The Life of John Marshall Volume I Part 50

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 Const.i.tution 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 Const.i.tutionalists rightly felt that "the whole scene has been conjured by Henry to affect the ruin of the new Const.i.tution,"[1268] and that seasoned gladiator now confirmed their fears. He astutely threw the blame on Madison and answered the charge of the Const.i.tutionalists that "we [the opposition] are scuffling for Kentucky votes and attending to local circ.u.mstances." 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 Const.i.tution "controlled by those who had no interest in its welfare."[1269]

At last the Const.i.tutionalists 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 Const.i.tutionalists 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 Const.i.tutionalists tremble; for in spite of all they could do, ten out of fourteen of the Kentucky delegates voted against ratifying the Const.i.tution.

That night Pendleton fell ill and John Tyler, "one of the staunchest opponents of the new Const.i.tution," was elected Vice-President.[1273]

The Mississippi question was dropped for the moment; the Const.i.tutionalists 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 Const.i.tutionalists.

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-Const.i.tutionalists' a.s.saults. "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 Const.i.tutionalist, who, still on the ground, was watching the fight in Richmond and undoubtedly advising the Virginia Const.i.tutionalists, 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-Const.i.tutionalists had been making headway, not only through Henry's tremendous oratory, but also by other means; and the Const.i.tutionalists 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 Const.i.tutionalist 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-Const.i.tutionalists 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 a.s.serting that, under the Const.i.tution, 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 Const.i.tution left no power in the States over the militia unless by implication. Under the Const.i.tution, 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 Const.i.tution 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 Const.i.tution] to be exclusive." Marshall contended that any power given Congress which before was in the States remained in both unless the Const.i.tution 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 Const.i.tution "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 a.s.sertion 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 Const.i.tution "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 superst.i.tious 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 Const.i.tution by a Bill of Rights, the Const.i.tutionalists a.s.serting 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, "excis.e.m.e.n may come in mult.i.tudes ... go into your cellars and rooms, and search, and ransack, and measure, everything you eat, drink, and wear." And the common law! The Const.i.tution 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 quant.i.ties 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 a.s.sured the Convention that the Const.i.tution itself placed the whole subject exactly where it was under the Confederation; therefore, said he, it is "immaterial who holds those great quant.i.ties 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 Const.i.tution "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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution to provide for his rotation in office, all were, to the alarmed Anti-Const.i.tutionalists, the chains and shackles of certain and inevitable despotism. The simple fears of the unlettered men who sullenly had fought the Const.i.tution in the Ma.s.sachusetts 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 Const.i.tution, 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--compet.i.tor of Formicola's inn.

[1224] Grigsby, i, 151.

[1225] Kentucky had fourteen members. On the final vote, the Const.i.tution 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 Const.i.tutionalists 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.