The Life of John Marshall Volume I Part 25

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

In 1783, a small wooden building stood among the two or three hundred little frame houses[614] which, scattered irregularly from the river to the top of the hill, made up the town of Richmond at the close of the Revolution. It was used for "b.a.l.l.s," 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 a.s.sembly 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 impa.s.sable roads from every county of the Commonwealth.[615]

The twenty years that had pa.s.sed 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 a.s.sembly sat, was an anteroom; and at the entrance between these two rooms stood a burly doorkeeper, who added to the quiet and gravity of the proceedings by frequently calling out in a loud voice the names of members whom const.i.tuents 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 a.s.sembly 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 a.s.sistance 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 a.s.sembly 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 a.s.sembly 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 pa.s.s 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 a.s.sembly of 1783, he writes to Colonel Levin Powell: "This long session has not produced a single bill of Public importance except that for the readmission of Commutables.[641] ... It ought to be perfect as it has twice pa.s.sed 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 pa.s.s.[642]... It is surprising that Gentlemen of character cannot dismiss their private animosities, but will bring them in the a.s.sembly."[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 pa.s.s'd and with it a suspension of the collections of taxes till the first of January next.... Colo. Harry Lee of the Legionary corps" is to take the place of "Col^o. R. H. Lee" whose "services are lost to the a.s.sembly forever"; and Marshall does not know "whether the public will be injur'd by the change." Since the pa.s.sage of the "Commutable bill ... the attention of the house has been so fix'd on the Citizen bill that they have scarcely thought on any other subject.... Col. [George] Nicholas (politician not fam'd for hitting a medium) introduced one admitting into this country every species of Men except Natives who had borne arms against the state.... Mr. Jones introduc'd by way of amendment, one totally new and totally opposite to that which was the subject of deliberation. He spoke with his usual sound sense and solid reason. Mr. Henry opposed him.

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

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

Marshall had just turned his twenty-seventh year, and the Council of State was supposed to be made up of men of riper years and experience.

Older men, and especially the judges of the courts, resented the bestowal of this distinction upon so youthful a member serving his first term. Edmund Pendleton, Judge of the High Court of Chancery and President of the Court of Appeals, wrote to Madison that: "Young Mr.

Marshall is elected a Councillor.... He is clever, but I think too young for that department, which he should rather have earned as a retirement and reward, by ten or twelve years hard service in the a.s.sembly."[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 const.i.tutional 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 Const.i.tution 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 pa.s.sed on requisitions from other States for the delivery of fugitive criminals.[652]

[Ill.u.s.tration: MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF STATE, 1784]

[Ill.u.s.tration: MARSHALL'S SIGNATURE IN 1797]

[Ill.u.s.tration: SIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D VIRGINIA REGIMENT]

Marshall's signature to the minutes of the Council is totally unlike that of his more mature years, as, indeed, is the chirography of his letters of that period. He signed the Council records in large and dashing hand with flourishes--it is the handwriting of a confident, care-free, rollicking young man with a tinge of the dare-devil in him.

These signatures are so strangely dissimilar to his later ones that they deserve particular attention. They denote Marshall's sense of his own importance and his certainty of his present position and future prospects.

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

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

Marshall himself gives the true account of these important incidents.

"I am no longer a member of the Executive [Council]," Marshall informs his friend James Monroe, "the opinion of the Judges with regard to a Councillor's standing at the bar determined me to retire from the Council board. Every person is now busied about the ensuing election."

Certainly Marshall was thus occupied; for he writes Monroe that "I had made a small excursion into Fauquier to enquire into the probability of my being chosen by the people, should I offer as a candidate at the next election." Marshall tells the political news, in which he shows minute information, and finally advises Monroe that "I have been maneuvering amazingly to turn your warrants into cash if I succeed I shall think myself a first rate speculator."[654]

Marshall's personal attention[655] to his candidacy bore fruit; and for the second time he was chosen as Delegate from Fauquier, although he now lived in Henrico County.[656]

[Ill.u.s.tration: FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE (_Facsimile_)]

When the Legislature convened, nine days again pa.s.sed 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 pet.i.tions of soldiers and officers, the shower of applications of counties and towns for various laws and other matters of pressing local and personal concern in every part of Virginia.[659] To the cases of his old comrades in arms who applied to the Legislature for relief, Marshall was particularly attentive.[660] He became the champion of the Revolutionary veterans, most of whom were very poor men.[661]

Upon Washington's suggestion a bill was brought in for the relief of Thomas Paine by vesting in him a moderate tract of public lands. Upon the third reading it was "committed to a committee of the whole house"

and there debated. Marshall, who apparently led the fight for Paine, "read in his place" several amendments. But notwithstanding Washington's plea, the immense services of Paine to the American cause during the Revolution, and the amendments which, obviously, met all objections, the bill was defeated.[662]

Numerous things of human interest happened during this session which show the character of the Legislature and the state of the people. An Englishman named Williamson[663] had gone to Ess.e.x 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 pet.i.tioned the Legislature to interfere.

The pet.i.tion was referred to the Committee on Propositions and Grievances[665] of which Marshall was a member. This committee reported that the pet.i.tion 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 quant.i.ty 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 pet.i.tioned the Legislature that the debt be paid by the State. The Committee on Propositions and Grievances took charge of this pet.i.tion, 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 pa.s.sed.[670]

A vote which gives us the first sight of Marshall's idea about changing a const.i.tution was taken during this session. Augusta County had pet.i.tioned 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 a.s.sume; 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 Const.i.tution]

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 const.i.tution 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 Const.i.tution 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 pa.s.sed 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 a.s.signs forever."[674]