Volume I Part 26 (2/2)
The opponents of the bill tried to emasculate it by an amendment that the law should not go into effect until the Governor of Virginia made public proclamation ”that Great Britain hath delivered up to the United States the posts therein now occupied by British troops” and was taking measures to return the runaway slaves or to pay for them. They succeeded. Whether from agitation outside the legislative hall[717] or from the oratory of Patrick Henry, or from a greater power of the leaders in lobbying among their fellow members, a quick and radical transformation of sentiment took place. Probably all these causes joined to produce it. By a crus.h.i.+ng majority of forty-nine the amendment was adopted and the bill denatured. Both John Marshall and his father voted against the amendment, as did George Mason, Benjamin Harrison, and James Monroe.[718]
Thus, in two weeks, a majority of thirty-three against this very scheme for breaking the force of the bill was changed to a majority of forty-nine in favor of it. The bill as amended pa.s.sed the next day.[719]
Such were the instability of the Virginia Legislature at this period and the people's bitter opposition to the payment of the debts owed to British subjects.
The effect on Marshall's mind was very great. The popular readiness to escape, if not to repudiate, contracted obligations, together with the whimsical capriciousness of the General a.s.sembly, created grave misgivings in his mind. His youthful sympathy with the people was beginning to disappear. Just as the roots of his Nationalist views run back to Valley Forge, so do the roots of his economic-political opinions penetrate to the room in the small frame building where sat the Legislature of Virginia in the first years that followed the close of the war.
But the mockery of government exhibited by the Federal establishment at this period of chaos impressed Marshall even more than the spirit of repudiation of debts and breaking of contracts which was back of the anti-debt legislation.[720] The want of the National power during the Revolution, which Marshall had seen from the ”lights ... which glanced from the point of his sword,”[721] he now saw through the tobacco smoke which filled the grimy room where the Legislature of Virginia pa.s.sed laws and repealed them almost at the same time.[722] The so-called Federal Government was worse than no government at all; it was a form and a name without life or power. It could not provide a s.h.i.+lling for the payment of the National debt nor even for its own support. It must humbly ask the States for every dollar needed to uphold the National honor, every penny necessary for the very existence of the masquerade ”Government” itself. This money the States were slow and loath to give and doled it out in miserable pittances.
Even worse, there was as yet little conception of Nationality among the people--the spirit of unity was far weaker than when resistance to Great Britain compelled some kind of solidarity; the idea of cooperation was even less robust than it was when fear of French and Indian depredations forced the colonists to a sort of common action. Also, as we shall see, a general dislike if not hostility toward all government whether State or National was prevalent.[723]
As to the National Government, it would appear that, even before the war was over, the first impulse of the people was to stop entirely the feeble heart that, once in a while, trembled within its frail bosom: in 1782, for instance, Virginia's Legislature repealed the law pa.s.sed in May of the preceding year authorizing Congress to levy a duty on imports to carry on the war, because ”the permitting any power other than the general a.s.sembly of this commonwealth, to levy duties or taxes upon the citizens of this state within the same, is injurious to its sovereignty”
and ”may prove destructive of the rights and liberty of the people.”[724]
A year later the Legislature was persuaded again to authorize Congress to levy this duty;[725] but once more suspended the act until the other States had pa.s.sed ”laws” of the same kind and with a proviso which would practically have nullified the working of the statute, even if the latter ever did go into effect.[726] At the time this misshapen dwarf of a Nationalist law was begotten by the Virginia Legislature, Marshall was a member of the Council of State; but the violent struggle required to get the a.s.sembly to pa.s.s even so puny an act as this went on under his personal observation.
When Marshall entered the Legislature for the second time, the general subject of the debts of the Confederation arose. Congress thought that the money to pay the loans from foreign Governments by which the war had been carried on, might be secured more easily by a new mode of apportioning their quotas among the thirteen States. The Articles of Confederation provided that the States should pay on the basis of the value of lands. This worked badly, and Congress asked the States to alter the eighth Article of Confederation so as to make the States contribute to the general treasury on a basis of population. For fear that the States would not make this change, Congress also humbly pet.i.tioned the thirteen ”sovereignties” to ascertain the quant.i.ty and value of land as well as the number of people in each State.
On May 19, 1784,[727] after the usual debating, a strong set of Nationalist resolutions was laid before the Virginia House of Delegates.
They agreed to the request of Congress to change the basis of apportioning the debt among the States; favored providing for the payment of a part of what each State owed Congress on the requisition of three years before; and even went so far as to admit that if the States did not act, Congress itself might be justified in proceeding. The last resolution proposed to give Congress the power to pa.s.s retaliatory trade laws.[728] These resolutions were adopted with the exception of one providing for the two years' overdue payment of the Virginia share of the requisition of Congress made in 1781.
Marshall was appointed a member of a special committee to ”prepare and bring in bills” to carry out the two resolutions for changing the basis of apportionment from land to population, and for authorizing Congress to pa.s.s retaliatory trade laws. George Mason and Patrick Henry also were members of this committee on which the enemies of the National idea had a good representation. Two weeks later the bills were reported.[729]
Three weeks afterwards the retaliatory trade bill was pa.s.sed.[730] But all the skill and ability of Madison, all the influence of Marshall with his fellow members, could not overcome the sentiment against paying the debts; and, as usual, the law was neutralized by a provision that it should be suspended until all the other States had enacted the same kind of legislation.
