Volume I Part 26 (1/2)

John Marshall voted for this bill, which pa.s.sed without opposition.[675]

He became a stockholder in the corporation and paid several a.s.sessments 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 establis.h.i.+ng the High Court of Chancery.”[677] Three weeks later he reported this bill to the House;[678] and when the bill pa.s.sed 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 Const.i.tution, were: The vexed question of the debts owed by Virginia planters to British subjects; the utter impotence of the so-called Federal Government and the difficulty of getting the States to give it any means or authority to discharge the National debts and uphold the National honor; and the religious controversy involving, at bottom, the question of equal rights for all sects.[684]

The religious warfare[685] did not greatly appeal to Marshall, it would seem, although it was of the gravest importance. Bad as the state of religion was at the beginning of the Revolution, it was worse after that struggle had ended. ”We are now to rank among the nations of the world,”

wrote Mason to Henry in 1783; ”but whether our independence shall prove a blessing or a curse must depend upon our wisdom or folly, virtue or wickedness.... The prospect is not promising.... A depravity of manners and morals prevails among us, to the destruction of all confidence between man and man.”[686] The want of public wors.h.i.+p ”increases daily; nor have we left in our extensive State three churches that are decently supported,” wrote Mrs. Carrington, the sister of John Marshall's wife, a few years later.[687]

Travelers through Virginia during this period note that church buildings of all denominations were poor and mean and that most of these were falling into ruins; while ministers barely managed to keep body and soul together by such scanty mites as the few pious happened to give them or by the miserable wages they earned from physical labor.[688] These scattered and decaying little church houses, the preachers toiling with axe or hoe, formed, it appears, an accurate index of the religious indifference of the people.[689]

There were gross inequalities of religious privileges. Episcopal clergymen could perform marriage ceremonies anywhere, but ministers of the other denominations could do so only in the county where they lived.

The property of the Episcopal Church came from the pockets of all the people; and the vestries could tax members of other churches as well as their own for the relief of the poor.[690] It was a curious swirl of conflicting currents. Out of it came the proposition to levy an a.s.sessment on everybody for the support of religion; a bill to incorporate the Episcopal Church which took away its general powers of vestry taxation, but confirmed the t.i.tle to the property already held; and the marriage law which gave ministers of all denominations equal authority.[691]

Although these propositions were debated at great length and with much spirit and many votes were taken at various stages of the contest, Marshall recorded his vote but twice. He did not vote on the resolution to incorporate the Episcopal Church;[692] or to sell the glebe lands;[693] nor did he vote on the marriage bill.[694] He voted against Madison's motion to postpone consideration of the bill for a general a.s.sessment to support religion, which carried,[695] thus killing the bill. When the bill to incorporate the Episcopal Church came to a final vote, Marshall voted ”aye,” as, indeed, did Madison.[696]

But if Marshall took only a languid interest in the religious struggle, he was keen-eyed and active on the other two vital matters--the payment of debts, both public and private, and the arming of the Federal Government with powers necessary to its existence. Throughout this whole period we see the rapid and solid growth of the idea of Nationality, the seeds of which had been planted in John Marshall's soul by the fingers of military necessity and danger. Here, too, may be found the beginning of those ideas of contract which developed throughout his life and hardened as they developed until finally they became as flint. And here also one detects the first signs of the change in what Marshall himself called ”the wild and enthusiastic notions”[697] with which, only a few years earlier, he had marched forth from the backwoods, to fight for independence and popular government.

Virginia planters owed an immense amount of money to British merchants.

It had been the free-and-easy habit of Virginians to order whatever they wanted from England and pay for it in the produce of their fields, chiefly tobacco. The English merchants gave long credit and were always willing to extend it when the debt fell due. The Virginians, on their part, found the giving of new notes a convenient way of canceling old obligations and thus piled up mountains of debt which they found hard to remove. After the war was over, they had little means with which to discharge their long overdue accounts.[698]

During the Revolution stringent and radical laws were pa.s.sed, preventing the recovery of these debts in the courts, sequestering the property and even forfeiting the estates owned by British subjects in Virginia; and a maze of acts, repealing and then reviving the statutes that prevented payment, were pa.s.sed after the war had ended.[699] The Treaty between the United States and Great Britain provided as one of the conditions of peace that all these legal impediments to the recovery of British debts should be removed.[700] Failure to repeal the anti-debt legislation pa.s.sed during the war was, of course, a plain infraction of this contract between the two countries; while the enactment of similar laws after the Treaty had become binding, openly and aggressively violated it.

Within two weeks after Marshall took his seat in the House in 1784, this sorely vexed question came up. A resolution was brought in ”that so much of all and every act or acts of the a.s.sembly, now in force in this commonwealth as prevents a due compliance with the stipulation contained in the definitive Treaty of Peace entered into between Great Britain and America ought to be repealed”; but a motion to put the question to agree with this resolution was defeated by a majority of twenty. John Marshall voted to put the question.[701]

Those resisting the effort to carry out the Treaty of Peace declared that Great Britain itself had not complied with it, because the British had not surrendered the American posts retained by them at the close of the war and had not returned or paid for the slaves carried away by the British forces.[702] A fortnight after the first defeat of the movement against the anti-debt law, a resolution was laid before the House instructing Virginia's Representatives in Congress to request that body to protest to the British Government against this infraction of the Treaty and to secure reparation therefor, and stating that the Virginia Legislature would not cooperate ”in the complete fulfillment of said treaty” until this was done. The intent of the resolution was that no British debts should be paid for a long time to come.

