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.