hands of separate drivers who usually pulled the confused and powerless beast in different directions. Congress could make treaties with foreign nations; but each of the States could and often did violate them at will. It could borrow money, but could not levy taxes or impose duties to pay the debt. Congress could get money only by making humble requests, called "requisitions," on the "sovereign" Commonwealths. It had to depend upon the whims of the various States for funds to discharge principal and interest of public obligations; and these springs of revenue, when not entirely dry, yielded so little that the Federal establishment was like to die of financial thirst.⁹⁴⁴

The requisitions of Congress upon the various States for money to pay the National obligations to foreign creditors were usually treated with neglect and often with contempt by those jealous and pompous "Sovereignties." "Requisitions are a perfect nullity where thirteen sovereign, independent, disunited States are in the habit of discussing and refusing compliance with them at their option. Requisitions are actually little better than a jest and a by-word throughout the land. If you tell the legislatures they have violated the treaty of peace, and invaded the prerogatives of the confederacy, they will laugh in your face."⁹⁴⁵ Thus raged Washington. "Congress cannot command money" even to redeem Americans held in slavery in Algiers,⁹⁴⁶ testified the powerless and despondent Secretary of State. Indeed, Congress amounted to so little that the delegates from many States often refused to attend.⁹⁴⁷

Though debts were great and financial confusion maddening, they furnished no solid excuse for the failure of the States to enable Congress to preserve American honor by the payment of our admitted National debt. Jay reviewed the situation and showed that "the resources of the country … notwithstanding all appearances to the contrary, are abundant… Our country is fertile, abounding in useful productions, and those productions in demand and bearing a good price."⁹⁴⁸ The general opinion appears to have been that the people did not want to support the Government.

"The treasury is empty, though the country abounds in resources, and our people are far more unwilling than unable to pay taxes," wrote Jay, early in 1787.⁹⁴⁹ Madison excused his support of the bill authorizing tobacco to be taken for specie in payment of taxes, upon the ground that it "could not be rejected without … exciting some worse project of a popular cast";⁹⁵⁰ and "by a fear that some greater evil under the name of relief to the people would be substituted."⁹⁵¹ Debt "made it extremely inconvenient to most people to submit to a regular government," was the conclusion Rutledge finally reached.⁹⁵²

But, whatever the cause, the States did not act. Washington thought it a combination of the scheming of demagogues and the ignorance and dishonesty of the people. "I think there is more wickedness than ignorance mixed in our councils… Ignorance and design are difficult to combat… To be so fallen! so lost!.. Virtue, I fear has in a great degree taken its departure from our land and the want of a disposition to do justice is the source of the national embarrassments; for, whatever guise or colorings are given to them, this I apprehend is the origin of the evils we now feel."⁹⁵³ Such was Washington's cry of despair four years after he had wrested American liberty from Great Britain.

Look where one will among the class of men of whom Washington was the highest representative, one finds that they believed the fountain head of the country's desperate conditions to be in the people themselves. Jay put this opinion in a nutshell when he said, "The mass of men are neither wise nor good."⁹⁵⁴ Not that these leaders despaired that an American People would finally be evolved who should realize the exalted expectations of the patriot leaders of the Revolution; not that out of the flux of popular heedlessness and dishonor, indifference and disorder, idleness and avarice, the nobler qualities of human nature would not, in the end, bring forth a nation and rule it for the happiness and well-being of its people. But they thought that only a strong government could fashion the clay and breathe into its nostrils the breath of life. "Virtue, like the other resources of a country, can only be drawn to a point and exerted by strong circumstances ably managed, or a strong government ably administered," said Jay.⁹⁵⁵

The shield of all this turmoil and baseness was the State Governments. "Their unreasonable jealousy of that body [Congress] and of one another … will, if there is not a change in the system, be our downfall as a nation," exclaimed Washington only a few months after peace had been established.⁹⁵⁶ It was the States, he declared, which made the Federal establishment "a half-starved, limping government, that appears to be always moving upon crutches and tottering at every step."⁹⁵⁷

It was the States which always were thwarting every plan for the general welfare; the States which were forever impairing the National obligations; the States which bound hand and foot the straw man of the central power, clothed it in rags and made it a mere scarecrow of government. And it was State pride, prejudice, and ignorance which gave provincial demagogues their advantage and opportunity. The State Governments were the "people's" Governments; to yield State "sovereignty" was to yield the "people's" power over their own affairs, shouted the man who wished to win local prominence, power, and office.

Those who did not want to pay taxes and who disliked much government of any kind felt that they could make shift with mere State establishments.⁹⁵⁸ "A thirst for power, and the bantling, I had liked to have said monster for sovereignty, which have taken such fast hold of the States individually, will, when joined by the many whose personal consequence in the control of State politics will in a manner be annihilated, form a strong phalanx against"⁹⁵⁹ the National Constitution, prophesied the leader of the Revolution.

But it was not alone the powerlessness of the Federal Government to keep the National faith, plighted by solemn treaties with foreign Governments; or to uphold the National honor by paying debts made to win American independence, that wrought that bloodless revolution⁹⁶⁰ which produced the Constitution. Nor was it the proud and far-seeing plans of a few great minds whose heart's desire was to make the American People a Nation.

Finance, commerce, and business assembled the historic Philadelphia Convention; although it must be said that statesmanship guided its turbulent councils. The senseless and selfish nagging at trade in which the States indulged, after peace was declared, produced a brood of civil abuses as noisome as the military dangers which State control of troops had brought forth during the Revolution. Madison truly said that "most of our political evils may be traced up to our commercial ones."⁹⁶¹ The States passed tariff laws against one another as well as against foreign nations; and, indeed, as far as commerce was concerned, each State treated the others as foreign nations.⁹⁶² There were retaliations, discriminations, and every manner of trade restrictions and impediments which local ingenuity and selfishness could devise.

The idea of each State was to keep money from going outside its borders into other States and to build up its own business and prosperity at the expense of its neighbors.⁹⁶³ States having no seaports were in a particularly hard case. Madison picturesquely describes their unhappy plight: "New Jersey placed between Phila & N. York, was likened to a cask tapped at both ends; And N. Carolina, between Virga & S. Carolina to a patient bleeding at both Arms."⁹⁶⁴ Merchants and commercial bodies were at their wits' end to carry on business and petitioned for a general power over commerce.⁹⁶⁵

The commercial view, as stated by Madison, was that "the National Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c., &c."

Madison then lays down this extreme Nationalist principle as the central article of his political faith: "Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated. The States will continue to invade the National jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest."⁹⁶⁶

Too much emphasis cannot be put upon the fact that the mercantile and financial interests were the weightiest of all the influences for the Constitution; the debtors and agricultural interests the strongest groups against it. It deserves repetition, for a proper understanding of the craft and force practiced by both sides in the battle over ratification, that those who owed debts were generally against the Constitution and practically all to whom debts were due were for the new Government. "I have little prospect of bringing Banks [a debtor] to terms as the Law of this State now stands," wrote a Virginia agent of a creditor, "but I hope when the New Federal constitution is adopted that the Laws will be put upon a better footing… Three fourths of the people that oppose it [the Constitution] are those that are deeply in debt & do not wish to pay."⁹⁶⁷

London merchants were very anxious for a new order of things. "I hope ere long your Federal Government will be established, and that honest Men will again have the Assendency in your Country, for without such a change it must ever remain a poor place to live in," was the opinion of a business man living in the British Capital.⁹⁶⁸

A few weeks after Virginia ratified the Constitution, Minton Collins reported to his principal about a person named Banks, who, says Collins, "begins to be a little alarmed from the adoption of the Federal Constitution. I hope it will alarm every such R[asca]l. He had run his rig long enough for he boasts of being worth from 150,000£ to 200,000 pounds; this is not bad for a man that six years ago could scarcely raise a suit of clothes to his back."⁹⁶⁹

Marshall was becoming a prosperous lawyer and his best clients were from the mercantile interests. His family relationships were coming to be more and more with the property classes. He had no ambition for a political career, which might have given to his thinking and conclusions a "more popular cast," to use Madison's contemptuous phrase. Thus Marshall's economic and political convictions resulting from experience and reasoning were in harmony with his business connections and social environment.

Undoubtedly he would have taken the same stand had none of these circumstances developed; his constructive mind, his conservative temperament, his stern sense of honor, his abhorrence of disorder and loose government, his army experience, his legislative schooling, his fidelity to and indeed adoration of Washington, would have surely placed him on the side of the Constitution. Still, the professional and social side of his life should not be ignored, if we are to consider fully all the forces which then surrounded him, and which, with ever-growing strength, worked out the ultimate Marshall.

