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

by Albert J. Beveridge

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.

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^ạ 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^ạ has been here with letters for the anti-Federal leaders from N. York and probably Philad^ạ 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]