Marshall's vote against abrogating the power of the Governor of the Territory of the Mississippi to prorogue the Legislature;[1018] his vote for the resolution that the impertinence of a couple of young officers to John Randolph at the theater did not call "for the interposition of this House," on the ground of a breach of its privileges;[1019] his vote against that part of the Marine Corps Bill which provided that any officer, on the testimony of two witnesses, should be cashiered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on shore, offended against the person or property of any citizen,[1020] are fair examples of the level good sense with which Marshall invariably voted.
On the Marine Corps Bill a debate arose so suddenly and sharply that the reporter could not record it. Marshall's part in this encounter reveals his military bent of mind, the influence of his army experience, and his readiness in controversy, no less than his unemotional sanity and his disdain of popular favor if it could be secured only by sacrificing sound judgment. Marshall strenuously objected to subjecting the Marine Corps officers to trial by jury in the civil courts; he insisted that courts-martial were the only tribunals that could properly pass on their offenses. Thereupon, young John Randolph of Roanoke, whose pose at this particular time was extravagant hostility to everything military, promptly attacked him. The incident is thus described by one who witnessed the encounter "which was incidentally and unexpectedly started and as suddenly and warmly debated":—
"Your representative, Mr. Marshall, was the principal advocate for letting the power remain with courts martial and for withholding it from the courts of law. In the course of the debate there was some warmth and personality between him and Mr. Randolph, in consequence of the latter charging the former with adopting opinions, and using arguments, which went to sap the mode of trial by jury.
"Mr. Marshall, with leave, rose a third time, and exerted himself to repel and invalidate the deductions of Mr. Randolph, who also obtained permission, and defended the inference he had drawn, by stating that Mr. Marshall, in the affair of Robbins,[1021] had strenuously argued against the jurisdiction of the American courts, and had contended that it was altogether an Executive business; that in the present instance he strongly contended that the business ought not to be left with the civil tribunals, but that it ought to be transferred to military tribunals, and thus the trial by jury would be lessened and frittered away, and insensibly sapped, at one time by transferring the power to the Executive, and at another to the military departments; and in other ways, as occasions might present themselves. The debate happened so unexpectedly that the shorthand man did not take it down, although its manner, its matter, and its tendency, made it more deserving of preservation, than most that have taken place during the session."[1022]
Marshall's leadership in the fight of the Virginia Revolutionary officers for land grants from the National Government, strongly resisted by Gallatin and other Republican leaders, illustrates his unfailing support of his old comrades. Notwithstanding the Republican opposition, he was victorious by a vote of more than two to one.[1023]
But Marshall voted to rebuke a petition of "free men of color" to revive the slave-trade laws, the fugitive from justice laws, and to take "such measures as shall in due course" free the slaves.[1024] The debate over this resolution is important, not only as explaining the vote of Marshall, who came from Virginia and was himself a slaveholder, as were Washington and Jefferson, but also as showing the mind of the country on slavery at that particular time.
Marshall's colleague, General Lee, said that the petition "contained sentiments ... highly improper ... to encourage."[1025] John Rutledge of South Carolina exclaimed: "They now tell the House these people are in slavery—I thank God they are! if they were not, dreadful would be the consequences.... Some of the states would never have adopted the Federal form of government if it had not been secured to them that Congress never would legislate on the subject of slavery."[1026]
Harrison Gray Otis of Massachusetts was much disgusted by the resolution, whose signers "were incapable of writing their names or of reading the petitions"; he "thought those who did not possess that species of property [slaves] had better leave the regulation of it to those who were cursed with it." John Brown of Rhode Island "considered [slaves] as much personal property as a farm or a ship.... We want money; we want a navy; we ought therefore to use the means to obtain it.... Why should we see Great Britain getting all the slave trade to themselves; why may not our country be enriched by that lucrative traffic?"[1027] Gabriel Christie of Maryland hoped the petition would "go under the table instead of upon it."[1028] Mr. Jones of Georgia thought that the slaves "have been immensely benefited by coming amongst us."[1029]
Finally, after two days of debate, in which the cause of freedom for the blacks was almost unsupported, Samuel Goode of Virginia moved: "That the parts of the said petition which invite Congress to legislate upon subjects from which the General Government is precluded by the Constitution have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this House."[1030] On this motion, every member but one, including John Marshall, voted aye. George Thacher, a Congregationalist preacher from Massachusetts, alone voted nay.[1031] Such, in general, and in spite of numerous humanitarian efforts against slavery, was American sentiment on that subject at the dawn of the nineteenth century.[1032]
Five subjects of critical and historic importance came before the session: the Federalists' Disputed Elections Bill; the Republican attack on the provisional army raised for the probable emergency of war with France; the Republican attack on the Executive power in the Jonathan Robins case; the Republican onslaught upon the Alien and Sedition Laws; and the National Bankruptcy Bill. In each of these Marshall took a leading and determining part.