CHAPTER XI

THE SUPREME DEBATE

There will undoubtedly be a greater weight of abilities against

the adoption in this convention than in any other state.

(Washington.)

What are the objects of the National Government? To protect the

United States and to promote the general welfare. (Marshall, in

his first debate.)

Now appeared the practical political managers from other States. From

Saturday afternoon until Monday morning there was great activity in both

camps. The politicians of each side met in secret conference to plan the

operations of the coming week and to devise ways and means of getting

votes. For the Constitutionalists, Gouverneur Morris was on the ground

from New York;[1216] Robert Morris and probably James Wilson, both from

Philadelphia, had been in Virginia at the time of the elections and the

former remained for the Convention.[1217] During the second week the

Philadelphia financier writes Gates from Richmond, lamenting "the

depredations on my purse," but "inclined to think the Constitution will

be adopted by Virginia."[1218]

For the opposition, Oswald, publisher of the "Independent Gazetteer,"

came on from Philadelphia and arrived in Richmond at the close of the

first week's debate. He at once went into secret conference with Henry,

Mason, and the other Anti-Constitutionalist leaders. Madison reports to

Hamilton that "Oswald of Phil^a came here on Saturday; and he has closet

interviews with the leaders of the opposition."[1219] By the same mail

Grayson advises the general Anti-Constitutionalist headquarters in New

York that he is "sorry ... that our affairs in the convention are

suspended by a hair." Randolph's conduct "has not injured us," writes

Grayson, thus proving how poorly the Anti-Constitutionalists estimated

the real situation. But they were practical enough to know that "there

are seven or eight dubious characters whose opinions are not known" and

upon whose decisions the fate of the Constitution "will ultimately

depend." Grayson cautions Lamb not to let this get into the

newspapers.[1220]

Just what was devised and decided by the leaders of both sides in these

behind-the-doors meetings and what methods were used outside the

Convention hall to influence votes, there is no means of learning

exactly; though "the opposition" committee seems to have been occupied

chiefly in drawing amendments.[1221] But the frequent references,

particularly of the Constitutionalist speakers on the floor, to improper

conduct of their adversaries "out of doors" show that both sides were

using every means known to the politics of the day to secure support. In

the debate itself Henry certainly was making headway.[1222]

On Monday, Henry and Mason made a dramatic entrance into the Convention

hall. Walking arm in arm from their quarters in "The Swan,"[1223] they

stopped on the steps at the doors of the New Academy and conferred

earnestly for some minutes; so great was the throng that the two

Anti-Constitutionalist chieftains made their way to their seats with

great difficulty.[1224] When Henry rose to go on with his speech, the

plan decided on during Sunday quickly was revealed. The great prize for

which both sides now were fighting was the votes from Kentucky.[1225]

Henry held up before them the near forfeiture to the Spanish of our

right to navigate the Mississippi.[1226] This, he said, was the work of

seven Northern States; but under the Confederation they had been

thwarted in their fell purpose by six Southern States; and the

Mississippi still remained our own. But if the Constitution was adopted,

what would happen? The Senate would be controlled by those same Northern

States that had nearly succeeded in surrendering the great waterway and

the West and South would surely be deprived of that invaluable

commercial outlet. He asked the members of Congress who were in the

Convention to tell the facts about the Mississippi business. Jefferson,

he avowed, had counseled Virginia to "reject this government."[1227]

Henry answered the Constitutionalists' prophecy of foreign war,

ridiculed danger from the Indians, proved that the Constitution would

not pay Virginia's debts; and, in characteristic fashion, ranged at

large over the field. The Constitution, he asserted, would "operate like

an ambuscade ... destroy the state governments ... swallow the liberties

of the people without" warning. "How are our debts to be discharged

unless taxes are increased?" asked he; and demonstrated that under the

Constitution taxes surely would be made heavier. Time and again he

warned the Convention against the loss of liberty: "When the deprivation

of our liberty was attempted, what did ... the genius of Virginia tell

us? '_Sell all and purchase liberty!_'... Republican maxims,... and the

genius of Virginia landed you safe on the shore of freedom."

Once more he praised the British form of government--an oversight which

a hawk-eyed young member of the Convention, John Marshall, was soon to

use against him. Henry painted in darkest colors the secrecy of the

Federal Convention. "_Look at us--hear our transactions!_--if this had

been the language of the Federal Convention," there would have been no

Constitution, he asserted, and with entire accuracy. Yet, the

Constitution itself authorized Congress to keep its proceedings as

secret as those of the Constitution's makers had been kept: "The

transactions of Congress," said Henry, "may be concealed a century from

the public."[1228]

Seizing Madison's description of the new Government as partly National

and partly Federal, Henry brought to bear all his power of satire. He

was "amused" at Madison's "treatise of political anatomy.... In the

brain it is national; the stamina are federal; some limbs are federal,

others national." Absurd! The truth was, said Henry, that the

Constitution provided for "a great consolidation of government." Why not

abolish Virginia's Legislature and be done with it? This National

Government would do what it liked with Virginia.

As to the plan of ratifying first and amending afterwards, Henry

declared himself "at a loss what to say. You agree to bind yourselves

hand and foot--for the sake of what? Of being unbound. You go into a

dungeon--for what? To get out.... My anxiety and fears are great lest

America by the adoption of this system [the Constitution], should be

cast into a fathomless bottom."

Tradition has it that during this speech Henry, having frozen his

hearers' blood by a terrific description of lost "liberty," with one of

his sudden turns set both Convention and spectators into roars of

laughter by remarking with a grimace, and as an aside, "why, _they'll

free your niggers_."[1229] And then, with one of those lightning changes

of genius, which Henry alone could make, he solemnly exclaimed, "I look

on that paper [the Constitution] as the most fatal plan that could

possibly be conceived to enslave a free people."[1230]

Lee, in reply, spoke of the lobbying going on outside the Convention.

"Much is said by gentlemen out of doors," exclaimed Lee; "they ought to

urge all their objections here." He taunted Henry, who had praised the

militia, with not having been himself a soldier. "I saw what the

honorable gentleman did not see," cried Lee, "our men fight with the

troops of that King whom he so much admires."[1231]

When the hot-blooded young soldier had finished his aggressive speech,

Randolph could no longer restrain himself. Henry's bold challenge of

Randolph's change of front had cut that proud and sensitive nature to

the heart. "I disdain," thundered he, "his aspersions and his

insinuations." They were "warranted by no principle of parliamentary

decency, nor compatible with the least shadow of friendship; and if our

friendship must fall, _let it fall, like Lucifer, never to rise again_!"

It was not to answer Henry that he spoke, snarled Randolph, "but to

satisfy this respectable audience." Randolph then explained his conduct,

reading part of the letter[1232] that had caused all the trouble,

and dramatically throwing the letter on the clerk's table, cried

"that it might lie there for _the inspection of the curious and

malicious_."[1233] Randolph spoke for the remainder of the day and

consumed most of the next forenoon.[1234]

No soldier had yet spoken for the Anti-Constitutionalists; and it

perhaps was Lee's fling at Henry that now called a Revolutionary officer

to his feet against the Constitution. A tall, stiff, raw-boned young man

of thirty years arose. Poorly educated, slow in his mental

processes,[1235] James Monroe made a long, dull, and cloudy speech,

finally declaring of the Constitution, "I think it a dangerous

government"; and asking "why ... this haste--this wild precipitation?"