Jefferson, in France, experienced only the foreign results of the sharp and painful predicament which John Marshall was sadly witnessing in America. While not busy with the scholars and society of the French Capital, Jefferson had been engaged in the unhappy official task of staving off our French creditors and quieting, as well as he could, complaints of our trade regulations and other practices which made it hard and hazardous for the French to do business with us.⁹⁷⁰ He found that "the nonpaiment of our debts and the want of energy in our government … discourage a connection with us";⁹⁷¹ and "want of punctuality & a habitual protection of the debtor" prevented him from getting a loan in France to aid the opening of the Potomac.⁹⁷² All this caused even Jefferson to respond to the demand for unifying the American Government as to foreign nations; but he would not go further. "Make the States one as to every thing connected with foreign nations, & several as to everything purely domestic," counseled Jefferson while the Constitutional Convention was quarreling at Philadelphia.⁹⁷³

But he did not think badly of the weakness of the Articles of Confederation which so aroused the disgust, anger, and despair of Washington, Madison, Jay, and other men of their way of thinking, who were on the ground. "With all the imperfections of our present government [Articles of Confederation]," wrote Jefferson in Paris, in 1787, "it is without comparison the best existing or that ever did exist";⁹⁷⁴ and he declared to one of his French friends that "the confederation is a wonderfully perfect instrument."⁹⁷⁵ Jefferson found but three serious defects in the Articles of Confederation: no general rule for admitting States; the apportionment of the State's quota of money upon a land instead of a population basis; and the imperfect power over treaties, import duties, and commerce.⁹⁷⁶

He frankly said: "I am not a friend to a very energetic government"; and he thought that "our governments will remain virtuous for many centuries" – but added with seer-like vision: "as long as … there shall be vacant lands in America."⁹⁷⁷ Jefferson wished the United States "to practice neither commerce nor navigation, but to stand with respect to Europe precisely on the footing of China."⁹⁷⁸ Far from thinking that the low state of our credit was a bad thing for us, he believed that its destruction would work an actual benefit to America. "Good will arise from the destruction of our credit," he asserted in a letter to Stuart written from Paris in 1786. "I see nothing else which can restrain our disposition to luxury, and the loss of those manners which alone can preserve republican government."⁹⁷⁹

We have now seen the state of the country and the condition of the people, their situation and habits, their manner of life and trend of feeling. We have witnessed the change thus wrought in the leading men during this period, so destructive of confidence in the wisdom or virtue of majorities, at least on first impulse and without abundant time for reflection and second thought. Thus we have measured, with some degree of accuracy, the broad and well-marked space that separated the hostile forces which were to meet in what was for the moment a decisive conflict when Virginia's Constitutional Convention should assemble at Richmond.

In one camp the uninformed and credulous, those who owed debts and abhorred government, with a sprinkling among them of eminent, educated, and well-meaning men who were philosophic apostles of theoretical liberty; and in the other camp men of property and lovers of order, the trading and moneyed interests whose first thought was business; the veterans of the Revolution who had learned on the battlefield the need of a strong central Government; and, here and there, a prophetic and constructive mind who sought to build a Nation. John Marshall was one of the latter; and so he promptly took his place by the side of his old general and leader in the camp of the builders.

At last the supreme hour is striking. The Virginians, about to assemble in State Convention, will determine the fate of that unauthorized and revolutionary plan for a National Government,⁹⁸⁰ the National Constitution. The movement for a second general Convention to have another try at framing a Constitution has made distinct progress by the time the Virginia representatives gather at the State Capital.⁹⁸¹ There is widespread, positive, and growing resentment at the proposed new form of government; and if Virginia, the largest and most populous of the States, rejects it, the flames of opposition are certain to break out in every part of the country. As Washington asserts, there is, indeed, "combustible material" everywhere.

Thus it is that the room where Virginia's Convention is about to meet in June, 1788, will become the "bloody angle" in the first great battle for Nationalism. And Marshall will be there, a combatant as he had been at Great Bridge and Brandywine. Not for John Marshall the pallid rôle of the trimmer, but the red-blooded part of the man of conviction.

CHAPTER IX
THE STRUGGLE FOR RATIFICATION

The plot thickens fast. A few short weeks will determine the political fate of America. (Washington.)

On Sunday, June 1, 1788, the dust lay deep in the streets of the little town of Richmond. Multitudes of horses were tethered here and there or stabled as best the Virginia Capital's meager accommodations permitted. Cavalcades of mounted men could be seen from Shockoe Hill, wending their way over the imperfect earthen roads from every direction to the center of interest.⁹⁸² Some of these had come hundreds of miles and arrived in the garb of the frontier, pistol and hanger at belt.⁹⁸³ Patrick Henry, prematurely old at fifty-two, came in a one-horse, uncovered gig; Pendleton, aged, infirm, and a cripple, arrived in a phaeton.⁹⁸⁴

As we have seen, it was very hard for members of Virginia's Legislature to get to the seat of the State Government even from counties not far distant; and a rainy season, or even one week's downpour during the latter part of May, would have kept large numbers of the members of the Virginia Convention from reaching their destination in time and perhaps have decided the impending struggle⁹⁸⁵ before it began. The year's great social and sporting event added to the throng and colored the dark background of political anxiety and apprehension with a faint tinge of gayety.⁹⁸⁶

Although seven months had elapsed since the Federal Convention had finished its work, there was, nevertheless, practically no accurate knowledge among the people of the various parts of the "New Plan" of government. Even some members of the Virginia State Convention had never seen a copy of the Constitution until they arrived in Richmond to deliberate upon it and decide its fate.⁹⁸⁷ Some of the most inquiring men of this historic body had not read a serious or convincing argument for it or against it.⁹⁸⁸ "The greater part of the members of the [Virginia] convention will go to the meeting without information on the subject," wrote Nicholas to Madison immediately after the election of delegates.⁹⁸⁹

One general idea, however, had percolated through the distances and difficulties of communication to the uninformed minds of the people – the idea that the new Constitution would form a strong, consolidated National Government, superior to and dominant over the State Governments; a National Sovereignty overawing State Sovereignties, dangerous to if not entirely destructive of the latter; a general and powerful authority beyond the people's reach, which would enforce contracts, collect debts, impose taxes; above all, a bayonet-enforced rule from a distant point, that would imperil and perhaps abolish "liberty."⁹⁹⁰

So a decided majority of the people of Virginia were against the proposed fundamental law;⁹⁹¹ for, as in other parts of the country, few of Virginia's masses wanted anything stronger than the weak and ineffective Government of the State and as little even of that as possible. Some were "opposed to any system, was it even sent from heaven, which tends to confirm the union of the States."⁹⁹² Madison's father reported the Baptists to be "generally opposed to it"; and the planters who went to Richmond to sell their tobacco had returned foes of the "new plan" and had spread the uprising against it among others "who are no better acquainted with the necessity of adopting it than they themselves."⁹⁹³ At first the friends of the Constitution deceived themselves into thinking that the work of the Philadelphia Convention met with approval in Virginia; but they soon found that "the tide next took a sudden and strong turn in the opposite direction."⁹⁹⁴ Henry wrote to Lamb that "Four-fifths of our inhabitants are opposed to the new scheme of government"; and he added that south of the James River "I am confident nine-tenths are opposed to it."⁹⁹⁵

That keen and ever-watchful merchant, Minton Collins, thus reported to the head of his commercial house in Philadelphia: "The New Federal Constitution will meet with much opposition in this State [Virginia] for many pretended patriots has taken a great deal of pains to poison the minds of the people against it… There are two Classes here who oppose it, the one is those who have power & are unwilling to part with an atom of it, & the others are the people who owe a great deal of money, and are very unwilling to pay, as they are afraid this Constitution will make them Honest Men in spite of their teeth."⁹⁹⁶

And now the hostile forces are to meet in final and decisive conflict. Now, at last, the new Constitution is to be really debated; and debated openly before the people and the world. For the first time, too, it is to be opposed in argument by men of the highest order in ability, character, and standing – men who cannot be hurried, or bullied, or shaken, or bought. The debates in the Virginia Convention of 1788 are the only masterful discussions on both sides of the controversy that ever took place.

While the defense of the Constitution had been very able in Pennsylvania and Massachusetts (and later in New York was to be most brilliant), the attack upon it in the Virginia Convention was nowhere equaled or approached in power, learning, and dignity. Extravagant as the assertion appears, it nevertheless is true that the Virginia contest was the only real debate over the whole Constitution. It far surpassed, especially in presenting the reasons against the Constitution, the discussion in the Federal Convention itself, in weight of argument and attractiveness of presentation, as well as in the ability and distinction of the debaters.

The general Federal Convention that framed the Constitution at Philadelphia was a secret body; and the greatest pains were taken that no part of its proceedings should get to the public until the Constitution itself was reported to Congress. The Journals were confided to the care of Washington and were not made public until many years after our present Government was established. The framers of the Constitution ignored the purposes for which they were delegated; they acted without any authority whatever; and the document, which the warring factions finally evolved from their quarrels and dissensions, was revolutionary.⁹⁹⁷ This capital fact requires iteration, for it is essential to an understanding of the desperate struggle to secure the ratification of that then unpopular instrument.

"Not one legislature in the United States had the most distant idea when they first appointed members for a [Federal] convention, entirely commercial … that they would without any warrant from their constituents, presume on so bold and daring a stride," truthfully writes the excitable Gerry of Massachusetts in his bombastic denunciation of "the fraudulent usurpation at Philadelphia."⁹⁹⁸ The more reliable Melancton Smith of New York testifies that "previous to the meeting of the Convention the subject of a new form of government had been little thought of and scarcely written upon at all… The idea of a government similar to" the Constitution "never entered the minds of the legislatures who appointed the Convention and of but very few of the members who composed it, until they had assembled and heard it proposed in that body."⁹⁹⁹

"Had the idea of a total change [from the Confederation] been started," asserts the trustworthy Richard Henry Lee of Virginia, "probably no state would have appointed members to the Convention… Probably not one man in ten thousand in the United States … had an idea that the old ship [Confederation] was to be destroyed. Pennsylvania appointed principally those men who are esteemed aristocratical… Other States … chose men principally connected with commerce and the judicial department." Even so, says Lee, "the non-attendance of eight or nine men" made the Constitution possible. "We must recollect, how disproportionately the democratic and aristocratic parts of the community were represented" in this body.¹⁰⁰⁰

This "child of fortune,"¹⁰⁰¹ as Washington called the Constitution, had been ratified with haste and little or no discussion by Delaware, New Jersey, Connecticut, and Georgia. The principal men in the first three Commonwealths felt that the Constitution gave those States large commercial advantages and even greater political consequence;¹⁰⁰² and Georgia, with so small a population as to be almost negligible, felt the need of some strong Government to defend her settlers against the Indians. It is doubtful whether many of the people of these four States had read the Constitution or had heard much about it, except that, in a general way, they were to be better off under the new than under the old arrangement. Their ratification carried no weight other than to make up four of the nine States necessary to set the new system in motion.

