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which had been so freely expressed in the House of Commons, ordered Captain Fordyce, the commanding officer at the great bridge, though inferior in numbers, to storm the works of the provincials. Between daybreak and sunrise, this officer, at the head of about sixty grenadiers of the fourteenth regiment, who led the column of the enemy, advanced on the causeway, with fixed bayonets against the breastwork. The alarm was immediately given, and as is the prao tice with raw troops, the bravest of the Americans rushed to the works, where, unmindful of order, they kept up a tremendous fire on the front of the British column. Captain Fordyce, though received so warmly in front, and taken in flank, by a small body of men who were collected by Colonel Stevens, of the minute battalion, and posted on an eminence something more than one hundred yards to the left, marched up under this terrible fire with great intrepidity, until he fell dead within a few steps of the breastwork. The column immediately broke, but the British troops being covered in their retreat by the artillery of the fort, were not pursued. In this ill-judged attack, every grenadier is said to have been killed or wounded, while the Americans did not lose a single man. The next night the fort was evacuated. The provincial troops proceeded to Norfolk, and Lord Dunmore found it necessary to take refuge on board his vessels.*
In July, 1776, Mr. Marshall was appointed first lieutenant in the eleventh regiment of the continental troops, and in the following winter, he marched to the middle States, and joined the army of Washington. In the spring of 1777, he was promoted to the rank of captain, and remained in that character, in active service, until the close of the year 1779. He was present at the battles of Germantown, Brandywine, and Monmouth, and was one of that heroic band of patriots who suffered the severities of the memorable winter at Valley Forge. During this period he often acted as deputy judge advocate, a position which gave him an extensive ao quaintance and weighty influence with the officers of the army, by whom he was greatly beloved and respected. “It was during his performance of the duties of judge advocate," says Judge Story, “that he, for the first time I believe, became personally acquainted with General Washington, and I am sure, with colonel, afterwards General Hamilton; for both of whom, it needs scarcely to be said, he always entertained the deepest respect, and whose unreserved friendship, at a subsequent period of his life, he familiarly enjoyed.”
Late in the year 1779, Mr. Marshall returned to Virginia, and commenced a course of study in William and Mary College, attending the law lectures of Chancellor Wythe, and the lectures on natural philosophy of President (afterwards Bishop) Madison. In 1780'he received a license to practise law; and soon after returned to the army, where he continued actively engaged until after Arnold's invasion of Virginia. He now resigned his commission and returned to the prosecution of his professional studies; and on the reopening of the courts of law, after the surrender at Yorktown, commenced practice, in which he soon obtained a high and honorable dis tinction. In 1782 he was a member of the Virginia legislature, and during the same year occupied a seat in the State executive council. In January, 1783, he married Miss Ambler, of Richmond, to which place he removed shortly after, and established his permanent residence.
The duties of his profession, already very arduous, and rapidly increasing, impelled him to resign his position in the State council. But he did not long remain out of public life, being almost immediately elected to the Legislature to represent his native county. Here he continued two years, when he was again returned to the same body from the county of Richmond. It was in this position that he was disciplined to the “thorough mastery of the true principles of free government." “My immediate entrance into the State legislature,” said he, in a letter written in the latter years of his life, "opened to my view the causes which had been chiefly instrumental in augmenting these sufferings (meaning of the army]; and the general tendency of state politics convinced me that no safe and permanent remedy could be found, but in a more efficient and better organized general government.”
In the great contest which arose, after the conclusion of the war, between the advocates of an efficient general government and the supporters of the State sovereignties, Virginia took a
* Life of George Washington, by John Marshall, vol. 2, page 371.