Long as Monroe's speech was, he reminded the Convention that he had "not

yet said all that I wish upon the subject" and that he would return to

the charge later on.[1236]

Monroe did not help or hurt either side except, perhaps, by showing the

members that all the Revolutionary veterans were not for the

Constitution. Neither members nor spectators paid much attention to him,

though this was no reflection on Monroe, for the Convention did not

listen with patience to many speakers except Henry. When Henry spoke,

every member was in his seat and the galleries were packed. But only the

most picturesque of the other speakers could hold the audience for

longer than half an hour; generally members walked about and the

spectators were absent except when Henry took the floor.[1237]

As usual, the Constitutionalists were ready with their counter-stroke.

Wythe in the chair recognized a tall, ungainly young man of thirty-two.

He was badly dressed in a loose, summer costume, and his blazing black

eyes and unkempt raven hair made him look more like a poet or an artist

than a lawyer or statesman.[1238] He had bought a new coat the day the

Convention met; but it was a most inexpensive addition to his raiment,

for it cost but one pound, Virginia currency, then greatly

depreciated.[1239] He probably was the best liked of all the members of

the Convention. Sociable to extreme good-fellowship, "his habits," says

Grigsby, "were convivial almost to excess";[1240] and it is more than

likely that, considering the times, these habits in his intimate social

intercourse with his fellow members helped to get more votes than his

arguments on the floor, of which he now was to make the first.[1241] His

four years' record as a soldier was as bright and clean as that of any

man from any State who had fought under Washington.

So when John Marshall began to speak, he was listened to with the ears

of affection; and any point the opposition had made by the fact that

Monroe the soldier had spoken against the Constitution was turned by

Marshall's appearance even before he had uttered a word. The young

lawyer was also accounted an "orator" at this time,[1242] a fact which

added to the interest of his fellow members in his speech.

The question, Marshall said, was "whether democracy or despotism be most

eligible."[1243] He was sure that the framers and supporters of the

Constitution "intend the establishment and security of the former"; they

are "firm friends of the liberty and the rights of mankind." That was

why they were for the Constitution. "We, sir, idolize democracy." The

Constitution was, said he, the "best means of protecting liberty." The

opposition had praised monarchy, but, deftly avowed Marshall, "We prefer

this system to any monarchy"; for it provides for "a well regulated

democracy."

He agreed with Henry that maxims should be observed; they were

especially "essential to a democracy." But, "what are the ... maxims of

democracy?... A strict observance of justice and public faith, and a

steady adherence to virtue. These, Sir, are the principles of a good

government,"[1244] declared the young Richmond Constitutionalist.

"No mischief, no misfortune, ought to deter us from a strict observance

of justice and public faith," cried Marshall. "Would to Heaven," he

exclaimed, "that these principles had been observed under the present

government [the Confederation]." He was thinking now of his experience

in the Legislature and appealing to the honesty of the Convention. If

the principles of justice and good faith had been observed, continued

he, "the friends of liberty would not be so willing now to part with it

[the Confederation]."

Could Virginians themselves boast that their own Government was based on

justice? "Can we pretend to the enjoyment of political freedom or

security, when we are told that a man has been, by an act of Assembly,

struck out of existence without a trial by jury, without examination,

without being confronted with his accusers and witnesses, without the

benefits of the law of the land?"[1245] Skillfully he turned against

Henry the latter's excuse for the execution of Philips, and dramatically

asked: "Where is our safety, when we are told that this act was

justifiable because the person was not a Socrates?... Shall it be a

maxim that a man shall be deprived of his life without the benefit of

the law?"

As to the navigation of the Mississippi, he asked: "How shall we retain

it? By retaining that weak government which has hitherto kept it from

us?" No, exclaimed Marshall, but by a Government with "the power of

retaining it." Such a Government, he pointed out, was that proposed in

the Constitution. Here again the Constitutionalist managers displayed

their skill. Marshall was the best man they could have chosen to appeal

to the Kentucky members on the Mississippi question. His father, mother,

and his family were now living in Kentucky, and his relative, Humphrey

Marshall, was a member of the Convention from that district.[1246]

Marshall himself was the legislative agent of the District of Kentucky

in Richmond. The development of the West became a vital purpose with

John Marshall, strengthening with the years; and this was a real force

in the growth of his views on Nationality.[1247]

Henry's own argument, that amendments could not be had after adoption,

proved, said Marshall, that they could not be had before. In all the

States, particularly in Virginia, there were, he charged, "many who are

decided enemies of the Union." These were inspired by "local interests,"

their object being "disunion." They would not propose amendments that

were similar or that all could agree upon. When the Federal Convention

met, said Marshall, "we had no idea then of any particular system. The

formation of the most perfect plan was our object and wish"; and, "it

was imagined" that the States would with pleasure accept that

Convention's work. But "consider the violence of opinions, the

prejudices and animosities which have been since imbibed"; and how

greatly they "operate against mutual concessions."

Marshall reiterated that what the Constitutionalists were fighting for

was "a well-regulated democracy." Could the people themselves make

treaties, enact laws, or administer the Government? Of course not. They

must do such things through agents. And, inquired he, how could these

agents act for the people if they did not have power to do so? That the

people's agents might abuse power was no argument against giving it, for

"the power of doing good is inseparable from that of doing some evil."

If power were not given because it might be misused, "you can have no

government." Thus Marshall stated that principle which he was to

magnify from the Supreme Bench years later.

"Happy that country," exclaimed the young orator, "which can avail

itself of the misfortunes of others ... without fatal experience!"

Marshall cited Holland. The woes of that country were caused, said he,

by "the want of proper powers in the government, the consequent deranged

and relaxed administration, the violence of contending parties"--in

short, by such a government, or rather absence of government, as America

then had under the Confederation. If Holland had had such a government

as the Constitution proposed, she would not be in her present sorry

plight. Marshall was amused at Henry's "high-colored eulogium on such a

government."

There was no analogy, argued he, between "the British government and the

colonies, and the relation between Congress and the states. We _were

not_ represented in Parliament. Here [under the Constitution] we are

represented." So the arguments against British taxation "do not hold

against the exercise of taxation by Congress." The power of taxation by

Congress to which Henry objected was "essentially necessary; for without

it there will be no efficiency in the government." That requisitions on

the States could not be depended on had been demonstrated by experience,

he declared; the power of direct taxation was, therefore, necessary to

the very existence of the National Government.

"The possibility of its being abused is urged as an argument against

its expediency"; but, said Marshall, such arguments would prevent all

government and result in anarchy. "All delegated powers are liable to be

abused." The question was, whether the taxing power was "necessary to

perform the objects of the Constitution?... What are the objects of

national government? To protect the United States, and to promote the

general welfare. Protection, in time of war, is one of its principal

objects. Until mankind shall cease to have ambition and avarice, wars

will arise."

Experience had shown, said Marshall, that one State could not protect

the people or promote general welfare. "By the national government only"

could these things be done; "shall we refuse to give it power to do

them?" He scorned the assertion "that we need not be afraid of war. Look

at history," he exclaimed, "look at the great volume of human nature.

They will foretell you that a defenseless country cannot be secure. The

nature of men forbids us to conclude that we are in no danger from war.