In other States its friends had whipped up all possible speed. Not a week had passed after the Federal Convention had laid the proposed Constitution before Congress when a resolution was introduced in the Legislature of Pennsylvania for the election, within five weeks,¹⁰⁰³ of delegates to a State Convention to ratify the "New Plan." When its opponents, failing in every other device to delay or defeat it, refused to attend the sessions, thus breaking a quorum, a band of Constitutionalists "broke into their lodgings, seized them, dragged them though the streets to the State House and thrust them into the Assembly room with clothes torn and faces white with rage." And there the objecting members were forcibly kept until the vote was taken. Thus was the quorum made and the majority of the Legislature enabled to "pass" the ordinance for calling the Pennsylvania State Convention to ratify the National Constitution.¹⁰⁰⁴ And this action was taken before the Legislature had even received from Congress a copy of that document.

The enemies in Pennsylvania of the proposed National Government were very bitter. They said that the Legislature had been under the yoke of Philadelphia – a charge which, indeed, appears to be true. Loud were the protests of the minority against the feverish haste. When the members of the Pennsylvania Convention, thus called, had been chosen and had finished their work, the Anti-Constitutionalists asserted that no fair election had really taken place because it "was held at so early a period and want of information was so great" that the people did not know that such an election was to be held; and they proved this to their own satisfaction by showing that, although seventy thousand Pennsylvanians were entitled to vote, only thirteen thousand of them really had voted and that the forty-six members of the Pennsylvania Convention who ratified the Constitution had been chosen by only sixty-eight hundred voters. Thus, they pointed out, when the State Convention was over, that the Federal Constitution had been ratified in Pennsylvania by men who represented less than one tenth of the voting population of the State.¹⁰⁰⁵

Indeed, a supporter of the Constitution admitted that only a small fraction of the people did vote for members of the Pennsylvania State Convention; but he excused this on the ground that Pennsylvanians seldom voted in great numbers except in contested elections; and he pointed out that in the election of the Convention which framed the State's Constitution itself, only about six thousand had exercised their right of suffrage and that only a little more than fifteen hundred votes had been cast in the whole Commonwealth to elect Pennsylvania's first Legislature.¹⁰⁰⁶

The enemies of the proposed plan for a National Government took the ground that it was being rushed through by the "aristocrats"; and the "Independent Gazetteer" published "The humble address of the low born of the United States of America, to their fellow slaves scattered throughout the world," which sarcastically pledged that "we, the low born, that is, all the people of the United States, except 600 or thereabouts, well born," would "allow and admit the said 600 well born immediately to establish and confirm this most noble, most excellent, and truly divine constitution."¹⁰⁰⁷

James Wilson, they said, had been all but mobbed by the patriots during the Revolution; he never had been for the people, but always "strongly tainted with the spirit of high aristocracy."¹⁰⁰⁸ Yet such a man, they declared, was the ablest and best person the Constitutionalists could secure to defend "that political monster, the proposed Constitution"; "a monster" which had emerged from "the thick veil of secrecy."¹⁰⁰⁹

When the Pennsylvania State Convention had assembled, the opponents of the Constitution at once charged that the whole business was being speeded by a "system of precipitancy."¹⁰¹⁰ They rang the changes on the secret gestation and birth of the Nation's proposed fundamental law, which, said Mr. Whitehill, "originates in mystery and must terminate in despotism," and, in the end, surely would annihilate the States.¹⁰¹¹ Hardly a day passed that the minority did not protest against the forcing tactics of the majority.¹⁰¹² While much ability was displayed on both sides, yet the debate lacked dignity, courtesy, judgment, and even information. So scholarly a man as Wilson said that "Virginia has no bill of rights";¹⁰¹³ and Chief Justice McKean, supported by Wilson, actually declared that none but English-speaking peoples ever had known trial by jury.¹⁰¹⁴

"Lack of veracity," "indecent," "trifling," "contempt for arguments and person," were a few of the more moderate, polite, and soothing epithets that filled Pennsylvania's Convention hall throughout this so-called debate. More than once the members almost came to blows.¹⁰¹⁵ The galleries, filled with city people, were hot for the Constitution and heartened its defenders with cheers. "This is not the voice of the people of Pennsylvania," shouted Smilie, denouncing the partisan spectators. The enemies of the Constitution would not be "intimidated," he dramatically exclaimed, "were the galleries filled with bayonets."¹⁰¹⁶ The sarcastic McKean observed in reply that Smilie seemed "mighty angry, merely because somebody was pleased."¹⁰¹⁷

Persons not members of the Convention managed to get on the floor and laughed at the arguments of those who were against the Constitution. Findley was outraged at this "want of sense of decency and order."¹⁰¹⁸ Justice McKean treated the minority with contempt and their arguments with derision. "If the sky falls, we shall catch larks; if the rivers run dry, we shall catch eels," was all, said this conciliatory advocate of the Constitution, that its enemies' arguments amounted to; they made nothing more than a sound "like the working of small beer."¹⁰¹⁹

The language, manners, and methods of the supporters of the Constitution in the Pennsylvania Convention were resented outside the hall. "If anything could induce me to oppose the New Constitution," wrote a citizen signing himself "Federalist," "it would be the indecent, supercilious carriage of its advocates towards its opponents."¹⁰²⁰

While the Pennsylvania State Convention was sitting, the Philadelphia papers were full of attacks and counter-attacks by the partisans of either side, some of them moderate and reasonable, but most of them irritating, inflammatory, and absurd. A well-written petition of citizens was sent to the Convention begging it to adjourn until April or May, so that the people might have time to inform themselves on the subject: "The people of Pennsylvania have not yet had sufficient time and opportunity afforded them for this purpose. The great bulk of the people, from the want of leisure from other avocations; their remoteness from information, their scattered situation, and the consequent difficulty of conferring with each other" did not understand the Constitution, declared this memorial.

"The unaccountable zeal and precipitation used to hurry the people into premature decision" had excited and alarmed the masses, "and the election of delegates was rushed into before the greater part of the people … knew what part to take in it." So ran the cleverly drawn indictment of the methods of those who were striving for ratification in Pennsylvania.¹⁰²¹ In the State Convention, the foes of the Constitution scathingly denounced to the very last the jamming-through conduct of its friends; and just before the final vote, Smilie dared them to adjourn that the sense of the people might be taken.¹⁰²²

Even such of the people as could be reached by the newspapers were not permitted to be enlightened by the Convention "debates"; for reports of them were suppressed.¹⁰²³ Only the speeches of James Wilson and Chief Justice McKean, both ardent advocates of the Constitution, were allowed to be published.¹⁰²⁴

But although outnumbered two to one, cuffed and buffeted without mercy in debate, scoffed at and jeered at by the people of the Quaker City, the minority was stiff-necked and defiant. Their heads were "bloody but unbowed." Three days after the vote for ratification, forty-six "ayes" to twenty-three "nays," had been taken, the minority issued an address to their constituents.¹⁰²⁵ It relates the causes which led to the Federal Convention, describes its members, sets forth its usurpation of power, details the efforts to get popular support for the Constitution even "whilst the gilded chains were forging in the secret conclave."

The address recounts the violence by which the State Convention was called, "not many hours" after the "New Plan" had "issued forth from the womb of suspicious secrecy"; and reaffirms the people's ignorance of the Constitution, the trifling vote, the indecorous, hasty, "insulting" debate. It gives the amendments asked for by the minority, and finally presents most if not all the arguments which before had been or since have been advanced against the Constitution, and especially the National principle which pervades it.

The powers given Congress would produce "one consolidated government, which, from the nature of things, will be an iron handed despotism"; the State Governments would be annihilated; the general welfare clause would justify anything which "the will and pleasure of congress" dictated; that National body, "with complete and unlimited power over the purse and the sword," could¹⁰²⁶ by taxation "command the whole or any part of the property of the people" – imposts, land taxes, poll taxes, excises, duties – every kind of tax on every possible species of property and written instrument could be laid by the "monster" of National power. By the Judiciary provided in the Constitution "the rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays … and the poor man being plunged in the bottomless pit of legal discussion" could not get justice.¹⁰²⁷

Two coördinate "sovereignties," State and National, "would be contrary to the nature of things"; the Constitution without a bill of rights "would of itself necessarily produce a despotism"; a standing army might be used to collect the most burdensome taxes and with it "an ambitious man … may step up into the throne and seize upon absolute power"¹⁰²⁸– such are the broad outlines of the document with which the undismayed enemies of the Constitution began their campaign against it among the people of Pennsylvania after the Convention had ratified it.

