The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

by Albert J. Beveridge

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 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]

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 assessment 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 title 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 assessment 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 passed, preventing the recovery of these debts in the courts, sequestering the property and even forfeiting the estates owned by British subjects in Virginia; and a maze of acts, repealing and then reviving the statutes that prevented payment, were passed after the war had ended.[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 passed 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 Assembly, 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 Assembly 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.