The passions of men stimulate them to avail themselves of the weakness

of others. The powers of Europe are jealous of us. It is our interest to

watch their conduct and guard against them. They must be pleased with

our disunion. If we invite them by our weakness to attack us, will they

not do it? If we add debility to our present situation, a partition of

America may take place."

The power of National taxation, therefore, was necessary, Marshall

asserted. "There must be men and money to protect us. How are armies to

be raised? Must we not have money for that purpose?" If so, "it is,

then, necessary to give the government that power in time of peace,

which the necessity of war will render indispensable, or else we shall

be attacked unprepared." History, human nature, and "our own particular

experience, will confirm this truth." If danger should come upon us

without power to meet it, we might resort to a dictatorship; we once

were on the point of doing that very thing, said he--and even Henry and

Mason did not question this appeal of Marshall to the common knowledge

of all members of the Convention.

"Were those who are now friends to this Constitution less active in the

defense of liberty, on that trying occasion, than those who oppose it?"

scathingly asked Marshall. "We may now ... frame a plan that will enable

us to repel attacks, and render a recurrence to dangerous expedients

unnecessary. If we be prepared to defend ourselves, there will be little

inducement to attack us. But if we defer giving the necessary power to

the general government till the moment of danger arrives, we shall give

it then, and with an _unsparing hand_."

It was not true, asserted Marshall, that the Confederation carried us

through the Revolution; "had not the enthusiasm of liberty inspired us

with unanimity, that system would never have carried us through it." The

war would have been won much sooner "had that government been possessed

of due energy." The weakness of the Confederation and the conduct of the

States prolonged the war. Only "the extreme readiness of the people to

make their utmost exertions to ward off solely the pressing danger,

supplied the place of requisitions." But when this danger was over, the

requisition plan was no longer effective. "A bare sense of duty," said

he, "is too feeble to induce men to comply with obligations."

It was plain, then, Marshall pointed out, that "the government must have

the sinews of war some other way." That way was by direct taxation which

would supply "the necessities of government ... in a peaceable manner";

whereas "requisitions cannot be rendered efficient without a civil war."

What good would it do for Congress merely to remonstrate with the

States, as Henry had proposed, if we were at war with foreign enemies?

There was no danger that Congress, under the Constitution, would not lay

taxes justly, asserted Marshall; for if members of Congress laid unjust

taxes, the people would not reëlect them. Under the Constitution, they

were chosen by the same voters who elected members of the State

Legislature. These voters, said he, "have nothing to direct them in the

choice but their own good." Men thus elected would not abuse their power

because that would "militate against their own interest.... To procure

their reelection, it will be necessary for them to confer with the

people at large, and convince them that the taxes laid are for their own

good."

Henry had asked whether the adoption of the Constitution "would pay our

debts." "It will compel the states to pay their quotas," answered

Marshall. "Without this, Virginia will be unable to pay. Unless all the

states pay, she cannot.... Economy and industry are essential to our

happiness"; but the Confederation "takes away the incitements to

industry, by rendering property insecure and unprotected." The

Constitution, on the contrary, "will promote and encourage industry."

The statement of the Anti-Constitutionalists that the extent of the

country was too great for a strong National Government was untrue,

argued Marshall. Also, said he, this objection was from writers who

criticized those governments "where representation did not exist." But,

under the Constitution, representation would exist.

Answering Henry's objection, that there were no effective checks in the

Constitution, Marshall inquired, "What has become of his enthusiastic

eulogium on the American spirit?" There, declared Marshall, was the real

check and control. "In this country, there is no exclusive personal

stock of interest. The interest of the community is blended and

inseparably connected with that of the individual. When he promotes his

own, he promotes that of the community. When we consult the common good,

we consult our own." In such considerations were found the greatest

security from an improper exercise of power.

"Is not liberty secure with us, where the people hold all powers

in their own hands, and delegate them cautiously, for short

periods, to their servants, who are accountable for the smallest

mal-administration?... We are threatened with the loss of our liberties

by the possible abuse of power, notwithstanding the maxim that those who

give may take away. It is the people that give power, and can take it

back. What shall restrain them? They are the masters who give it, and of

whom their servants hold it."

Returning to the subject of amendments, "what," asked Marshall, "shall

restrain you from amending it, if, in trying it, amendments shall be

found necessary.... When experience shall show us any inconvenience, we

can then correct it.... If it be necessary to change government, let us

change that government which has been found to be defective." The

Constitution as it stood filled the great objects which everybody

desired--"union, safety against foreign enemies, and protection against

faction [party]--against what has been the destruction of all

republics."

He turned Henry's unhappy praise of the British Constitution into a

weapon of deadly attack upon the opposition. The proposed Constitution,

said Marshall, was far better than the British. "I ask you if your House

of Representatives would be better than it is, if a hundredth part of

the people were to elect a majority of them? If your senators were for

life, would they be more agreeable to you? If your President were not

accountable to you for his conduct,--if it were a constitutional maxim,

that he could do no wrong,--would you be safer than you are now? If you

can answer, Yes, to these questions, then adopt the British

constitution. If not, then, good as that government may be, this

[Constitution] is better."

Referring to "the confederacies of ancient and modern times" he said

that "they warn us to shun their calamities, and place in our government

those necessary powers, the want of which destroyed them." The ocean

does not protect us from war; "Sir," exclaimed Marshall, "the sea makes

them neighbors to us.... What dangers may we not apprehend to our

commerce! Does not our naval weakness invite an attack on our commerce?"

Henry had said "that our present exigencies are greater than they will

ever be again." But, asked he, "Who can penetrate into futurity?"

Henry's objection that the National Government, under the Constitution,

would "call forth the virtue and talents of America," to the

disadvantage of the States, was, Marshall said, the best guarantee that

the National Government would be wisely conducted. "Will our most

virtuous and able citizens wantonly attempt to destroy the liberty of

the people? Will the most virtuous act the most wickedly?" On the

contrary, "the virtue and talents of the members of the general

government will tend to the security instead of the destruction of our

liberty.... The power of direct taxation is essential to the existence

of the general government"; if not, the Constitution was unnecessary;

"for it imports not what system we have, unless it have the power of

protecting us in time of war."[1248]

This address to the Virginia Convention is of historic interest as John

Marshall's first recorded utterance on the Constitution of which he was

to become the greatest interpreter. Also, it is the first report of

Marshall's debating. The speech is not, solely on its merits,

remarkable. It does not equal the logic of Madison, the eloquence of

Randolph or Lee, or the brilliancy of Corbin. It lacks that close

sequence of reasoning which was Marshall's peculiar excellence. In

provoking fashion he breaks from one subject when it has been only

partly discussed and later returns to it. It is rhetorical also and

gives free rein to what was then styled "Marshall's eloquence."

The warp and woof of Marshall's address was woven from his military

experience; he forged iron arguments from the materials of his own

soldier life. Two thirds of his remarks were about the necessity of

providing against war. But the speech is notable as showing, in their

infancy, those views of government which, in the shaggy strength of

their maturity, were to be so influential on American destiny.[1249] It

also measures the growth of those ideas of government which the camp,

the march, and the battlefield had planted in his mind and heart. The

practical and immediate effect of the speech, which was what the

Constitutionalists, and perhaps Marshall himself, cared most about, was

to strengthen the soldier vote for the Constitution and to cause the

Kentucky members to suspend judgment on the Mississippi question.