The wrath of the Pennsylvania foes of the Constitution fed and grew upon its own extravagance. The friends of the "New Plan" tried to hold a meeting in Carlisle to rejoice over its ratification; but the crowd broke up their meeting, wrecked their cannon, and burned the Constitution in the very bonfire which the Constitutionalists had prepared to celebrate its victory. Blows were struck and violence done.¹⁰²⁹ For almost a year, an Anti-Constitutionalist paper in Philadelphia kept up the bombardment of the Constitution and its advocates, its gunner being a writer signing himself "Centinel."¹⁰³⁰ His ammunition was a mixture of argument, statement, charge, and abuse, wrapped up in cartridge paper of blistering rhetoric. The Constitution was, wrote "Centinel," a "spurious brat"; "the evil genius of darkness presided at its birth" and "it came forth under the veil of mystery."¹⁰³¹

Should the small fraction of the people who had voted for the members of the Pennsylvania State Convention bind the overwhelming majority who had not voted, asked "Centinel." No, indeed! The people, wrote he with pen of gall, had nothing but contempt for the "solemn mummery" that had been acted in their name.¹⁰³² As to the citizens of Philadelphia, everybody understood, asserted "Centinel," that the "spirit of independency" was dead within their breasts; Philadelphia merchants, as was well known, were mere vassals to a commercial "colossus" (Robert Morris) who held the city in "thraldom."¹⁰³³

"Mankind in the darkest ages, have never been so insulted," cried "Centinel," as the men of Pennsylvania had been by this "flagrant … audacious … conspiracy [the Constitution] against the liberties of a free people."¹⁰³⁴ The whole thing, he declared, was a dastardly plot. The conspirators had disarmed the militia, kept out of the mails such newspapers as had dared to voice the "people's rights";¹⁰³⁵ and "all intercourse between the patriots of America is as far as possible cut off; whilst on the other hand the conspirators have the most exact information, a common concert is everywhere evident; they move in unison."¹⁰³⁶

The Constitutionalists were not content with their vile work in thrusting upon Pennsylvania "the empire of delusion," charged "Centinel,"¹⁰³⁷ but their agents were off for Virginia to do the like there.¹⁰³⁸ The whole world knew, said he, that the Constitutionalists had rushed the Constitution through in Pennsylvania;¹⁰³⁹ and that the "immaculate convention [that framed the Constitution] … contained a number of the principal public defaulters,"¹⁰⁴⁰ chief of whom was Robert Morris, who, though a bankrupt in the beginning of the Revolution, had, by "peculation and embezzlement of the public property," accumulated "the immense wealth he has dazzled the world with since."¹⁰⁴¹

If only the address of Pennsylvania's heroic minority, "Centinel" lamented, had reached Boston in time, it would "have enabled patriotism to triumph" there; but, of course, the "high born" Constitutionalist managers of post-offices kept it back.¹⁰⁴² Was not the scandal so foul, asked "Centinel," that, on the petition of Philadelphia printers, Pennsylvania's Legislature appealed to Congress against the suppression of the mails?¹⁰⁴³ Of course Philadelphia was for "this system of tyranny"; but three fourths of the people in the eastern counties and nineteen twentieths of those in the middle, northern, and western counties were against it.¹⁰⁴⁴

The grape and canister which its enemies poured upon the Constitution and its friends in Pennsylvania brought an answering fire. The attacks, said the Constitutionalists, had been written by "hireling writers" and "sowers of sedition"; their slanders showed "what falsehoods disappointed ambition is capable of using to impose upon the public." According to the Constitutionalists, their opponents were "incendiaries" with "infamous designs."¹⁰⁴⁵ "If every lie was to be punished by clipping, as in the case of other forgeries, not an ear would be left amongst the whole party," wrote a Constitutionalist of the conduct of the opposition.¹⁰⁴⁶

CHAPTER X
IN THE GREAT CONVENTION

There is no alternative between the adoption of it [the Constitution] and anarchy. (Washington.)

I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. (Henry.)

More, much more, went forward in the Virginia struggle than appeared upon the surface. Noble as was the epochal debate in Virginia's Constitutional Convention, it was not so influential on votes of the members as were other methods¹¹¹¹ employed by both sides. Very practical politicians, indeed, were these contending moulders of destiny.

Having in mind the Pennsylvania storm; with the picture before them of the delicate and skillful piloting by which alone the Constitution had escaped the rocks in the tempestuous Massachusetts seas; with the hurricane gathering in New York and its low thunders heard even from States that had ratified – the Virginia Constitutionalists took no chances, neglected no precaution. Throughout the country the Constitutionalists were now acting with disciplined dispatch.

Intelligence of the New Hampshire Convention, of their success in which the Constitutionalists finally had made sure, was arranged to be carried by swift riders and relays of horses across country to Hamilton in New York; and "any expense which you may incur will be cheerfully repaid," King assured Langdon.¹¹¹² As to Virginia, Hamilton wrote Madison to send news of "any decisive question … if favorable … by an express … with pointed orders to make all possible diligence, by changing horses etc."; assuring Madison, as King did Langdon, that "all expense shall be thankfully and liberally paid."¹¹¹³

The Constitutionalists, great and small, in other States were watching Virginia's Convention through the glasses of an infinite apprehension. "I fear that overwhelming torrent, Patrick Henry," General Knox confided to King.¹¹¹⁴ Even before Massachusetts had ratified, one Jeremiah Hill thought that "the fate of this Constitution and the political Salvation of the united States depend cheifly on the part that Virginia and this State [Massachusetts] take in the Matter."¹¹¹⁵ Hamilton's lieutenant, King, while in Boston helping the Constitutionalists there, wrote to Madison: "You can with difficulty conceive the real anxiety experienced in Massachusetts concerning your decision."¹¹¹⁶ "Our chance of success depends on you," was Hamilton's own despairing appeal to the then leader of the Southern Constitutionalists. "If you do well there is a gleam of hope; but certainly I think not otherwise."¹¹¹⁷ The worried New York Constitutionalist commander was sure that Virginia would settle the fate of the proposed National Government. "God grant that Virginia may accede. The example will have a vast influence."¹¹¹⁸

Virginia's importance justified the anxiety concerning her action. Not only was the Old Dominion preëminent in the part she had taken in the Revolution, and in the distinction of her sons like Henry, Jefferson, and Washington, whose names were better known in other States than those of many of their own most prominent men; but she also was the most important State in the Confederation in population and, at that time, in resources. "Her population," says Grigsby, "was over three fourths of all that of New England;… not far from double that of Pennsylvania;… or from three times that of New York … over three fourths of all the population of the Southern States;… and more than a fifth of the population of the whole Union."¹¹¹⁹

The Virginia Constitutionalists had chosen their candidates for the State Convention with painstaking care. Personal popularity, family influence, public reputation, business and financial power, and everything which might contribute to their strength with the people, had been delicately weighed. The people simply would not vote against such men as Pendleton, Wythe, and Carrington;¹¹²⁰ and these and others like them accordingly were selected by the Constitutionalists as candidates in places where the people, otherwise, would have chosen antagonists to the Constitution.

More than one fourth of the Virginia Convention of one hundred and seventy members had been soldiers in the Revolutionary War; and nearly all of them followed Washington in his desire for a strong National Government. Practically all of Virginia's officers were members of the Cincinnati; and these were a compact band of stern supporters of the "New Plan."¹¹²¹ Some of the members had been Tories, and these were stingingly lashed in debate by Mason; but they were strong in social position, wealth, and family connections, and all of them were for the Constitution.¹¹²²

No practical detail of election day had been overlooked by the Constitutionalists. Colonel William Moore wrote to Madison, before the election came off: "You know the disadvantage of being absent at elections… I must therefore entreat and conjure you – nay, command you, if it were in my power – to be here."¹¹²³ The Constitutionalists slipped in members wherever possible and by any device.

Particularly in Henrico County, where Richmond was situated, had conditions been sadly confused. Edmund Randolph, then Governor of the State, who next to Washington was Virginia's most conspicuous delegate to the Federal Convention, had refused to sign the Constitution and was, therefore, popularly supposed to be against it. October 17, 1787, he wrote a letter to the Speaker of the House of Delegates explaining his reasons for dissent. He approved the main features of the proposed plan for a National Government but declared that it had fatal defects, should be amended before ratification, a new Federal Convention called to pass upon the amendments of the various States, and, thereafter, the Constitution as amended again submitted for ratification to State Conventions.¹¹²⁴ Randolph, however, did not send this communication to the Speaker "lest in the diversity of opinion I should excite a contest unfavorable to that harmony with which I trust that great subject will be discussed."¹¹²⁵ But it was privately printed in Richmond and Randolph sent a copy to Washington. On January 3, 1788, the letter was published in the Virginia Gazette together with other correspondence. In an additional paragraph, which does not appear in Randolph's letter as reproduced in Elliott, he said that he would "regulate himself by the spirit of America" and that he would do his best to amend the Constitution prior to ratification, but if he could not succeed he would accept the "New Plan" as it stood.¹¹²⁶ But he had declared to Richard Henry Lee that "either a monarchy or aristocracy will be generated" by it.¹¹²⁷

Thus Randolph to all appearances occupied middle ground. But, publicly, he was in favor of making strenuous efforts to amend the Constitution as a condition of ratification, and of calling a second Federal Convention; and these were the means by which the Anti-Constitutionalists designed to accomplish the defeat of the "New Plan." The opponents of the proposed National Government worked hard with Randolph to strengthen his resolution and he gave them little cause to doubt their success.¹¹²⁸

But the Constitutionalists were also busy with the Governor and with greater effect. Washington wrote an adroit and persuasive letter designed to win him entirely over to a whole-hearted and unqualified advocacy of the Constitution. The question was, said Washington, the acceptance of the Constitution or "a dissolution of the Union."¹¹²⁹ Madison, in a subtle mingling of flattery, argument, and insinuation, skillfully besought his "dear friend" Randolph to come out for the Constitution fully and without reserve. If only Randolph had stood for the Constitution, wrote Madison, "it would have given it a decided and unalterable preponderancy," and Henry would have been "baffled."

The New England opposition, Madison assured Randolph, was from "that part of the people who have a repugnance in general to good government … a part of whom are known to aim at confusion and are suspected of wishing a reversal of the Revolution… Nothing can be further from your [Randolph's] views than the principles of the different sets of men who have carried on their opposition under the respectability of your name."¹¹³⁰

Randolph finally abandoned all opposition and resolved to support the Constitution even to the point of resisting the very plan he had himself proposed and insisted upon; but nobody, with the possible exception of Washington, was informed of this Constitutionalist master-stroke until the Convention met;¹¹³¹ and, if Washington knew, he kept the secret. Thus, although the Constitutionalists were not yet sure of Randolph, they put up no candidate against him in Henrico County, where the people were very much opposed to the Constitution. To have done so would have been useless in any event; for Randolph could have been elected almost unanimously if his hostility to the proposed Government had been more vigorous, so decided were the people's dislike and distrust of it, and so great, as yet, the Governor's popularity. He wrote Madison a day or two before the election that nothing but his personal popularity "could send me; my politicks not being sufficiently strenuous against the Constitution."¹¹³² The people chose their beloved young Governor, never imagining that he would appear as the leading champion of the Constitution on the Convention floor and actually oppose amending it before ratification.¹¹³³

But the people were not in the dark when they voted for the only candidate the Constitutionalists openly brought out in Henrico County. John Marshall was for the proposed National Government, outright and aboveboard. He was vastly concerned. We find him figuring out the result of the election in northern Virginia and concluding "that the question will be very nice."¹¹³⁴ Marshall had been made the Constitutionalist candidate solely because of his personal popularity. As it was, even the people's confidence in him barely had saved Marshall.