But the resolution did provide that, when this reparation was made, or when ”Congress shall adjudge it indispensably necessary,” the anti-debt laws ”ought to be repealed and payment made to all [creditors] in such time and manner as shall consist with the exhausted situation of this Commonwealth”; and that ”the further operation of all and every act or acts of the a.s.sembly concerning escheats and forfeitures from British subjects ought to be prevented.”[703] An amendment was offered containing the idea that the debtors might deduct their losses from their debts, thus taking a little step toward payment. Another amendment to strengthen this was also proposed.

Had these amendments carried, the policy of an early payment of the British debts would have prevailed. Marshall voted for both as did Madison. The amendments, however, were overwhelmingly defeated.[704] The situation and point of view of the British merchants to whom these debts were due and who, depending upon the faithful performance of the Treaty, had come to Virginia to collect the money owing them, is ill.u.s.trated by a pet.i.tion which George F. Norton presented to the House. He was a member of the mercantile firm of Norton and Sons, of London, from whom Virginians had made purchases on credit for a generation before the war.

He declared that his firm had ”been compelled to pay many debts due from the said company, but he has been unable to collect any due to them, in consequence of the laws prohibiting recovery of British debts, by which he has been reduced to the greatest extremes.”[705]

After the summer adjournment the irrepressible conflict between keeping or breaking the National faith once more arose. Henry, who was the champion of the debtors, had been elected Governor and was ”_out of the way_.”[706] Several British merchants had proposed to accept payments of their debts in installments. Ratifications of the Treaty had been exchanged. The friends of National honor and private good faith had gathered headway. Finally a bill pa.s.sed the House repealing the anti-debt laws. The Senate and the House came to an agreement.

Here arose a situation which pictures the danger and difficulty of travel in that day. Before the bill had been sent back to the House, enrolled, examined, and signed by both presiding officers, several members went across the river to spend the night at the neighboring hamlet of Manchester. It was the day before adjournment and they expected to return the next morning. But that night the river froze[707]

and they could not get back. So this important measure fell through for the session.[708]

No ”ayes” and ”noes” were called for during this final battle, but Marshall probably took part in the debate and it is certain that he used the influence which his popularity among members gave him for the pa.s.sage of this law.

”I wish with you,” wrote Marshall to Monroe, in early December, ”that our a.s.sembly had never pa.s.sed those resolutions respecting the British Debts which have been so much the subject of reprehension throughout the States. I wish it because it affords a pretext to the British to retain possession of the posts on the lakes but much more because I ever considered it as a measure tending to weaken the federal bands which in my conception are too weak already. We are about, tho reluctantly, to correct the error.”

Marshall despondently summed up the work of the session: ”We have as yet done nothing finally. Not a bill of public importance, in which an individual was not particularly interested, has pa.s.sed.”[709]

Marshall was not a candidate for the Legislature in 1785-86, but sought and secured election in 1787, when he was sent from Henrico County, where Richmond was situated. During this hiatus in Marshall's public life another effort was made to repeal the anti-debt laws, but so bitter was the resistance that nothing was accomplished. Madison was distressed.[710] When Marshall again became a member of the General a.s.sembly the question of the British debts was brought forward once more. This time the long-delayed bill was pa.s.sed, though not until its foes had made their point about the runaway slaves and the unevacuated posts.[711]

A resolution was brought in that the anti-debt laws ”ought to be repealed,” but that any act for this purpose should be suspended until the other States had pa.s.sed similar laws. An amendment was defeated for making the suspension until Great Britain complied with the Treaty. John Marshall voted against it, as did his father Thomas Marshall, who was now a member of the Virginia Legislature from the District of Kentucky.[712] Another amendment to pay the British debts ”in such time and manner as shall consist with the exhausted situation of this Commonwealth” met a similar fate, both Marshalls, father and son, voting against it.[713] The resolution was then pa.s.sed, the two Marshalls voting for it.[714]

Marshall was then appointed a member of the special committee to prepare and bring in a bill to carry out the resolution.[715] In a few days this bill was laid before the House. Except the extension clause, this bill was probably drawn by Marshall. It was short and to the point. It repealed everything on the statute books repugnant to the Treaty of Peace. It specifically ”directed and required” the courts to decide all cases ”arising from or touching said treaty” ”according to the tenor, true intent, and meaning of same” regardless of the repealed laws. But the operation of the law was suspended until Congress informed the Governor ”that the other states in the Union have pa.s.sed laws enabling British creditors to recover their debts agreeably to the terms of the treaty.”[716] The bill was emphasized by a brief preamble which stated that ”it is agreed by the fourth article of the treaty of peace with Great Britain that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted.”