[Illustration: _John Marshall_

_From a painting by Martin in the Robe Room of the U. S. Supreme

Court._]

For the Anti-Constitutionalists there now arose a big-statured old man

"elegantly arrayed in a rich suit of blue and buff, a long queue tied

with a black ribbon dangling from his full locks of snow, and his

long black boots encroaching on his knees."[1250] His ancestors had been

Virginians even before the infant colony had a House of Burgesses. When

Benjamin Harrison now spoke he represented the aristocracy of the Old

Dominion, and he launched all his influence against the Constitution.

For some reason he was laboring "under high excitement," and was almost

inaudible. He lauded the character of the Virginia Legislature, of which

he had been a member. The Constitution, insisted Harrison, "would

operate an infringement of the rights and liberties of the

people."[1251]

George Nicholas answered at length and with characteristic ability and

learning.[1252] But his speech was quite unnecessary, for what Harrison

had said amounted to nothing. On the morning of the ninth day of the

Convention Madison continued his masterful argument, two sections of

which he already had delivered.[1253] He went out of his way to praise

Marshall, who, said Madison, had "entered into the subject with a great

deal of ability."[1254]

Mason, replying on taxation, said that under the Constitution there were

"some land holders in this state who will have to pay twenty times as

much [taxes] as will be paid for all the land on which Philadelphia

stands." A National excise tax, he declared, "will carry the exciseman

to every farmer's house, who distills a little brandy where he may

search and ransack as he pleases." And what men, asked Mason, would be

in Congress from Virginia? Most of them would be "chosen ... from the

higher order of the people--from the great, the wealthy--the

_well-born_--the _well-born_, Mr. Chairman, that aristocratic idol--that

flattering idea--that _exotic_ plant which has been lately imported from

the ports of Great Britain, and planted in the luxurious soil of this

country."

It is significant to find the "well-born," wealthy, learned, and

cultivated Mason taking this tone. It shows that the common people's

dislike of a National Government was so intense that even George Mason

pandered to it. It was the fears, prejudices, and passions of the

multitude upon which the enemies of the Constitution chiefly depended;

and when Mason stooped to appeal to them, the sense of class distinction

must have been extreme. His statement also reveals the economic line of

cleavage between the friends and foes of the Constitution.

It was in this speech that Mason made his scathing "cat and Tory"

comparison. He knew those who were for the Constitution, "their

connections, their conduct, their political principles, and a number of

other circumstances. There are a great many wise and good men among

them"; but when he looked around and observed "who are the warmest and

most zealous friends to this new government," it made him "think of the

story of the cat transformed to a fine lady: forgetting her

transformation and happening to see a rat, she could not restrain

herself, but sprang upon it out of the chair."[1255]

Mason denounced Randolph for the latter's apostasy. "I know," said

Mason, "that he once saw as great danger in it as I do. What has

happened since this to alter his opinion?" Of course, the Confederation

was defective and reform needed; but the Constitution was no reform.

Without previous amendments, "we never can accede to it. Our duty to God

and to our posterity forbids it,"[1256] declared the venerable author of

Virginia's Bill of Rights and the Constitution of the State.

Henry Lee answered with fire and spirit, first rebuking "the irregular

and disorderly manner" in which the opposition had carried on the

debate. As to the cat story, Mason ought to know "that ridicule is not

the test of truth. Does he imagine that he who can raise the loudest

laugh is the soundest reasoner?" And Mason's "insinuations" about the

"well-born" being elected to Congress were "unwarrantable." He hoped

that "we shall hear no more of such groundless aspersions." Lee's speech

is valuable only as showing the rising spirit of anger which was

beginning to appear even in Virginia's well-conducted, parliamentary,

and courteous debate.[1257]

The Anti-Constitutionalists were now bringing all their guns into

action. The second Revolutionary soldier to speak for the opposition now

arose. William Grayson was almost as attractive a military figure as

Henry Lee himself. He had been educated at Oxford, had studied law in

the Inner Temple; and his style of speech was the polished result of

practice in the English political clubs, in Congress, and at the

bar.[1258] There were few men in America with more richly stored or

better trained minds. He was a precise Latinist and a caustic wit. When,

during the debate, some of the Constitutionalist speakers used Latin

phrases with a wrong pronunciation, Grayson, _sotto voce_, would correct

them. Once he remarked, loud enough to be heard by the other members

whom he set roaring with laughter, that he was not surprised that men

who were about to vote away the liberties of a living people should take

such liberties with a dead language.

Grayson now brought into action the heaviest battery the

Anti-Constitutionalists had in reserve. He did not blame Virginia's

delegates to the Federal Convention, said Grayson suavely. It was

unfortunate "that they did not do more for the general good of

America"; but "I do not criminate or suspect the principles on which

they acted." Of course, the Confederation had defects; but these were

"inseparable from the nature of such [Republican] governments." The

Constitutionalists had conjured up "phantoms and ideal dangers to lead

us into measures which will ... be the ruin of our country." He argued

that we were in no danger from our default in paying foreign loans; for

most European nations were friendly. "Loans from nations are not like

loans from private men. Nations lend money ... to one another from views

of national interest. France was willing to pluck the fairest feather

out of the British crown. This was her hope in aiding us"--a truth

evident to every man in the Convention. Such loans were habitually

delayed,--for instance, "the money which the Dutch borrowed of Henry IV

is not yet paid"; these same Dutch "passed Queen Elizabeth's loan at a

very considerable discount," and they "made their own terms with that

contemptible monarch," James I.

The people had no idea, asserted Grayson, that the Federal Convention

would do more than to give the National Government power to levy a five

per cent tariff, but since then "horrors have been greatly magnified."

He ridiculed Randolph's prophecy of war and calamity. According to

Randolph, "we shall be ruined and disunited forever, unless we adopt

this Constitution. Pennsylvania and Maryland are to fall upon us from

the north, like the Goths and Vandals of old; the Algerines, whose

flat-sided vessels never came farther than Madeira, are to fill the

Chesapeake with mighty fleets, and to attack us on our front; the

Indians are to invade us with numerous armies on our rear, in order to

convert our cleared lands into hunting-grounds; and the Carolinians,

from the South (mounted on alligators, I presume), are to come and

destroy our cornfields, and eat up our little children! These,

sir, are the mighty dangers which await us if we reject [the

Constitution]--dangers which are merely imaginary, and ludicrous

in the extreme!"

At bottom, thought Grayson, the controversy was between two

opinions--"the one that mankind can only be governed by force; the other

that they are capable" of governing themselves. Under the second theory,

which Grayson favored, all that was necessary was to "give congress the

regulation of commerce" and to "infuse new strength and spirit into the

state governments."

This, he remarked, was the proper course to pursue and to maintain "till

the American character be marked with some certain features. We are yet

too young to know what we are fit for." If this was not to be done and

we must have a government by force, then Grayson "would have a President

for life, choosing his successor at the same time; a Senate for life,

with the powers of the House of Lords; and a triennial House of

Representatives, with the powers of the House of Commons in

England."[1259] Consider the Judiciary. Suppose a man seized at the same

time under processes from Federal and State Courts: "Would they divide

the man in two, as Solomon directed the child to be divided who was

claimed by two women?"