prominent part. In her legislative halls, the question, “whether the Union ought to be continued or dissolved by a total separation of the States, was freely discussed, and either side of it was maintained, not only without reproach, but with uncompromising fearlessness of consequences. Here Mr. Marshall, side by side with Madison, stood forth on all occasions an inflexible and enlightened advocate for union. It was here that he learned and practised those profound doctrines of rational, limited, constitutional liberty, from which he never shrunk, and to which he resolutely adhered to the end of his life. * * * It was here that he learned to love the Union with a supreme, unconquerable love—a love which was never cooled by neglect, or alienated by disappointment: a love which survived the trials of adversity, and the still more dangerous trials of prosperity: a love which faltered not, fainted not, wearied not on this side the grave.” In 1788, Mr. Marshall was a member of the Virginia Convention, assembled for the ratification of the Federal Constitution. In the debates of that body he took an active part. His speeches on the power of taxation, the powers of the judiciary, and that on the power over the militia, evince many of those sagacious and statesmanlike views which characterized his subsequent life. After the adoption of the constitution, he was elected to the State legislature, where he remained until 1792, when he once more returned to the practice of his profession, and soon became engaged in many of the leading causes in the State and national tribunals. Again in 1795, he was returned to the State legislature, where he greatly distinguished himself by his ability and power in the discussions relating to the treaty negotiated by Mr. Jay. During the winter of 1796, he visited Philadelphia, to argue an important case before the United States Supreme Court. It was during this sojourn that he became acquainted with many of the most celebrated men of the northern States, who were then in Congress. “I then became acquainted,” said he, “with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick, of Massachusetts, Mr. Wadsworth, of Connecticut, and Mr. King, of New York. I was delighted with these gentlemen. The particular subject, the British Treaty, which introduced me to their notice, was at that time so interesting, and a Virginian who supported, with any sort of reputation, the measures of the government, was such a rara aris, that I was received by them all with a degree of kindness which I had not anticipated.” About this time he was invited by Washington to accept the office of Attorney General of the United States, but he declined, on account of its interference with the practice of his profession. He was offered the position of Minister to France, on the recall of Mr. Monroe. This he also declined. “I then thought,” said he, “my determination to remain at the bar unalterable. My situation at the bar appeared to me to be more independent, and not less honorable than any other; my preference for it was decided.” General Pinckney, of South Carolina, who was subsequently appointed to succeed Mr. Monroe, being refused an audience at the Court of France, Mr. Adams, (who was then President,) desirous of an amicable and honorable adjustment of the differences between that nation and his own country, in 1797, appointed Mr. Marshall, Mr. Gerry, and General Pinckney, envoys extraordinary to France; but the envoys were not accredited, and in the summer of 1798, Mr. Marshall returned to the United States. The next year, yielding to the wishes of General Washington, he consented to become a candidate, and after a spirited political contest, was elected to Congress. His services in the memorable session of the winter of 1799 and 1800, were zealous and untiring. His masterly speech in the case of Thomas Nash alias Jonathan Robbins, delivered during this session, will be found in the subsequent pages of this volume. In May, 1800, he was appointed by President Adams to the office of Secretary of War, but before he entered upon the duties of that station, he was transferred to the head of the department of State. On the resignation of Chief Justice Ellsworth, in 1801, Mr. Marshall was appointed as his successor, and continued on the bench of the Supreme Court of the United States, “with increasing reputation and unsullied dignity,” until his death, on the sixth day of July, 1835. That event created the deepest regret in the public mind throughout the country. Eulogies upon his character and judicial services were pronounced by the most eminent members of the
profession to which he belonged, all of which evince the highest sentiments of respect and admiration. One of the most carefully prepared and elaborate of these was a discourse delivered at the request of the Suffolk Bar, at Boston, by Mr. Justice Story, which has been freely used in the preparation of this sketch, and to which the reader is referred, as the best and most complete estimate of his life, character, and services.
THE FEDERAL CONSTITUTION.*
Mr. Marshall delivered the following speech, gentleman, Mr. Henry, has said.* He has exin the Virginia Convention for the ratification patiated on the necessity of a due attention to of the Federal Constitution, on the tenth of ciples, from which a free people ought never to
certain maxims—to certain fundamental prinJune, 1788, the preamble and the first and depart. I concur with him in the propriety of second section of the first article of the con- the observance of such maxims. They are nestitution being under consideration :
cessary in any government, but more essential
to a democracy than to any other. What are Mr. Chairman: I conceive that the object the favorite maxims of democracy? A strict of the discussion now before us is, whether de observance of justice and public faith, and a mocracy or despotism be most eligible. I am steady adherence to virtue." These, sir, are the sure that those who framed the system, sub- principles of a good government. No mischief, mitted to our investigation, and those who now
no misfortune, ought to deter us from a strict support it, intend the establishment and secu- observance of justice and public faith. Would rity of the former. The supporters of the con: served under the present government! Had
to Heaven that these principles had been obstitution claim the title of being firm friends of this been the case, the friends of liberty would the liberty and the rights of mankind. They say that they consider it as the best means of not be so willing now to part with it. Can we protecting liberty. We, sir, idolize democracy: maxims ? Can we pretend to the enjoyment
boast that our government is founded on these Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any told that a man has been, by an act of Assem
of political freedom or security, when we are monarchy, because we are convinced that it has a greater tendency to secure our liberty bly, struck out of existence without a trial by and promote our happiness. We admire it, be jury, without examination, without being concause we think it a well regulated democracy:
fronted with his accusers and witnesses, withit is recommended to the good people of this out the benefits of the law of the land? Where country: they are, through us, to declare whe- is our safety, when we are told that this act ther it be such a plan of government as will was justifiable, because the person was not a
Socrates ? What has become of the worthy establish and secure their freedom. Permit me to attend to what the honorable member's maxims ? Is this one of them? Shail
it be a maxim that a man shall be deprived of
his life without the benefit of law ? Shall such * So general was the conviction that the public welfare
a deprivation of life be justified by answering, required a government of more extensive powers than that the man's life was not taken secundum those vested in the General Government by the Articles artem, because he was a bad man? Shall it be of Confederation, that in May, 1787, a convention composed a maxim that government ought not to be emof delegates from all the states in the Union, with the powered to protect virtue? exception of Rhode Island, Assembled at Philadelphia, to The honorable member, after attempting to tako the subject into consideration. This convention con- vindicate that tyrannical legislative act to which tinued its sessions with closed doors, nntil the seventeenth I have been alluding, proceeded to take a view of tho following September, when the Federal Constitution of the dangers to which this country is exposed. was promulgated. The convention resolved, “ That the He told us that the principal danger arose from Constitution be laid before the United States, in Congress a government which, if adopted, would give assembled, and that it is the opinion of this convention that away the Mississippi. I intended to proceed it should afterwards bo sabınitted to a convention of dele- regularly, by attending to the clause under degates, chosen in each stato by the people thereof, for their bate; but I must reply to some observations assent and ratification;" and in conformity with this re- which were dwelt upon to make impressions on commendation, Congress, on the twenty-eighth of the samo month, passed a resolution directing that the Constitution table. Have we no navigation in, or do we
our minds unfavorable to the plan upon the several States of the Union. The conventions subsequently assembled, and the expediency of adopting the Constitution See the speeches of Patrick Henry, at pages 18-39 of the was ably and eloquently discussed.
