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

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.

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]?"