Evidently Grayson was making a strong impression as the day grew to a

close, for Monroe, seconded by Henry, moved that the Convention adjourn

that Grayson might go on next day; and Madison, plainly nervous,

"insisted on going through the business regularly, according to the

resolution of the house." Grayson consumed most of the next forenoon,

displaying great learning, but sometimes drawing the most grotesque

conclusions. For example, he said that Congress might grant such

privileges that "the whole commerce of the United States may be

exclusively carried on by merchants residing within the seat of

government [now the District of Columbia] and those places of arms which

may be purchased of the state legislature." The Constitution did not

give equality of representation; for "the members of Delaware will

assist in laying a tax on our slaves, of which they will pay no part

whatever." In general, Grayson's conclusion was that "we have asked for

bread and they have given us a stone."[1260]

Pendleton answered. Henry's treatment of Randolph's unhappy reference to

the people as a "herd" seems to have had some effect; for Pendleton

regretted its use and tried to explain it away. Henry and he differed

"at the threshold" on government. "I think government necessary to

protect liberty.... Licentiousness" was "the natural offspring of

liberty"; and "therefore, all free governments should endeavor to

suppress it, or else it will ultimately overthrow that liberty of which

it is the result." Henry "professes himself an advocate for the middling

and lower classes of men, I profess to be a friend to the equal liberty

of all men, from the palace to the cottage."

The appeal to class hatred, said Pendleton, had been made by the

opposition exclusively; the Constitutionalists knew no distinction among

men except that of good and bad men. Why did the opposition make "the

distinction of _well-born_ from others?... Whether a man be great or

small, he is equally dear to me." He wished "for a regular government in

order to secure and protect ... honest citizens ... the industrious

farmer and planter." The purpose of the proposed National Government was

to cherish and protect industry and property. Pendleton spoke at great

length, but frequently his voice was so feeble that he could not be

understood or reported.[1261]

Madison followed with the fourth section of what might properly be

called his treatise on government. Henry replied, striking again the

master chord of the people's fears--that of a National Government as

something alien. "The tyranny of Philadelphia may be like the tyranny of

George III." That the Constitution must be amended "re-echoed from every

part of the continent"; but that could not be done "if we ratify

unconditionally." Henry remade his old points with his consummate art.

He mentioned a new subject, however, of such high practical importance

that it is astonishing that he had not advanced it at the beginning and

driven it home persistently. "There are," he said, "thousands and

thousands of contracts, whereof equity forbids an exact literal

performance.... Pass that government [the Constitution] and you will be

bound hand and foot.... An immense quantity of depreciated Continental

paper money ... is in the hands of individuals to this day. The holders

of this money may call for the nominal value, if this government be

adopted. This State may be compelled to pay her proportion of that

currency, pound for pound. Pass this government and you will be carried

to the federal court ... and you will be compelled to pay, shilling for

shilling."

Returning to this point later on, Henry said: "Some of the states owe a

great deal on account of paper money; others very little. Some of the

Northern States have collected and barrelled up paper money. Virginia

has sent thither her cash long ago. There is little or none of the

Continental paper money retained in this State. Is it not their business

to appreciate this money? Yes, and it will be your business to prevent

it. But there will be a majority [in Congress] against you and you will

be obliged to pay your share of this money, in its nominal value."[1262]

Referring to Pendleton's assertion that the State Court had declared

void legislative acts which violated the State Constitution, Henry

exclaimed: "Yes, sir, our judges opposed the acts of the legislature.

We have this landmark to guide us. They had the fortitude to declare

that they were the judiciary and would oppose unconstitutional acts. Are

you sure your federal judiciary will act thus? Is that judiciary as well

constructed, and as independent of the other branches, as our state

judiciary? Where are your landmarks in this government? I will be bold

to say you cannot find any in it. I take it as the highest encomium on

this country [Virginia] that the acts of the legislature, if

unconstitutional, are liable to be opposed by the judiciary."[1263]

As usual, Henry ended with a fearsome picture and prophecy, this time of

the danger to and destruction of Southern interests at the hands of the

Northern majority. This, said he, "is a picture so horrid, so wretched,

so dreadful, that I need no longer dwell upon it"; and he "dreaded the

most iniquitous speculation and stock-jobbing, from the operation of

such a system" as the Constitution provided.[1264] Madison replied--the

first spontaneous part he had taken in the debate.[1265]

The next morning the opposition centered their fire on the Mississippi

question. Henry again demanded that the members of the Convention who

had been in Congress should tell what had been done.[1266] The members

of Congress--Lee, Monroe, Grayson, and Madison--then gave their

versions of the Jay-Gardoqui transaction.[1267]

The Constitutionalists rightly felt that "the whole scene has been

conjured by Henry to affect the ruin of the new Constitution,"[1268] and

that seasoned gladiator now confirmed their fears. He astutely threw the

blame on Madison and answered the charge of the Constitutionalists that

"we [the opposition] are scuffling for Kentucky votes and attending to

local circumstances." With all of his address and power, Henry bore down

upon the Mississippi question. Thus he appealed for Kentucky votes:

"Shall we appear to care less for their interests than for that of

distant people [the Spaniards]?"

At Henry's word a vision rose before all eyes of the great American

valley sustaining "a mighty population," farms, villages, towns, cities,

colleges, churches, happiness, prosperity; and "the Mississippi covered

with ships laden with foreign and domestic wealth"--a vision of a

splendid West "the strength, the pride, and the flower of the

Confederacy." And then quickly succeeded on the screen the picture of

the deserted settlers, the West a wilderness, the Father of Waters

flowing idly to the sea, unused by commerce, unadorned by the argosies

of trade. Such, said he, would be the Mississippi under the Constitution

"controlled by those who had no interest in its welfare."[1269]

At last the Constitutionalists were stunned. For a while no one spoke.

Pendleton, "his right hand grasping his crutch, sat silent and

amazed."[1270] Nicholas, the dauntless, was first to recover himself,

and repeated Marshall's argument on the Mississippi question. Evidently

the opposition had lobbied effectively with the Kentucky members on that

sore point; for, exclaimed Nicholas, "we have been alarmed about the

loss of the Mississippi, in and _out_ of doors."[1271]

The Constitutionalists strove mightily to break the force of Henry's

_coup_ on the Kentucky delegates. He had "seen so many attempts made,"

exclaimed Randolph, "and so many wrong inducements offered to influence

the delegation from Kentucky," that he must speak his mind about

it.[1272] Corbin called the Mississippi trick "reprehensible." And well

might the Constitutionalists tremble; for in spite of all they could do,

ten out of fourteen of the Kentucky delegates voted against ratifying

the Constitution.

That night Pendleton fell ill and John Tyler, "one of the staunchest

opponents of the new Constitution," was elected Vice-President.[1273]

The Mississippi question was dropped for the moment; the

Constitutionalists rallied and carried Corbin's motion to debate the new

Government clause by clause in accordance with the original resolution.

Several sections of the first article were read and debated, Henry,

Mason, and Grayson for the opposition; Madison bearing the burden of the

debate for the Constitutionalists.

The rich man and the poor, the State Government a thing of the "people"

and the National Government something apart from the "people," were

woven throughout the Anti-Constitutionalists' assaults. "Where,"

exclaimed Henry, "are the purse and the sword of Virginia? They must go

to Congress. What has become of your country? The Virginian government

is but a name.... We are to be consolidated."[1274]

The second week's debate closed with the advantage on the side of the

opposition. Gouverneur Morris, the New York Constitutionalist, who,

still on the ground, was watching the fight in Richmond and undoubtedly

advising the Virginia Constitutionalists, reported to Hamilton in New

York that "matters are not going so well in this State as the Friends of

America could wish." The Anti-Constitutionalists had been making

headway, not only through Henry's tremendous oratory, but also by other

means; and the Constitutionalists acknowledged that their own arguments

in debate were having little or no effect.