The second contest waged by the friends of the Nationalist idea in which Marshall took part was over the extradition bill which the Legislature enacted in the winter of 1784. The circ.u.mstances making such a law so necessary that the Virginia Legislature actually pa.s.sed it, draw back for a moment the curtain and give us a view of the character of our frontiersmen. Daring, fearless, strong, and resourceful, they struck without the sanction of the law. The object immediately before their eyes, the purpose of the present, the impulse or pa.s.sion of the moment--these made up the practical code which governed their actions.
Treaties of the American ”Government” with the Governments of other countries were, to these wilderness subduers, vague and far-away engagements which surely never were meant to affect those on the outskirts of civilization; and most certainly could not reach the scattered dwellers in the depths of the distant forests, even if such international compacts were intended to include them. As for the Government's treaties or agreements of any kind with the Indian tribes, they, of course, amounted to nothing in the opinion of the frontiersmen.
Who were the Indians, anyway, except a kind of wild animal very much in the frontiersman's way and to be exterminated like other savage beasts?
Were not the Indians the natural foes of these white Lords of the earth?[731]
Indeed, it is more than likely that most of this advance guard of the westward-marching American people never had heard of such treaties until the Government's puny attempt to enforce them. At any rate, the settlers fell afoul of all who stood in their way; and, in the falling, spared not their hand. Madison declared that there was ”danger of our being speedily embroiled with the nations contiguous to the U. States, particularly the Spaniards, by the licentious & predatory spirit of some of our Western people. In several instances, gross outrages are said to have been already practiced.”[732] Jay, then Secretary of State, mournfully wrote to Jefferson in Paris, that ”Indians have been murdered by our people in cold blood, and no satisfaction given; nor are they pleased with the avidity with which we seek to acquire their lands.”
Expressing the common opinion of the wisest and best men of the country, who, with Madison, were horrified by the ruthless and unprovoked violence of the frontiersmen, Jay feared that ”to pitch our tents through the wilderness in a great variety of places, far distant from each other,” might ”fill the wilderness with white savages ... more formidable to us than the tawny ones which now inhabit it.” No wonder those who were striving to found a civilized nation had ”reason ... to apprehend an Indian war.”[733]
To correct this state of things and to bring home to these sons of individualism the law of nations and our treaties with other countries, Madison, in the autumn of 1784, brought in a bill which provided that Virginia should deliver up to foreign Governments such offenders as had come within the borders of the Commonwealth. The bill also provided for the trial and punishment by Virginia courts of any Virginia citizen who should commit certain crimes in ”the territory of any Christian nation or Indian tribe in amity with the United States.” The law is of general historic importance because it was among the first, if not indeed the very first, ever pa.s.sed by any legislative body against filibustering.[734]
The feebleness of the National idea at this time; the grotesque notions of individual ”rights”; the weakness or absence of the sense of civic duty; the general feeling that everybody should do as he pleased; the scorn for the principle that other nations and especially Indian tribes had any rights which the rough-and-ready settlers were bound to respect, are shown in the hot fight made against Madison's wise and moderate bill. Viewed as a matter of the welfare and safety of the frontiersmen themselves, Madison's measure was prudent and desirable; for, if either the Indians or the Spaniards had been goaded into striking back by formal war, the blows would have fallen first and heaviest on these very settlers.
Yet the bill was stoutly resisted. It was said that the measure, instead of carrying out international law, violated it because ”such surrenders were unknown to the law of nations.”[735] And what became of Virginia's sacred Bill of Rights, if such a law as Madison proposed should be placed on the statute books, exclaimed the friends of the predatory backwoodsmen? Did not the Bill of Rights guarantee to every person ”speedy trial by an impartial jury of twelve men of his vicinage,” where he must ”be confronted with the accusers and witnesses,” said they?
But what did this Nationalist extradition bill do? It actually provided that men on Virginia soil should be delivered up for punishment to a foreign nation which knew not the divine right of trial by jury. As for trying men in Virginia courts and before Virginia juries for something they had done in the fastnesses of the far-away forests of the West and South, as Madison's bill required, how could the accused ”call for evidence in his favor”? And was not this ”sacred right” one of the foundation stones, quarried from Magna Charta, on which Virginia's ”liberties” had been built?[736] To be sure it was! Yet here was James Madison trying to blast it to fragments with his Nationalism!
So ran the arguments of those early American advocates of _laissez-faire_. Madison answered, as to the law of nations, by quoting Vattel, Grotius, and Puffendorf. As to the Bill of Rights, he pointed out that the individualist idealism by which the champions of the settlers interpreted this instrument ”would amount to a license for every aggression, and would sacrifice the peace of the whole community to the impunity of the worst members of it.”[737] Such were the conservative opinions of James Madison three years before he helped to frame the National Const.i.tution.
Madison saw, too,--shocking treason to ”liberty,”--”the necessity of a qualified interpretation of the bill of rights,”[738] if we were to maintain the slightest pretense of a National Government of any kind.
The debate lasted several days.[739] With all the weight of argument, justice, and even common prudence on the side of the measure, it certainly would have failed had not Patrick Henry come to the rescue of it with all the strength of his influence and oratory.[740]
The bill was so mangled in committee that it was made useless and it was restored only by amendment. Yet such was the opposition to it that even with Henry's powerful aid this was done only by the dangerous margin of four votes out of a total of seventy-eight.[741] The enemies of the bill mustered their strength overnight and, when the final vote came upon its pa.s.sage the next morning, came so near defeating it that it pa.s.sed by a majority of only one vote out of a total of eighty-seven.[742]
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