"Marshall is in danger," wrote Randolph; "but F. [Dr. Foushee, the Anti-Constitutionalist candidate] is not popular enough on other scores to be elected, altho' he is perfectly a Henryite."¹¹³⁵ Marshall admitted that the people who elected Randolph and himself were against the Constitution; and declared that he owed his own election to his individual strength with the people.¹¹³⁶ Thus two strong champions of the Constitution had been secured from an Anti-Constitutionalist constituency; and these were only examples of other cases.

The Anti-Constitutionalists, too, straining every nerve to elect their men, resorted to all possible devices to arouse the suspicions, distrust, and fears of the people. "The opposition to it [the Constitution] … is addressed more to the passions than to the reason," declared Washington.¹¹³⁷

Henry was feverishly active. He wrote flaming letters to Kentucky that the Mississippi would be lost if the new plan of government were adopted.¹¹³⁸ He told the people that a religious establishment would be set up.¹¹³⁹ The Reverend John Blair Smith, President of Hampden Sidney College, declared that Henry "has descended to lower artifices and management … than I thought him capable of."¹¹⁴⁰ Writing to Hamilton of the activities of the opposition, Washington asserted that "their assiduity stands unrivalled";¹¹⁴¹ and he informed Trumbull that "the opponents of the Constitution are indefatigable."¹¹⁴²

"Every art that could inflame the passions or touch the interests of men have been essayed; – the ignorant have been told that should the proposed government obtain, their lands would be taken from them and their property disposed of; – and all ranks are informed that the prohibition of the Navigation of the Mississippi (their favorite object) will be a certain consequence of the adoption of the Constitution."¹¹⁴³

Plausible and restrained Richard Henry Lee warned the people that "by means of taxes, the government may command the whole or any part of the subjects' property";¹¹⁴⁴ and that the Constitution "promised a large field of employment to military gentlemen, and gentlemen of the law; and in case the government shall be executed without convulsions, it will afford security to creditors, to the clergy, salary-men and others depending on money payments."¹¹⁴⁵

Nor did the efforts of the Virginia opponents of a National establishment stop there. They spread the poison of personal slander also. "They have attempted to vilify & debase the characters who formed" the Constitution, complained Washington.¹¹⁴⁶ These cunning expedients on one side and desperate artifices on the other were continued during the sitting of the Virginia Convention by all the craft and guile of practical politics.

After the election, Madison reported to Jefferson in Paris that the Northern Neck and the Valley had elected members friendly to the Constitution, the counties south of the James unfriendly members, the "intermediate district" a mixed membership, with Kentucky divided. In this report, Madison counts Marshall fifth in importance of all Constitutionalists elected, and puts only Pendleton, Wythe, Blair, and Innes ahead of him.¹¹⁴⁷

When the Convention was called to order, it made up a striking and remarkable body. Judges and soldiers, lawyers and doctors, preachers, planters, merchants, and Indian fighters, were there. Scarcely a field fought over during the long, red years of the Revolution but had its representative on that historic floor. Statesmen and jurists of three generations were members.¹¹⁴⁸

From the first the Constitutionalists displayed better tactics and discipline than their opponents, just as they had shown greater skill and astuteness in selecting candidates for election. They arranged everything beforehand and carried their plans out with precision. For the important position of President of the Convention, they agreed on the venerable Chancellor, Edmund Pendleton, who was able, judicial, and universally respected. He was nominated by his associate, Judge Paul Carrington, and unanimously elected.¹¹⁴⁹

In the same way, Wythe, who was learned, trusted, and beloved, and who had been the teacher of many members of the Convention, was made Chairman of the Committee of the Whole. The Anti-Constitutionalists did not dare to oppose either Pendleton or Wythe for these strategic places. They had made the mistake of not agreeing among themselves on strong and influential candidates for these offices and of nominating them before the Constitutionalists acted. For the first time in Virginia's history, a shorthand reporter, David Robertson, appeared to take down a stenographic report of the debates; and this innovation was bitterly resented and resisted by the opposition¹¹⁵⁰ as a Constitutionalist maneuver.¹¹⁵¹ Marshall was appointed a member of the committee¹¹⁵² which examined the returns of the elections of members and also heard several contested election cases.¹¹⁵³

At the beginning the Anti-Constitutionalists did not decide upon a plan of action – did not carefully weigh their course of procedure. No sooner had rules been adopted, and the Constitution and official documents relating to it laid before the Convention, than their second tactical mistake was made; and made by one of their very ablest and most accomplished leaders. When George Mason arose, everybody knew that the foes of the Constitution were about to develop the first move in their order of battle. Spectators and members were breathless with suspense. Mason was the author of Virginia's Constitution and Bill of Rights and one of the most honorable, able, and esteemed members of the Legislature.

He had been a delegate to the Federal Convention and, with Randolph, had refused to sign the Constitution. Sixty-two years old, his snow-white hair contrasting with his blazing dark eyes, his commanding stature clad in black silk, his full, clear voice deliberate and controlled, George Mason was an impressive figure as he stood forth to strike the first blow at the new ordinance of Nationality.¹¹⁵⁴ On so important a subject, he did not think any rules should prevent "the fullest and clearest investigation." God's curse would be small compared with "what will justly fall upon us, if from any sinister views we obstruct the fullest inquiry." The Constitution, declared Mason, should be debated, "clause by clause," before any question was put.¹¹⁵⁵

The Constitutionalists, keen-eyed for any strategic blunder of their adversaries, took instant advantage of Mason's bad generalship. Madison suavely agreed with Mason,¹¹⁵⁶ and it was unanimously resolved that the Constitution should be "discussed clause by clause through all its parts,"¹¹⁵⁷ before any question should be put as to the instrument itself or any part of it. Thus the opposition presented to the Constitutionalists the very method the latter wished for, and had themselves planned to secure, on their own initiative.¹¹⁵⁸ The strength of the foes of the proposed National Government was in attacking it as a whole; their weakness, in discussing its specific provisions. The danger of the Constitutionalists lay in a general debate on the large theory and results of the Constitution; their safety, in presenting in detail the merits of its separate parts.

While the fight over the Constitution was partly an economic class struggle, it was in another and a larger phase a battle between those who thought nationally and those who thought provincially. In hostile array were two central ideas: one, of a strong National Government acting directly on men; the other, of a weak confederated league merely suggesting action to States. It was not only an economic contest, but also, and even more, a conflict by those to whom "liberty" meant unrestrained freedom of action and speech, against those to whom such "liberty" meant tumult and social chaos.

The mouths of the former were filled with those dread and sounding words "despotism" and "arbitrary power"; the latter loudly denounced "enemies of order" and "foes of government." The one wanted no bits in the mouth of democracy, or, at most, soft ones with loose reins and lax hand; the other wished a stout curb, stiff rein, and strong arm. The whole controversy, on its popular side, resounded with misty yet stirring language about "liberty," "aristocracy," "tyranny," "anarchy," "licentiousness"; and yet "debtor," "creditor," "property and taxes," "payment and repudiation," were heard among the more picturesque and thrilling terms. In this fundamental struggle of antagonistic theories, the practical advantage for the hour was overwhelmingly with those who resisted the Constitution.

They had on their side the fears of the people, who, as has appeared, looked on all government with suspicion, on any vital government with hostility, and on a great central Government as some distant and monstrous thing, too far away to be within their reach, too powerful to be resisted, too high and exalted for the good of the common man, too dangerous to be tried. It was, to the masses, something new, vague, and awful; something to oppress the poor, the weak, the debtor, the settler; something to strengthen and enrich the already strong and opulent, the merchant, the creditor, the financial interests.

True, the people had suffered by the loose arrangement under which they now lived; but, after all, had not they and their "liberties" survived? And surely they would suffer even more, they felt, under this stronger power; but would they and their "liberties" survive its "oppression"? They thought not. And did not many of the ablest, purest, and most trusted public characters in the Old Dominion think the same? Here was ammunition and to spare for Patrick Henry and George Mason, Tyler and Grayson, Bland and Harrison – ammunition and to spare, with their guns planted on the heights, if they could center their fire on the Constitution as a single proposition.

But they had been sleeping and now awoke to find their position surrendered, and themselves compelled, if Mason's resolutions were strictly followed, to make the assault in piecemeal on detached parts of the "New Plan," many of which, taken by themselves, could not be successfully combated. Although they tried to recover their lost ground and did regain much of it, yet the Anti-Constitutionalists were hampered throughout the debate by this initial error in parliamentary strategy.¹¹⁵⁹

And now the Constitutionalists were eager to push the fighting. The soldierly Lee was all for haste. The Anti-Constitutionalists held back. Mason protested "against hurrying them precipitately." Harrison said "that many of the members had not yet arrived."¹¹⁶⁰ On the third day, the Convention went into committee of the whole, with the astute and venerable Wythe in the chair. Hardly had this brisk, erect little figure – clad in single-breasted coat and vest, standing collar and white cravat, bald, except on the back of the head, from which unqueued and unribboned gray hair fell and curled up from the neck¹¹⁶¹– taken the gavel before Patrick Henry was on his feet.