"If, indeed, the Debates in Convention were alone attended to," wrote

Gouverneur Morris, "a contrary Inference would be drawn for altho M^r.

Henry is most warm and powerful in Declamation being perfectly Master of

'Action Utterrance and Power of Speech to stir Men's Blood' yet the

Weight of Argument is so strong on the Side of Truth as wholly to

destroy even on weak Minds the Effects of his Eloquence. But there are

as you well know certain dark Modes of operating on the Minds of Members

which like contagious Diseases are only known by their Effects on the

Frame and unfortunately our moral like our phisical Doctors are often

mistaken in their Judgment from Diagnostics. Be of good Chear. My

Religion steps in where my Understanding falters and I feel Faith as I

loose Confidence. Things will yet go right but when and how I dare not

predicate. So much for this dull Subject."[1275]

"We have conjectured for some days," Madison advised Hamilton, "that the

policy is to spin out the Session in order to receive overtures from

your [New York's] Convention: or if that cannot be, to weary the members

into a adjournment without taking any decision. It [is] presumed at the

same time that they do not despair of carrying the point of previous

amendments which is preferable game. The parties continue to be nearly

balanced. If we have a majority at all, it does not exceed three or

four. If we lose it Kentucke will be the cause; they are generally if

not unanimously against us."[1276]

On the back of Madison's letter, Henry Lee wrote one of his own to the

New York Constitutionalist chieftain. "We possess as yet," said Lee, "in

defiance of great exertions a majority, but very small indeed. A

correspondence has certainly been opened thro a Mr. O.[swald] of

Philad^a from the Malcontents of B. & N. Y. to us--it has its operation,

but I believe we are still safe, unless the question of adjournment

should be introduced, & love of home may induce some of our friends to

abandon their principles."[1277]

"The business is in the most ticklish state that can be imagined,"

Madison informed Washington; "the majority will certainly be very small

on whatever side it may finally lie; and I dare not encourage much

expectation that it will be on the favorable side. Oswald of Philad^a

has been here with letters for the anti-Federal leaders from N. York and

probably Philad^a. He Staid a very short time here during which he was

occasionally closeted with H----y M--s--n &c."[1278]

On Monday the Anti-Constitutionalists were first in the field. They were

by now displaying improved tactics. Henry opened on the dangers of a

standing army. "If Congress shall say that the general welfare requires

it, they may keep armies continually on foot.... They may billet them on

the people at pleasure." This is "a most dangerous power! Its principles

are despotic."[1279] Madison followed,[1280] and Mason, Corbin, and

Grayson also spoke,[1281] the latter asserting that, under the

Constitution, the States could not "command the militia" unless by

implication.

Here Marshall again took part in the debate.[1282] He asked whether

Grayson was serious in stating that the Constitution left no power in

the States over the militia unless by implication. Under the

Constitution, State and National Governments "each derived its powers

from the people, and each was to act according to the powers given it."

Were "powers not given retained by implication?" asked Marshall. Was

"this power [over the militia] not retained by the states, as they had

not given it away?"

It is true, he admitted, that "Congress may call forth the militia" for

National purposes--"as to suppress insurrections and repel invasions";

but the power given the States by the people "is not taken away, for the

Constitution does not say so." The power of Congress over the ten miles

square where the National Capital was to be located is "exclusive ...

because it is expressed [in the Constitution] to be exclusive." Marshall

contended that any power given Congress which before was in the States

remained in both unless the Constitution said otherwise or unless there

was incompatibility in its exercise. So the States would have the same

control over the militia as formerly. "When invaded or in imminent

danger they [the States] can engage in war."

Grayson had said, declared Marshall, that if the National Government

disciplined the militia, "they will form an aristocratic government,

unsafe and unfit to be trusted." Grayson interrupted Marshall in an

unsuccessful attempt to squirm out of the position in which the latter

had placed him. He had only said that in its military features the

Constitution "was so constructed as to form a great aristocratic body."

Marshall retorted that "as the government was drawn from the people, the

feelings and interests of the people would be attended to"; and,

therefore, there would be no military aristocracy. "When the government

is drawn from the people and depending on the people for its

continuance, oppressive measures will not be attempted," argued

Marshall, "as they will certainly draw on their authors the resentment

of those on whom they depend." No! cried he: "On this government, thus

depending on ourselves for its existence, I will rest my safety."

Again Marshall expressed his military experience and instincts. If war

should come "what government is able to protect you?" he asked. "Will

any state depend on its own exertions?" No! If the National Government

is not given the power "state will fall after state and be a sacrifice

to the want of power in the general government." Uttering the motto of

American Nationalism, which, long years afterward, he declared to have

been the ruling maxim of his entire life, Marshall cried, "_United we

are strong, divided we fall._" If the National militia cannot "draw the

militia of one state to another ... every state must depend upon

itself.... It requires a superintending power, ... to call forth the

resources of all to protect all."

Replying to Grayson's assertion that "a general regulation [of the

militia] may be made to inflict punishments," Marshall asked whether

Grayson imagined that a militia law would be "incapable of being

changed?" Grayson's idea "supposes that men renounce their own

interests." And "if Congress neglect our militia, we can arm them

ourselves. Cannot Virginia import arms ... [and] put them into the hands

of her militia men?" Marshall summed up with the statement that the

States derived no powers from the Constitution "but retained them,

though not acknowledged in any part of it."[1283]

Marshall's speech must have been better than anything indicated in the

stenographer's report; for the resourceful Grayson was moved to answer

it at once[1284] and even Henry felt called upon to reply to it.[1285]

Henry was very fond of Marshall; and this affection of the mature

statesman for the rising young lawyer saved the latter in a furious

political contest ten years afterwards.[1286] The debate was continued

by Madison, Mason, Nicholas, Lee, Pendleton, and finally ended in a

desultory conversation,[1287] but nothing important or notable was said

in this phase of the debate. One statement, however, coming as it did

from Mason, flashes a side-light on the prevailing feeling that the

proposed National Government was something apart from the people. Mason

saw the most frightful dangers from the unlimited power of Congress over

the ten miles square provided for the National Capital.

"This ten miles square," cried Mason, "may set at defiance the laws of

the surrounding states, and may, like the custom of the superstitious

days of our ancestors, become the sanctuary of the blackest crimes. Here

the Federal Courts are to sit.... What sort of a jury shall we have

within the ten miles square?" asked Mason, and himself answered, "The

immediate creatures of the government. What chance will poor men get?...

If an attempt should be made to establish tyranny over the people, here

are ten miles square where the greatest offender may meet protection. If

any of the officers or creatures [of the National Government] should

attempt to oppress the people or should actually perpetrate the blackest

deed, he has nothing to do but to get into the ten miles square."[1288]

The debate then turned upon amending the Constitution by a Bill of

Rights, the Constitutionalists asserting that such an amendment was not

necessary, and the opposition that it was absolutely essential. The

question was "whether rights not given up were reserved?" Henry, as

usual, was vivid. He thought that, without a Bill of Rights, "excisemen

may come in multitudes ... go into your cellars and rooms, and search,

and ransack, and measure, everything you eat, drink, and wear." And the

common law! The Constitution did not guarantee its preservation.