should be submitted to conventions to be assembled in the
first volume of this work.
derive no benefit from, the Mississippi ? How shall we retain it? By retaining that weak government which has hitherto kept it from us? Is it thus that we shall secure that navigation? Give the government the power of retaining it, and then we may hope to derive actual advantages from it. Till we do this, we cannot expect that a government which hitherto fias not been able to protect it, will have the power to do it hereafter. Have we attended too long to consider whether this government would be able to protect us? Shall we wait for further proofs of its inefficacy? If on mature consideration, the constitution will be found to be perfectly right on the subject of treaties, and containing no danger of losing that navigation, will he still object? Will he object because eight States are unwilling to part with it? This is no good ground of objection.
*~ He then stated the necessity and probability
of obtaining amendments. This we ought to postpone until we come to that clause, and make up our minds whether there be anything unsafe in this system. He conceived it impossible to obtain amendments after adopting it. If he was right, does not his own argument prove that in his own conception, previous amendments cannot be had 7 for, sir, if subsequent amendments cannot be obtained, shall we get amendments before we ratify The reasons against the latter do not apply against the former. There are in this State, and in every State in the Union, many who are decided enemies of the Union. Reflect on the probable conduct of such men. What will they do? They will bring amendments which are local in their nature, and which they know will not be accepted. What security have we that other States will not do the same. We are told that many in the States were violently opposed to it. They are more mindful of local interests. They will never propose such amendments as they think would be obtained. Disunion will be their object. This will be attained by the proposal of unreasonable amendments. This, sir, though a strong cause, is not the only one that will militate against previous amendments. Look at the comparative temper of this country now, and when the late Federal Convention met. We had no idea then of any particular system. The formation of the most perfect plan was our object and wish. It was imagined that the States would accede to, and be pleased with, the proposition that would be made them. Consider the violence of opinions, the prejudices and animosities which have been since imbibed. Will not these operate greatly against mutual concessions, or a friendly concurrence? This will, however, be taken up more properly another time. He says, we wish to have a strong, energetic, powerful government. We contend for a well-regulated democracy. He insinuates that the power of the government has been enlarged by the convention, and that we may apprehend it will be enlarged by others. The convention did not, in fact, assume any power.
They have proposed to our consideration, a scheme of government which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several gentlemen already demonstrated that the convention did not exceed their powers? But the Congress have the power of making bad laws, it seems. The Senate, with the President, he informs us, may make a treaty which shall be disadvantageous to us; and that, if they be not good men, it will not be a good constitution. I shall ask the worthy member only, if the people at large, and they alone, ought to make laws and treaties. Has any man this in contemplation ? You cannot exercise the powers of government personally yourselves. You must trust to agents. If so, will you dispute giving them the power of acting for you, from an existing possibility that they may abuse it? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, because there is a possibility of their abusing it, you can have no government; for the power of doing good is inseparable from that of doing some evil.
We may derive from Holland lessons very beneficial to ourselves. Happy that country which can avail itself of the misfortunes of others—which can gain knowledge from that source without fatal experience! What has produced the late disturbances in that country? The want of such a government as is on your table, and having in some measure, such a one as you are about to part with. The want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties, and inviting foreign powers to interpose in their disputes, have subjected them to all the mischiefs which have interrupted their harmony. I cannot express my astonishment at his high-colored eulogium on such a government. Can any thing be more dissimilar than the relation between the British government and the colonies, and the relation between Congress and the States? We were not represented in Parliament. Here we are represented. Arguments which prove the impropriety of being taxed by Britain, do not hold against the exercise of taxation by Congress.
