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

At first he spoke so low that even the reporter could not catch what he said.1205 He would not, remarked Madison, attempt to impress anybody by "ardent professions of zeal for the public welfare." Men should be judged by deeds and not by words. The real point was whether the Constitution would be a good thing or a bad thing for the country. Henry had mentioned the dangers concealed in the Constitution; let him specify and prove them. One by one he caught and crushed Henry's points in the jaws of merciless logic.

What, for the gentle Madison, was a bold blow at the opposition shows how even he was angered. "The inflammatory violence wherewith it [the Constitution] was opposed by designing, illiberal, and unthinking minds, begins to subside. I will not enumerate the causes from which, in my conception, the heart-burnings of a majority of its opposers have originated." His argument was unanswerable as a matter of pure reason and large statesmanship, but it made little headway and had only slight if any influence. "I am not so sanguine," reported Washington's nephew to the General at Mount Vernon, "as to … flatter myself that he made many converts."1206

The third gun of the powerful battery which the Constitutionalists had arranged to batter down the results of Henry's speech was now brought into action. George Nicholas again took the floor. He was surprised that Mason's resolution to debate the Constitution clause by clause had not been followed. But it had not been, and therefore he must speak at large. While Nicholas advanced nothing new, his address was a masterpiece of compact reasoning.1207

Age and middle age had spoken for the Constitution; voices from the bench and the camp, from the bar and the seats of the mighty, had pleaded for it; and now the Constitutionalists appealed to the very young men of the Convention through one of the most attractive of their number. The week must not close with Henry's visions of desolation uppermost in the minds of the members. On Saturday morning the chair recognized Francis Corbin of Middlesex. He was twenty-eight years old and of a family which had lived in Virginia from the early part of the seventeenth century. He had been educated in England at the University of Cambridge, studied law at the Inner Temple, was a trained lawyer, and a polished man of the world.

Corbin made one of the best speeches of the whole debate. On the nonpayment of our debts to foreign nations he was particularly strong. "What!" said he, "borrow money to discharge interest on what was borrowed?.. Such a plan would destroy the richest country on earth." As to a Republican Government not being fitted for an extensive country, he asked, "How small must a country be to suit the genius of Republicanism?" The power of taxation was the "lungs of the Constitution." His defense of a standing army was novel and ingenious. The speech was tactful in the deference paid to older men, and so captivating in the pride it must have aroused in the younger members that it justified the shrewdness of the Constitutionalist generals in putting forward this youthful and charming figure.1208

Of course Henry could not follow a mere boy. He cleverly asked that Governor Randolph should finish, as the latter had promised to do.1209 Randolph could not avoid responding; and his speech, while very able, was nevertheless an attempt to explode powder already burned.1210 Madison saw this, and getting the eye of the chair delivered the second of those intellectual broadsides, which, together with his other mental efforts during the Constitutional period, mark him as almost the first, if not indeed the very first, mind of his time.1211 The philosophy and method of taxation, the history and reason of government, the whole range of the vast subject were discussed,1212 or rather begun; for Madison did not finish, and took up the subject four days later. His effort so exhausted him physically that he was ill for three days.1213

Thus fortune favored Henry. The day, Saturday, was not yet spent. After all, he could leave the last impression on the members and spectators, could apply fresh color to the picture he wished his hearers to have before their eyes until the next week renewed the conflict. And he could retain the floor so as to open again when Monday came. The art of Henry in this speech was supreme. He began by stating the substance of Thomas Paine's terrific sentence about government being, at best, "a necessary evil"; and aroused anew that repugnance to any sturdy rule which was a general feeling in the breasts of the masses.

Both the Confederation and the proposed Constitution were "evils," asserted Henry, and the only question was which was the less. Randolph and Madison incautiously had referred to maxims. Henry seized the word with infinite skill. "It is impiously irritating the avenging hand of Heaven … to desert those maxims which alone can preserve liberty," he thundered. They were lowly maxims, to be sure, "poor little, humble republican maxims"; but "humble as they are" they alone could make a nation safe or formidable. He rang the changes on the catchwords of liberty.

Then Henry spoke of Randolph's change of front. The Constitution "was once execrated" by Randolph. "It seems to me very strange and unaccountable that that which was the object of his execration should now receive his encomiums. Something extraordinary must have operated so great a change in his opinion." Randolph had said that it was too late to oppose the "New Plan"; but, answered Henry, "I can never believe that it is too late to save all that is precious." Henry denied the woeful state of the country which the Constitutionalist speakers had pictured. The "imaginary dangers" conjured by them were to intimidate the people; but, cried Henry, "fear is the passion of slaves." The execution of Josiah Philips under the bill of attainder was justifiable. Philips had been a "fugitive murderer and an outlaw" leader of "an infamous banditti," perpetrator of "the most cruel and shocking barbarities … an enemy to human nature."1214

It was not true, declared Henry, that the people were discontented under the Confederation – at least the common people were not; and it was the common people for whom he spoke. But, of course, sneered that consummate actor, "the middling and lower ranks of people have not those illuminated ideas" which the "well-born" are so happily possessed of; "they [the common people] cannot so readily perceive latent objects." It was only the "illuminated imaginations" and the "microscopic eyes of modern statesmen" that could see defects where there were none.

Henry hinted with great adroitness at the probable loss of the Mississippi, which was the sorest point with the members from Kentucky; and, having injected the poison, passed on to let it do its work against the time when he would strike with all his force. Then he appealed to state pride. "When I call this the most mighty state in the Union, do I not speak the truth? Does not Virginia surpass every state?" Of course! There was no danger, then, that Virginia would be left out of the Union, as the Constitutionalists had hinted might happen if Virginia rejected the Constitution; the other States would be glad to have her on her own terms.

Henry went over a variety of subjects and then returned to his favorite idea of the National Government as something foreign. Picking up a careless word of Randolph, who had spoken of the people as a "herd," Henry said that perhaps the words "We, the people," were used to recommend it to the masses, "to those who are likened to a herd; and by the operation of this blessed system are to be transformed from respectable, independent citizens, to abject, dependent subjects or slaves."1215 Finally, when he felt that he had his hearers once more under his spell, Henry, exclaiming that a Bill of Rights was vital, asked for adjournment, which was taken, the great orator still holding the floor.

CHAPTER XI

THE SUPREME DEBATE

There will undoubtedly be a greater weight of abilities against the adoption in this convention than in any other state. (Washington.)

What are the objects of the National Government? To protect the United States and to promote the general welfare. (Marshall, in his first debate.)

Now appeared the practical political managers from other States. From Saturday afternoon until Monday morning there was great activity in both camps. The politicians of each side met in secret conference to plan the operations of the coming week and to devise ways and means of getting votes. For the Constitutionalists, Gouverneur Morris was on the ground from New York;1216 Robert Morris and probably James Wilson, both from Philadelphia, had been in Virginia at the time of the elections and the former remained for the Convention.1217 During the second week the Philadelphia financier writes Gates from Richmond, lamenting "the depredations on my purse," but "inclined to think the Constitution will be adopted by Virginia."1218

For the opposition, Oswald, publisher of the "Independent Gazetteer," came on from Philadelphia and arrived in Richmond at the close of the first week's debate. He at once went into secret conference with Henry, Mason, and the other Anti-Constitutionalist leaders. Madison reports to Hamilton that "Oswald of Phila 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 letter1232 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."