Henry moved for the reading of the acts by authority of which the Federal Convention at Philadelphia had met,¹¹⁶² for they would show the work of that Convention to be illegal and the Constitution the revolutionary creature of usurped power. If Henry could fix on the advocates of stronger law and sterner order the brand of lawlessness and disorder in framing the very plan they now were championing, much of the mistake of yesterday might be retrieved.

But it was too late. Helped from his seat and leaning on his crutches, Pendleton was recognized by Wythe before Henry could get the eye of the chair to speak upon his motion; and the veteran jurist crushed Henry's purpose before the great orator could make it plain. "We are not to consider," said Pendleton, "whether the Federal Convention exceeded their powers." That question "ought not to influence our deliberations." Even if the framers of the Constitution had acted without authority, Virginia's Legislature afterwards had referred it to the people who had elected the present Convention to pass upon it.¹¹⁶³ Pendleton's brief speech was decisive;¹¹⁶⁴ Henry withdrew his motion; the preamble and the first two sections of the first article of the Constitution were laid before the committee and the destiny-determining debate began.

The Constitutionalists, who throughout the contest never made a mistake in the men they selected to debate or the time when they should speak, had chosen skillfully the parliamentary artillerist to fire their opening gun. They did not wait for the enemy's attack, but discharged the first shot themselves. Quickly there arose a broad, squat, ungainly man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with a nose like the beak of an eagle, and a voice clear and emotionless.¹¹⁶⁵ George Nicholas had been a brave, brilliant soldier and was one of the ablest and best-equipped lawyers in the State. He was utterly fearless, whether in battle on the field or in debate on the floor. His family and connections were powerful. In argument and reasoning he was the equal if not the superior of Madison himself; and his grim personality made the meek one of Madison seem tender in comparison. Nothing could disconcert him, nothing daunt his cold courage. He probably was the only man in the Convention whom Henry feared.¹¹⁶⁶

Nicholas was glad, he said, that the Convention was to act with the "fullest deliberation." First he thrust at the method of the opposition to influence members by efforts outside the Convention itself; and went on with a clear, logical, and informed exposition of the sections then under consideration. He ended by saying "that he was willing to trust his own happiness, and that of his posterity, to the operation of that system."¹¹⁶⁷

The Constitution's enemies, thus far out-pointed by its perfectly trained and harmonious supporters, could delay no longer. Up rose the idol and champion of the people. Although only fifty-two years old, he had changed greatly in appearance since the days of his earlier triumphs. The erect form was now stooped; spectacles now covered the flashing eyes and the reddish-brown hair was replaced by a wig, which, in the excitement of speech, he frequently pushed this way and that. But the wizard brain still held its cunning, the magic tongue which, twenty-three years ago had trumpeted Independence, still wrought its spell.¹¹⁶⁸ Patrick Henry began his last great fight.

What, asked Henry, were the reasons for this change of government? A year ago the public mind was "at perfect repose"; now it was "uneasy and disquieted." "A wrong step now … and our republic may be lost." It was a great consolidated Government that the Constitutionalists proposed, solemnly asserted Henry. What right, he asked, had the framers of the Constitution to say, "We, the people, instead of We, the states"? He demanded the cause of that fundamental change. "Even from that illustrious man [Washington] who saved us by his valor, I would have a reason for his conduct." The Constitution-makers had no authority except to amend the old system under which the people were getting along very well. Why had they done what they had no power to do?¹¹⁶⁹

Thus Henry put the Constitutionalists on the defensive. But they were ready. Instantly, Randolph was on his feet. He was thirty-seven years of age, fashioned on noble physical lines, with handsome face and flowing hair. His was one of Virginia's most distinguished families, his connections were influential, and he himself was the petted darling of the people. His luxuriant mind had been highly trained, his rich and sonorous voice gave an added charm to his words.¹¹⁷⁰ He was the ostensible author¹¹⁷¹ of the plan on the broad lines of which the Constitution finally had been built. His refusal to sign it because of changes which he thought necessary, and his conversion to the extreme Constitutionalist position, which he now, for the first time, was fully to disclose, made him the strongest single asset the Constitutionalists had acquired. Randolph's open, bold, and, to the public, sudden championship of the Constitution was the explosion in the opposition's camp of a bomb which they had hoped and believed their own ammunition.

Never before, said Randolph, had such a vast event come to a head without war or force. It might well be feared that the best wisdom would be unequal to the emergency and that passion might prevail over reason. He warned the opposition that the chair "well knows what is order, how to command obedience, and that political opinions may be as honest on one side as on the other." Randolph then tried to explain his change. "I had not even the glimpse of the genius of America," said he of his refusal to sign the report of the Federal Convention. But it was now so late that to insist on amendments before ratification would mean "inevitable ruin to the Union";¹¹⁷² and he would strike off his arm rather than permit that.

Randolph then reviewed the state of the country under the Confederation: Congress powerless, public credit ruined, treaties violated, prices falling, trade paralyzed, "and justice trampled under foot." The world looks upon Americans "as little wanton bees, who had played for liberty, but had no sufficient solidity or wisdom" to keep it. True, the Federal Convention had exceeded its authority, but there was nothing else to be done. And why not use the expression "We, the people"? Was the new Government not for them? The Union is now at stake, and, exclaimed he, "I am a friend to the Union."¹¹⁷³

The secret was out, at last; the Constitutionalists' coup was revealed. His speech placed Randolph openly and unreservedly on their side. "The Governor has … thrown himself fully into the federal scale," gleefully reported the anxious Madison to the supreme Nationalist chieftain at Mount Vernon.¹¹⁷⁴ "The G[overno]r exhibited a curious spectacle to view. Having refused to sign the paper [the Constitution] everybody supposed him against it," was Jefferson's comment on Randolph's change of front.¹¹⁷⁵ Washington, perfectly informed, wrote Jay in New York that "Mr. Randolph's declaration will have considerable effect with those who had hitherto been wavering."¹¹⁷⁶ Theodoric Bland wrote bitterly to Arthur Lee that, "Our chief magistrate has at length taken his party and appears to be reprobated by the honest of both sides… He has openly declared for posterior amendments, or in other words, unconditional submission."¹¹⁷⁷

All of Randolph's influence, popularity, and prestige of family were to be counted for the Constitution without previous amendment; and this was a far weightier force, in the practical business of getting votes for ratification, than oratory or argument.¹¹⁷⁸ So "the sanguine friends of the Constitution counted upon a majority of twenty … which number they imagine will be greatly increased."¹¹⁷⁹

Randolph's sensational about-face saved the Constitution. Nothing that its advocates did during these seething three weeks of able discussion and skillful planning accomplished half so much to secure ratification. Washington's tremendous influence, aggressive as it was tactful, which, as Monroe truly said, "carried" the new National plan, was not so practically effective as his work in winning Randolph. For, aside from his uncloaked support, the Virginia Governor at that moment had a document under lock and key which, had even rumor of it got abroad, surely would have doomed the Constitution, ended the debate abruptly, and resulted in another Federal Convention to deal anew with the Articles of Confederation.

By now the Anti-Constitutionalists, or Republicans as they had already begun to call themselves, also were acting in concert throughout the country. Their tactics were cumbersome and tardy compared with the prompt celerity of the well-managed Constitutionalists; but they were just as earnest and determined. The Society of the Federal Republicans had been formed in New York to defeat the proposed National Government and to call a second Federal Convention. It opened correspondence in most of the States and had agents and officers in many of them.

CHAPTER XI
THE SUPREME DEBATE

There will undoubtedly be a greater weight of abilities against the adoption in this convention than in any other state. (Washington.)

What are the objects of the National Government? To protect the United States and to promote the general welfare. (Marshall, in his first debate.)

Now appeared the practical political managers from other States. From Saturday afternoon until Monday morning there was great activity in both camps. The politicians of each side met in secret conference to plan the operations of the coming week and to devise ways and means of getting votes. For the Constitutionalists, Gouverneur Morris was on the ground from New York;¹²¹⁶ Robert Morris and probably James Wilson, both from Philadelphia, had been in Virginia at the time of the elections and the former remained for the Convention.¹²¹⁷ During the second week the Philadelphia financier writes Gates from Richmond, lamenting "the depredations on my purse," but "inclined to think the Constitution will be adopted by Virginia."¹²¹⁸

For the opposition, Oswald, publisher of the "Independent Gazetteer," came on from Philadelphia and arrived in Richmond at the close of the first week's debate. He at once went into secret conference with Henry, Mason, and the other Anti-Constitutionalist leaders. Madison reports to Hamilton that "Oswald of Phila came here on Saturday; and he has closet interviews with the leaders of the opposition."¹²¹⁹ By the same mail Grayson advises the general Anti-Constitutionalist headquarters in New York that he is "sorry … that our affairs in the convention are suspended by a hair." Randolph's conduct "has not injured us," writes Grayson, thus proving how poorly the Anti-Constitutionalists estimated the real situation. But they were practical enough to know that "there are seven or eight dubious characters whose opinions are not known" and upon whose decisions the fate of the Constitution "will ultimately depend." Grayson cautions Lamb not to let this get into the newspapers.¹²²⁰

Just what was devised and decided by the leaders of both sides in these behind-the-doors meetings and what methods were used outside the Convention hall to influence votes, there is no means of learning exactly; though "the opposition" committee seems to have been occupied chiefly in drawing amendments.¹²²¹ But the frequent references, particularly of the Constitutionalist speakers on the floor, to improper conduct of their adversaries "out of doors" show that both sides were using every means known to the politics of the day to secure support. In the debate itself Henry certainly was making headway.¹²²²