Let me pay attention to the observation of the gentleman who was last up, that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this House. is power I think essentially necessary; for without it there will be no efficiency in the government. We have had a sufficient demonstration of the vanity of depending on requisitions. How, then, can the general government exist without this power? The possibility of its being abused is urged as an argument against its expediency. To very little purpose did Virginia discover the defects
in the old system; to little purpose, indeed, did | vite them by our weakness to attack us, will she propose improvements; and to no purpose they not do it? If we add debility to our is this plan constructed for the promotion of present situation, a partition of America may our happiness, if we refuse it now, because it take place. is possible that it may be abused. The con It is, then, necessary to give the government federation has nominal powers, but no means that power, in time of peace, which the necesto carry them into effect. If a system of gov-sity of war will render indispensable, or else ernment were devised by more than human in- we shall be attacked unprepared. The experitelligence, it would not be effectual if the means ence of the world, a knowledge of human nawere not adequate to the power. All delegated ture, and our own particular experience, will powers are liable to be abused. Arguments confirm this truth. When danger shall come drawn from this source go in direct opposition upon us, may we not do what we were on the to the government, and in recommendation of point of doing once already—that is, appoint a anarchy. The friends of the constitution are dictator? Were those who are now friends to as tenacious of liberty as its enemies. They this constitution less active in the defence of wish to give no power that will endanger it. liberty, on that trying occasion, than those who They wish to give the government powers to oppose it? When foreign dangers come, may secure and protect it. Our inquiry here must not the fear of immediate destruction, by be, whether the power of taxation be necessary foreign enemies, impel us take a most dangerous to perform the objects of the constitution, and step? Where, then, will be our safety? We whether it be safe, and as well guarded as hu- may now regulate and frame a plan that will man wisdom can do it. What are the objects enable us to repel attacks, and render a recurof the national government? To protect the rence to dangerous expedients unnecessary. If United States, and to promote the general wel we be prepared to defend ourselves, there will fare. Protection, in time of war, is one of its be little inducement to attack us. But if we principal objects. Until mankind shall cease defer giving the necessary power to the general to have ambition and avarice, wars will arise. government till the moment of danger arrives,
The prosperity and happiness of the people we shall give it then, and wii) an unsparing depend on the performance of these great and hand. America, like other naticis, may be eximportant duties of the general government. posed to war. The propriety of giving this Can these duties be performed by one State ? power will be proved by the history of the Can one State protect us, and promote our hap- world, and particularly of modern republics. piness? The honorable gentleman who has I defy you to produce a single instance where gone before me, Governor Randolph, has shown requisitions on several individual States, comthat Virginia cannot do these things. * How, posing a confederacy, have been honestly comthen, can they be done? By the national gov- plied with. Did gentlemen expect to see such ernment only. Shall we refuse to give it power punctuality complied with in America ? If to do them? We are answered, that the they did, our own experience shows the conpowers may be abused; that, though the Con- trary. gress may promote our happiness, yet they may We are told that the confederation carried prostitute their powers to destroy our liberties. us through the war. Had not the enthusiasm This goes to the destruction of all confidence in of liberty inspired us with unanimity, that sysagents. Would you believe that men who had tem would never have carried us through it. merited your highest confidence would deceive It would have been much sooner terminated you? Would you trust them again after one had that government been possessed of due endeception? Why then hesitate to trust the ergy. The inability of Congress, and the failgeneral government? The object of our inquiry ure of States to comply with the constitutional is, Is the power necessary, and is it guarded? requisitions, rendered our resistance less effiThere must be men and money to protect us. cient than it might have been. The weakness How are armies to be raised? Must we not of that government caused troops to be against have money for that purpose? But the honor- us which ought to have been on our side, and able gentleman says that we need not be afraid prevented all resources of the community from
Look at history, which has been so being called at once into action. The extreme often quoted. Look at the great volume of readiness of the people to make their utmost human nature. They will foretell you that a exertions to ward off solely the pressing danger, defenceless country cannot be secure. The supplied the place of requisitions. When they nature of man forbids us to conclude that we came solely to be depended on, their inutility are in no danger from war. The passions of was fully discovered. A bare sense of duty, or men stimulate them to avail themselves of the a regard to propriety, too feeble to induce weakness of others. The powers of Europe men to comply with obligations. We deceive are jealous of us. It is our interest to watch ourselves if we expect any efficacy from these. their conduct, and guard against them. They If requisitions will not avail
, the government must be pleased with our disunion. If we in- must have the sinews of war some other way.
Requisitions cannot be effectual. They will be See the speech of Governor Randolph, at page 165 of productive of delay, and will ultimately be inthe first volume of this work.
efficient. By direct taxation, the necessities