"Congress may introduce the practice of the civil law, in preference to

that of the common law; ... the practice of ... torturing, to extort a

confession of the crime.... We are then lost and undone."[1289]

The slavery question next got attention, Mason, Madison, Tyler, Henry,

and Nicholas continuing the discussion.[1290] Under the first clause of

the tenth section of article one, Henry again brought up the payment of

the Continental debt. "He asked gentlemen who had been high in

authority, whether there were not some state speculations on this

matter. He had been informed that some states had acquired vast

quantities of that money, which they would be able to recover in its

nominal value of the other states." Mason said "that he had been

informed that some states had speculated most enormously in this matter.

Many individuals had speculated so as to make great fortunes on the ruin

of their fellow-citizens." Madison in reply assured the Convention that

the Constitution itself placed the whole subject exactly where it was

under the Confederation; therefore, said he, it is "immaterial who holds

those great quantities of paper money,... or at what value they

acquired it."[1291] To this extent only was the point raised which

became most vital when the National Government was established and under

way.[1292]

Madison's point, said Mason, was good as far as it went; but, under the

Confederation, Congress could discharge the Continental money "at its

depreciated value," which had gone down "to a thousand for one." But

under the Constitution "we must pay it shilling for shilling or at least

at the rate of one for forty"; which would take "the last particle of

our property.... We may be taxed for centuries, to give advantage to a

few particular states in the Union and a number of rapacious

speculators." Henry then turned Madison's point that "the new

Constitution would place us in the same situation with the old"; for

Henry saw "clearly" that "this paper money must be discharged shilling

for shilling."[1293] Then Henry brought up the scarecrow of the British

debts, which had more to do with the opposition to the Constitution in

Virginia[1294] than any other specific subject, excepting, perhaps, the

threatened loss of the Mississippi and the supreme objection that a

National Government would destroy the States and endanger "liberty."

The opposition had now come to the point where they were fighting the

separate provisions of the Constitution one by one. When the first

section of the second article, concerning the Executive Department, was

reached, the opposition felt themselves on safe ground. The Constitution

here sapped the "great fundamental principle of responsibility in

republicanism," according to Mason.[1295] Grayson wanted to know how the

President would be punished if he abused his power. "Will you call him

before the Senate? They are his counsellors and partners in

crime."[1296]

The treaty-making power, the command of the army, the method of electing

the President, the failure of the Constitution to provide for his

rotation in office, all were, to the alarmed Anti-Constitutionalists,

the chains and shackles of certain and inevitable despotism. The simple

fears of the unlettered men who sullenly had fought the Constitution in

the Massachusetts Convention were stated and urged throughout the great

debate in Virginia by some of her ablest and most learned sons. Madison

was at his best in his exposition of the treaty-making power. But if the

debate on the Executive Department had any effect whatever in getting

votes for or against the Constitution, the advantage was with the

enemies of the proposed new Government.

Grayson wrote to Dane: "I think we got a Vote by debating the powers of

the President. This, you will observe, is confidential." But this was

cold comfort, for, he added, "our affairs ... are in the most ticklish

situation. We have got ten out of thirteen of the Kentucke members but

we wanted the whole: & I don't know that we have got one yet of the four

upper counties: this is an important point & which both sides are

contending for by every means in their power. I believe it is absolutely

certain that we have got 80 votes on our side which are inflexible &

that eight persons are fluctuating & undecided."[1297]

FOOTNOTES:

[1216] "I am to acknowledge yours of the 19th of May, which reached me a

few days since." (Gouverneur Morris from Richmond, June 13, 1788, to

Hamilton in New York; Hamilton MSS., Lib. Cong.)

[1217] Robert Morris to Horatio Gates, Richmond, June 12, 1788; MS.,

N.Y. Pub. Lib. "James [Wilson] the Caladonian, Leut. Gen. of the

myrmidons of power, under Robert [Morris] the cofferer, who with his

aid-de-camp, _Gouvero_ [Gouverneur] the cunning man, has taken the field

in Virginia." (_Centinel_, no. 10, Jan. 12, 1788; reprinted in McMaster

and Stone, 631.)

Robert Morris was in Richmond, March 21, 1788. (Morris to _Independent

Gazetteer_ on that date; _ib._, 787, denying the charge that paper had

made against him. See _supra_, chap. X.) He was in Richmond in May and

paid John Marshall four pounds, four shillings as a "retainer." (Account

Book, May 2, 1788.) He had heavy business interests in Virginia; see

Braxton _vs._ Willing, Morris & Co. (4 Call, 288). Marshall was his

lawyer.

[1218] Morris to Gates, June 12, 1788, _supra_. Morris's remark about

depredations on his purse may or may not refer to the work of the

Convention. He was always talking in this vein about his expenses; he

had lost money in his Virginia business ventures; and, having his family

with him, may, for that reason, have found his Southern trip expensive.

My own belief is that no money was used to get votes; for Henry, Mason,

and Grayson surely would have heard of and, if so, denounced such an

attempt.

[1219] Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong.

[1220] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311.

[1221] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311.

[1222] Grigsby, i, 149-50.

[1223] The new tavern at Richmond--competitor of Formicola's inn.

[1224] Grigsby, i, 151.

[1225] Kentucky had fourteen members. On the final vote, the

Constitution was ratified by a majority of only 10 out of 168 members

present and voting. At the opening of the Convention, Grayson said that

"the district of Kentucke is with us, and if we can get all of the four

Counties, which lye on the Ohio between the Pennsylv^y line and Big

Sandy Creek, the day is our own." (Grayson to Dane, June 4, 1788; Dane

MSS., Lib. Cong.) The Constitutionalists finally succeeded in getting

four of these Kentucky votes.

[1226] The Jay-Gardoqui agreement.

[1227] Jefferson to Donald, Feb. 7, 1788; Jefferson's _Writings_:

Washington, ii, 355; and see Monroe to Jefferson, July 12, 1788;

_Writings_: Hamilton, i, 186-87.

[1228] Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a

very animated manner expatiated on the evil and pernicious tendency of

keeping secret the common proceedings of government." (_Ib._, 170.)

[1229] Grigsby, i, footnote to 157.

[1230] Elliott, iii, 150-76.

[1231] Lee, while pretending to praise the militia, really condemned it

severely; and cited the militia's panic and flight at Guilford

Court-House, which lost the battle to the Americans. "Had the line been

supported that day," said he, "Cornwallis, instead of surrendering at

Yorktown, would have laid down his arms at Guilford." (Elliott, iii,

178.)

[1232] Randolph's letter explaining why he had refused to sign the

Constitution.

[1233] This was the only quarrel of the Convention which threatened

serious results. A duel was narrowly averted. Colonel William Cabell, as

Henry's friend, called on Randolph that night; but matters were arranged

and the tense situation relieved when it was learned, next morning, that

no duel would take place. (Grigsby, i, 162-65.)

[1234] Elliott, iii, 187-207.

[1235] Grigsby, i, 167-68.

[1236] Elliott, iii, 207-22.

[1237] "When any other member spoke, the members of the audience would,

in half an hour, be going out or moving from their seats." (Winston to

Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two

days' debate, except five; and often spoke several times a day. (_Ib._,

350.)

[1238] Grigsby, i, 176.