On Monday, Henry and Mason made a dramatic entrance into the Convention hall. Walking arm in arm from their quarters in "The Swan,"¹²²³ they stopped on the steps at the doors of the New Academy and conferred earnestly for some minutes; so great was the throng that the two Anti-Constitutionalist chieftains made their way to their seats with great difficulty.¹²²⁴ When Henry rose to go on with his speech, the plan decided on during Sunday quickly was revealed. The great prize for which both sides now were fighting was the votes from Kentucky.¹²²⁵ Henry held up before them the near forfeiture to the Spanish of our right to navigate the Mississippi.¹²²⁶ This, he said, was the work of seven Northern States; but under the Confederation they had been thwarted in their fell purpose by six Southern States; and the Mississippi still remained our own. But if the Constitution was adopted, what would happen? The Senate would be controlled by those same Northern States that had nearly succeeded in surrendering the great waterway and the West and South would surely be deprived of that invaluable commercial outlet. He asked the members of Congress who were in the Convention to tell the facts about the Mississippi business. Jefferson, he avowed, had counseled Virginia to "reject this government."¹²²⁷

Henry answered the Constitutionalists' prophecy of foreign war, ridiculed danger from the Indians, proved that the Constitution would not pay Virginia's debts; and, in characteristic fashion, ranged at large over the field. The Constitution, he asserted, would "operate like an ambuscade … destroy the state governments … swallow the liberties of the people without" warning. "How are our debts to be discharged unless taxes are increased?" asked he; and demonstrated that under the Constitution taxes surely would be made heavier. Time and again he warned the Convention against the loss of liberty: "When the deprivation of our liberty was attempted, what did … the genius of Virginia tell us? 'Sell all and purchase liberty!'… Republican maxims… and the genius of Virginia landed you safe on the shore of freedom."

Once more he praised the British form of government – an oversight which a hawk-eyed young member of the Convention, John Marshall, was soon to use against him. Henry painted in darkest colors the secrecy of the Federal Convention. "Look at us – hear our transactions!– if this had been the language of the Federal Convention," there would have been no Constitution, he asserted, and with entire accuracy. Yet, the Constitution itself authorized Congress to keep its proceedings as secret as those of the Constitution's makers had been kept: "The transactions of Congress," said Henry, "may be concealed a century from the public."¹²²⁸

Seizing Madison's description of the new Government as partly National and partly Federal, Henry brought to bear all his power of satire. He was "amused" at Madison's "treatise of political anatomy… In the brain it is national; the stamina are federal; some limbs are federal, others national." Absurd! The truth was, said Henry, that the Constitution provided for "a great consolidation of government." Why not abolish Virginia's Legislature and be done with it? This National Government would do what it liked with Virginia.

As to the plan of ratifying first and amending afterwards, Henry declared himself "at a loss what to say. You agree to bind yourselves hand and foot – for the sake of what? Of being unbound. You go into a dungeon – for what? To get out… My anxiety and fears are great lest America by the adoption of this system [the Constitution], should be cast into a fathomless bottom."

Tradition has it that during this speech Henry, having frozen his hearers' blood by a terrific description of lost "liberty," with one of his sudden turns set both Convention and spectators into roars of laughter by remarking with a grimace, and as an aside, "why, they'll free your niggers."¹²²⁹ And then, with one of those lightning changes of genius, which Henry alone could make, he solemnly exclaimed, "I look on that paper [the Constitution] as the most fatal plan that could possibly be conceived to enslave a free people."¹²³⁰

Lee, in reply, spoke of the lobbying going on outside the Convention. "Much is said by gentlemen out of doors," exclaimed Lee; "they ought to urge all their objections here." He taunted Henry, who had praised the militia, with not having been himself a soldier. "I saw what the honorable gentleman did not see," cried Lee, "our men fight with the troops of that King whom he so much admires."¹²³¹

When the hot-blooded young soldier had finished his aggressive speech, Randolph could no longer restrain himself. Henry's bold challenge of Randolph's change of front had cut that proud and sensitive nature to the heart. "I disdain," thundered he, "his aspersions and his insinuations." They were "warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, let it fall, like Lucifer, never to rise again!" It was not to answer Henry that he spoke, snarled Randolph, "but to satisfy this respectable audience." Randolph then explained his conduct, reading part of the letter¹²³² that had caused all the trouble, and dramatically throwing the letter on the clerk's table, cried "that it might lie there for the inspection of the curious and malicious."¹²³³ Randolph spoke for the remainder of the day and consumed most of the next forenoon.¹²³⁴

No soldier had yet spoken for the Anti-Constitutionalists; and it perhaps was Lee's fling at Henry that now called a Revolutionary officer to his feet against the Constitution. A tall, stiff, raw-boned young man of thirty years arose. Poorly educated, slow in his mental processes,¹²³⁵ James Monroe made a long, dull, and cloudy speech, finally declaring of the Constitution, "I think it a dangerous government"; and asking "why … this haste – this wild precipitation?" Long as Monroe's speech was, he reminded the Convention that he had "not yet said all that I wish upon the subject" and that he would return to the charge later on.¹²³⁶

Monroe did not help or hurt either side except, perhaps, by showing the members that all the Revolutionary veterans were not for the Constitution. Neither members nor spectators paid much attention to him, though this was no reflection on Monroe, for the Convention did not listen with patience to many speakers except Henry. When Henry spoke, every member was in his seat and the galleries were packed. But only the most picturesque of the other speakers could hold the audience for longer than half an hour; generally members walked about and the spectators were absent except when Henry took the floor.¹²³⁷

As usual, the Constitutionalists were ready with their counter-stroke. Wythe in the chair recognized a tall, ungainly young man of thirty-two. He was badly dressed in a loose, summer costume, and his blazing black eyes and unkempt raven hair made him look more like a poet or an artist than a lawyer or statesman.¹²³⁸ He had bought a new coat the day the Convention met; but it was a most inexpensive addition to his raiment, for it cost but one pound, Virginia currency, then greatly depreciated.¹²³⁹ He probably was the best liked of all the members of the Convention. Sociable to extreme good-fellowship, "his habits," says Grigsby, "were convivial almost to excess";¹²⁴⁰ and it is more than likely that, considering the times, these habits in his intimate social intercourse with his fellow members helped to get more votes than his arguments on the floor, of which he now was to make the first.¹²⁴¹ His four years' record as a soldier was as bright and clean as that of any man from any State who had fought under Washington.

So when John Marshall began to speak, he was listened to with the ears of affection; and any point the opposition had made by the fact that Monroe the soldier had spoken against the Constitution was turned by Marshall's appearance even before he had uttered a word. The young lawyer was also accounted an "orator" at this time,¹²⁴² a fact which added to the interest of his fellow members in his speech.

The question, Marshall said, was "whether democracy or despotism be most eligible."¹²⁴³ He was sure that the framers and supporters of the Constitution "intend the establishment and security of the former"; they are "firm friends of the liberty and the rights of mankind." That was why they were for the Constitution. "We, sir, idolize democracy." The Constitution was, said he, the "best means of protecting liberty." The opposition had praised monarchy, but, deftly avowed Marshall, "We prefer this system to any monarchy"; for it provides for "a well regulated democracy."

He agreed with Henry that maxims should be observed; they were especially "essential to a democracy." But, "what are the … maxims of democracy?.. A strict observance of justice and public faith, and a steady adherence to virtue. These, Sir, are the principles of a good government,"¹²⁴⁴ declared the young Richmond Constitutionalist.

"No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith," cried Marshall. "Would to Heaven," he exclaimed, "that these principles had been observed under the present government [the Confederation]." He was thinking now of his experience in the Legislature and appealing to the honesty of the Convention. If the principles of justice and good faith had been observed, continued he, "the friends of liberty would not be so willing now to part with it [the Confederation]."

Could Virginians themselves boast that their own Government was based on justice? "Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by an act of Assembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land?"¹²⁴⁵ Skillfully he turned against Henry the latter's excuse for the execution of Philips, and dramatically asked: "Where is our safety, when we are told that this act was justifiable because the person was not a Socrates?.. Shall it be a maxim that a man shall be deprived of his life without the benefit of the law?"

As to the navigation of the Mississippi, he asked: "How shall we retain it? By retaining that weak government which has hitherto kept it from us?" No, exclaimed Marshall, but by a Government with "the power of retaining it." Such a Government, he pointed out, was that proposed in the Constitution. Here again the Constitutionalist managers displayed their skill. Marshall was the best man they could have chosen to appeal to the Kentucky members on the Mississippi question. His father, mother, and his family were now living in Kentucky, and his relative, Humphrey Marshall, was a member of the Convention from that district.¹²⁴⁶ Marshall himself was the legislative agent of the District of Kentucky in Richmond. The development of the West became a vital purpose with John Marshall, strengthening with the years; and this was a real force in the growth of his views on Nationality.¹²⁴⁷

Henry's own argument, that amendments could not be had after adoption, proved, said Marshall, that they could not be had before. In all the States, particularly in Virginia, there were, he charged, "many who are decided enemies of the Union." These were inspired by "local interests," their object being "disunion." They would not propose amendments that were similar or that all could agree upon. When the Federal Convention met, said Marshall, "we had no idea then of any particular system. The formation of the most perfect plan was our object and wish"; and, "it was imagined" that the States would with pleasure accept that Convention's work. But "consider the violence of opinions, the prejudices and animosities which have been since imbibed"; and how greatly they "operate against mutual concessions."

Marshall reiterated that what the Constitutionalists were fighting for was "a well-regulated democracy." Could the people themselves make treaties, enact laws, or administer the Government? Of course not. They must do such things through agents. And, inquired he, how could these agents act for the people if they did not have power to do so? That the people's agents might abuse power was no argument against giving it, for "the power of doing good is inseparable from that of doing some evil." If power were not given because it might be misused, "you can have no government." Thus Marshall stated that principle which he was to magnify from the Supreme Bench years later.