[1239] Marshall's Account Book. The entry is: "[June] 2 Paid for coat

for self 1." Two months earlier Marshall paid "for Nankin for breeches

for self 1.16." (_Ib._, April 1, 1788.) Yet about the same time he spent

one pound, nine shillings at a "barbecue."

[1240] Grigsby, i, 176.

[1241] Marshall had provided for entertaining during the Convention. His

Account Book shows the following entry on May 8, 1788: "Paid McDonald

for wine 20" (pounds); and "bottles 9/" (shillings). This was the

largest quantity of wine Marshall had purchased up to that time.

[1242] Marshall's reputation for "eloquence" grew, as we shall see,

until his monumental work on the Supreme Bench overshadowed his fame as

a public speaker.

[1243] Elliott, iii, 222.

[1244] Marshall's idea was that government should be honest and

efficient; a government by the people, whether good or bad, as a method

of popular self-development and progress did not appeal to him as much

as excellence in government.

[1245] Marshall here referred to the case of Josiah Philips, and fell

into the same error as had Randolph, Henry, and others. (See _supra_,

393, footnote 1.)

[1246] Humphrey Marshall, i, 254. Humphrey Marshall finally voted for

the Constitution, against the wishes of his constituents. (Scott,

135-38.)

[1247] See vol. III of this work.

[1248] See entire speech in Elliott, iii, 223-36.

[1249] Some of the sentences used in this unprepared speech are similar

to those found in the greatest of his opinions as Chief Justice. (See

vol. III of this work.)

[1250] Grigsby, i, 183-85.

[1251] Elliott, iii, 236.

[1252] _Ib._, 236-47.

[1253] _Ib._, 247-62.

[1254] _Ib._, 254.

[1255] This caustic reference was to the members of the Convention who

had been Tories. (Grigsby, i, 193; Elliott, iii, 269; also Rowland, ii,

240.) As we have seen most of the Tories and Revolutionary soldiers were

united for the Constitution. These former enemies were brought together

by a common desire for a strong National Government.

[1256] Elliott, iii, 262-72.

[1257] _Ib._, 272-73.

[1258] Grigsby, i, 194-205. William Grayson was one of the strongest men

in Virginia. He became Virginia's first Senator under the Constitution.

(See _infra_, vol. II, chap. II.) He filled and satisfied the public eye

of his day as a soldier, scholar, and statesman. And yet he has dropped

out of history almost completely. He is one of those rare personalities

whom the whims of time and events have so obscured that they are to be

seen but dimly through the mists. His character and mind can be measured

but vaguely by fragments buried in neglected pages. William Grayson's

talents, work, and vanished fame remind one of the fine ability, and all

but forgotten career of Sir James Mackintosh.

[1259] Elliott, iii, 279.

[1260] Elliott, iii, 273-93 (especial passage, 280).

[1261] Elliott, iii, 293-305.

[1262] Elliott, iii, 319-22; and see chap. II, vol. II, of this work.

Although this, like other economic phases of the contest, was of

immediate, practical and serious concern to the people, Henry touched

upon it only twice thereafter and each time but briefly; and Mason

mentioned it only once. This fact is another proof of the small place

which this grave part of the economic problem occupied in the minds of

the foes of the Constitution, in comparison with that of "liberty" as

endangered by a strong National Government.

[1263] Elliott, iii, 325. At this time the fears of the

Anti-Constitutionalists were principally that the powers given the

National Government would "swallow up" the State Governments; and it was

not until long afterward that objection was made to the right and power

of the National Supreme Court to declare a law of Congress

unconstitutional. (See vol. III of this work.)

[1264] _Ib._, 313-28.

[1265] _Ib._, 328-32.

[1266] _Ib._, 332-33.

[1267] Elliott, iii, 333-51.

[1268] Grigsby, i, 230 and 243.

[1269] _Ib._, 245; Elliott, iii, 251-56. This, the real vote-getting

part of Henry's speech, is not reported by Robertson.

[1270] Grigsby, i, 245.

[1271] Elliott, iii, 356.

[1272] _Ib._, 361-65.

[1273] Grigsby, i, 248.

[1274] Elliott, iii, 366-410.

[1275] Gouverneur Morris from Richmond to Hamilton in New York, June 13,

1788; Hamilton MSS., Lib. Cong.

[1276] Madison to Hamilton, June 16, 1788; Hamilton MSS., Lib. Cong.

[1277] Lee to Hamilton; Hamilton MSS., Lib. Cong. The first paragraph of

Lee's letter to Hamilton shows that the latter was helping his friend

financially; for Lee wrote, "God bless you & your efforts to save me

from the manifold purse misfortunes which have & continue to oppress me,

whenever I attempt to aid human nature. You will do what you think best,

& whatever you do I will confirm--Hazard has acted the part of a decided

rascal, & if I fail in my right, I may not in personal revenge." (_Ib._)

[1278] Madison to Washington, June 13, 1788; _Writings_: Hunt, v, 179

and footnote.

[1279] Elliott, iii, 410-12.

[1280] _Ib._, 412-15.

[1281] _Ib._, 415-18.

[1282] Elliott, iii, 419-20.

[1283] Elliott, iii, 419-21.

[1284] _Ib._, 421-22.

[1285] _Ib._, 422-24.

[1286] Henry turned the tide in Marshall's favor in the latter's hard

fight for Congress in 1798. (_Infra_, vol. II, chap. X.)

[1287] Elliott, iii, 434.

[1288] Elliott, iii, 431. Throughout the entire debate Henry often

sounded his loudest alarms on the supreme power of Congress over the ten

miles square where the National Capital was to be located; and, indeed,

this seems to have been one of the chief sources of popular

apprehension. The fact that the people at large looked upon the proposed

National Government as something foreign, something akin to the British

rule which had been overthrown, stares the student in the face wherever

he turns among the records of the Constitutional period. It is so

important that it cannot too often be repeated.

Patrick Henry, of course, who was the supreme popular orator of our

history and who drew his strength from his perfect knowledge of the

public mind and heart, might have been expected to make appeals based on

this general fear. But when such men as George Mason and William

Grayson, who belonged to Virginia's highest classes and who were

carefully educated men of conservative temper, did the same thing, we

see how deep and strong was the general feeling against any central

National power.

[1289] Elliott, iii, 447-49.

[1290] _Ib._, 452-57.

[1291] Elliott, iii, 473.

[1292] It is exceedingly strange that in the debates on the Constitution

in the various State Conventions, so little, comparatively, was made of

the debt and the speculations in it. The preciousness of "liberty" and

the danger of "monarchy," the security of the former through State

sovereignty and the peril of the latter through National Government,

received far more attention than did the economic problem.

[1293] Elliott, 472-74. And see vol. II, chap. II, of this work.

[1294] "The recovery of the British debts can no longer be postponed and

there now seems to be a moral certainty that your patrimony will all go

to satisfy the unjust debt from your papa to the Hanburys." (Tucker to

his stepsons, June 29, 1788, quoted in Conway, 106; and see comment,

_ib._)

[1295] Elliott, iii, 484.

[1296] _Ib._, 491.

[1297] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. This shows

the loose management of the Anti-Constitutionalist politicians: for

Kentucky had fourteen votes in the Convention, instead of thirteen, as

Grayson declared; and so uncertain was the outcome that to omit a single

vote in calculating the strength of the contending forces was

unpardonable in one who was, and was accounted to be, a leader.

The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788 · 第 11 / 12 章