"Happy that country," exclaimed the young orator, "which can avail itself of the misfortunes of others … without fatal experience!" Marshall cited Holland. The woes of that country were caused, said he, by "the want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties" – in short, by such a government, or rather absence of government, as America then had under the Confederation. If Holland had had such a government as the Constitution proposed, she would not be in her present sorry plight. Marshall was amused at Henry's "high-colored eulogium on such a government."

There was no analogy, argued he, between "the British government and the colonies, and the relation between Congress and the states. We were not represented in Parliament. Here [under the Constitution] we are represented." So the arguments against British taxation "do not hold against the exercise of taxation by Congress." The power of taxation by Congress to which Henry objected was "essentially necessary; for without it there will be no efficiency in the government." That requisitions on the States could not be depended on had been demonstrated by experience, he declared; the power of direct taxation was, therefore, necessary to the very existence of the National Government.

"The possibility of its being abused is urged as an argument against its expediency"; but, said Marshall, such arguments would prevent all government and result in anarchy. "All delegated powers are liable to be abused." The question was, whether the taxing power was "necessary to perform the objects of the Constitution?.. What are the objects of national government? To protect the United States, and to promote the general welfare. Protection, in time of war, is one of its principal objects. Until mankind shall cease to have ambition and avarice, wars will arise."

Experience had shown, said Marshall, that one State could not protect the people or promote general welfare. "By the national government only" could these things be done; "shall we refuse to give it power to do them?" He scorned the assertion "that we need not be afraid of war. Look at history," he exclaimed, "look at the great volume of human nature. They will foretell you that a defenseless country cannot be secure. The nature of men forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The powers of Europe are jealous of us. It is our interest to watch their conduct and guard against them. They must be pleased with our disunion. If we invite them by our weakness to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place."

The power of National taxation, therefore, was necessary, Marshall asserted. "There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose?" If so, "it is, then, necessary to give the government that power in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared." History, human nature, and "our own particular experience, will confirm this truth." If danger should come upon us without power to meet it, we might resort to a dictatorship; we once were on the point of doing that very thing, said he – and even Henry and Mason did not question this appeal of Marshall to the common knowledge of all members of the Convention.

"Were those who are now friends to this Constitution less active in the defense of liberty, on that trying occasion, than those who oppose it?" scathingly asked Marshall. "We may now … frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. If we be prepared to defend ourselves, there will be little inducement to attack us. But if we defer giving the necessary power to the general government till the moment of danger arrives, we shall give it then, and with an unsparing hand."

It was not true, asserted Marshall, that the Confederation carried us through the Revolution; "had not the enthusiasm of liberty inspired us with unanimity, that system would never have carried us through it." The war would have been won much sooner "had that government been possessed of due energy." The weakness of the Confederation and the conduct of the States prolonged the war. Only "the extreme readiness of the people to make their utmost exertions to ward off solely the pressing danger, supplied the place of requisitions." But when this danger was over, the requisition plan was no longer effective. "A bare sense of duty," said he, "is too feeble to induce men to comply with obligations."

It was plain, then, Marshall pointed out, that "the government must have the sinews of war some other way." That way was by direct taxation which would supply "the necessities of government … in a peaceable manner"; whereas "requisitions cannot be rendered efficient without a civil war."

What good would it do for Congress merely to remonstrate with the States, as Henry had proposed, if we were at war with foreign enemies? There was no danger that Congress, under the Constitution, would not lay taxes justly, asserted Marshall; for if members of Congress laid unjust taxes, the people would not reëlect them. Under the Constitution, they were chosen by the same voters who elected members of the State Legislature. These voters, said he, "have nothing to direct them in the choice but their own good." Men thus elected would not abuse their power because that would "militate against their own interest… To procure their reelection, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their own good."

Henry had asked whether the adoption of the Constitution "would pay our debts." "It will compel the states to pay their quotas," answered Marshall. "Without this, Virginia will be unable to pay. Unless all the states pay, she cannot… Economy and industry are essential to our happiness"; but the Confederation "takes away the incitements to industry, by rendering property insecure and unprotected." The Constitution, on the contrary, "will promote and encourage industry."

The statement of the Anti-Constitutionalists that the extent of the country was too great for a strong National Government was untrue, argued Marshall. Also, said he, this objection was from writers who criticized those governments "where representation did not exist." But, under the Constitution, representation would exist.

Answering Henry's objection, that there were no effective checks in the Constitution, Marshall inquired, "What has become of his enthusiastic eulogium on the American spirit?" There, declared Marshall, was the real check and control. "In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own." In such considerations were found the greatest security from an improper exercise of power.

"Is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration?.. We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it."

Returning to the subject of amendments, "what," asked Marshall, "shall restrain you from amending it, if, in trying it, amendments shall be found necessary… When experience shall show us any inconvenience, we can then correct it… If it be necessary to change government, let us change that government which has been found to be defective." The Constitution as it stood filled the great objects which everybody desired – "union, safety against foreign enemies, and protection against faction [party] – against what has been the destruction of all republics."

He turned Henry's unhappy praise of the British Constitution into a weapon of deadly attack upon the opposition. The proposed Constitution, said Marshall, was far better than the British. "I ask you if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them? If your senators were for life, would they be more agreeable to you? If your President were not accountable to you for his conduct, – if it were a constitutional maxim, that he could do no wrong, – would you be safer than you are now? If you can answer, Yes, to these questions, then adopt the British constitution. If not, then, good as that government may be, this [Constitution] is better."

Referring to "the confederacies of ancient and modern times" he said that "they warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them." The ocean does not protect us from war; "Sir," exclaimed Marshall, "the sea makes them neighbors to us… What dangers may we not apprehend to our commerce! Does not our naval weakness invite an attack on our commerce?" Henry had said "that our present exigencies are greater than they will ever be again." But, asked he, "Who can penetrate into futurity?"

Henry's objection that the National Government, under the Constitution, would "call forth the virtue and talents of America," to the disadvantage of the States, was, Marshall said, the best guarantee that the National Government would be wisely conducted. "Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly?" On the contrary, "the virtue and talents of the members of the general government will tend to the security instead of the destruction of our liberty… The power of direct taxation is essential to the existence of the general government"; if not, the Constitution was unnecessary; "for it imports not what system we have, unless it have the power of protecting us in time of war."¹²⁴⁸

This address to the Virginia Convention is of historic interest as John Marshall's first recorded utterance on the Constitution of which he was to become the greatest interpreter. Also, it is the first report of Marshall's debating. The speech is not, solely on its merits, remarkable. It does not equal the logic of Madison, the eloquence of Randolph or Lee, or the brilliancy of Corbin. It lacks that close sequence of reasoning which was Marshall's peculiar excellence. In provoking fashion he breaks from one subject when it has been only partly discussed and later returns to it. It is rhetorical also and gives free rein to what was then styled "Marshall's eloquence."

The warp and woof of Marshall's address was woven from his military experience; he forged iron arguments from the materials of his own soldier life. Two thirds of his remarks were about the necessity of providing against war. But the speech is notable as showing, in their infancy, those views of government which, in the shaggy strength of their maturity, were to be so influential on American destiny.¹²⁴⁹ It also measures the growth of those ideas of government which the camp, the march, and the battlefield had planted in his mind and heart. The practical and immediate effect of the speech, which was what the Constitutionalists, and perhaps Marshall himself, cared most about, was to strengthen the soldier vote for the Constitution and to cause the Kentucky members to suspend judgment on the Mississippi question.

For the Anti-Constitutionalists there now arose a big-statured old man "elegantly arrayed in a rich suit of blue and buff, a long queue tied with a black ribbon dangling from his full locks of snow, and his long black boots encroaching on his knees."¹²⁵⁰ His ancestors had been Virginians even before the infant colony had a House of Burgesses. When Benjamin Harrison now spoke he represented the aristocracy of the Old Dominion, and he launched all his influence against the Constitution. For some reason he was laboring "under high excitement," and was almost inaudible. He lauded the character of the Virginia Legislature, of which he had been a member. The Constitution, insisted Harrison, "would operate an infringement of the rights and liberties of the people."¹²⁵¹

George Nicholas answered at length and with characteristic ability and learning.¹²⁵² But his speech was quite unnecessary, for what Harrison had said amounted to nothing. On the morning of the ninth day of the Convention Madison continued his masterful argument, two sections of which he already had delivered.¹²⁵³ He went out of his way to praise Marshall, who, said Madison, had "entered into the subject with a great deal of ability."¹²⁵⁴

Mason, replying on taxation, said that under the Constitution there were "some land holders in this state who will have to pay twenty times as much [taxes] as will be paid for all the land on which Philadelphia stands." A National excise tax, he declared, "will carry the exciseman to every farmer's house, who distills a little brandy where he may search and ransack as he pleases." And what men, asked Mason, would be in Congress from Virginia? Most of them would be "chosen … from the higher order of the people – from the great, the wealthy – the well-born– the well-born, Mr. Chairman, that aristocratic idol – that flattering idea – that exotic plant which has been lately imported from the ports of Great Britain, and planted in the luxurious soil of this country."

It is significant to find the "well-born," wealthy, learned, and cultivated Mason taking this tone. It shows that the common people's dislike of a National Government was so intense that even George Mason pandered to it. It was the fears, prejudices, and passions of the multitude upon which the enemies of the Constitution chiefly depended; and when Mason stooped to appeal to them, the sense of class distinction must have been extreme. His statement also reveals the economic line of cleavage between the friends and foes of the Constitution.

It was in this speech that Mason made his scathing "cat and Tory" comparison. He knew those who were for the Constitution, "their connections, their conduct, their political principles, and a number of other circumstances. There are a great many wise and good men among them"; but when he looked around and observed "who are the warmest and most zealous friends to this new government," it made him "think of the story of the cat transformed to a fine lady: forgetting her transformation and happening to see a rat, she could not restrain herself, but sprang upon it out of the chair."¹²⁵⁵