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

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 Mr. 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 Philadạ 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 Philadạ has been here with letters for the anti-Federal leaders from N. York and probably Philadạ 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 once1284 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 Virginia1294 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

CHAPTER XII

THE STRATEGY OF VICTORY

Washington's influence carried this government [Virginia's ratification of the Constitution]. (Monroe to Jefferson, July 12, 1788.)

If I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. (Henry, in his last debate.)

Now came the real tug-of-war. The debate on the Judiciary was the climax of the fight. And here John Marshall was given the place of chief combatant. The opposition felt that again they might influence one or two delegates by mere debate, and they prepared to attack with all their might. "Tomorrow the Judiciary comes on when we [Anti-Constitutionalists] shall exert our whole force. It is expected we shall get two Votes if the point is conducted in an able & masterly manner," Grayson advised the opposition headquarters in New York.1298

The Judiciary was, indeed, the weakest part of the Constitutionalists' battle line. The large amount of the British debts; the feeling, which Virginia's legislation against the payment of them had fostered, that the day would be far distant and perhaps would never come when those debts would have to be paid; the provision of the Constitution concerning the making of treaties, which were to be the supreme law of the land; the certainty that the Treaty of Peace would be covered by the new fundamental law; the fear that another treaty would be negotiated governing the British obligations more specifically, if the Constitution were adopted; the fact that such a treaty and all other National laws would be enforced by National Courts – all these and many other germane considerations, such as land grants and confused titles, were focused on the fears of the planters.

The creditor class were equally anxious and alarmed. "If the new Constitution should not be adopted or something similar, we are of the opinion that such is the interest and influence of Debtors in our State that every thing … will be at Risk" was the opinion of the legal representatives in Virginia of the Collins mercantile house.1299

Great quantities of land granted under the Royal Government by Great Britain, but which the State had confiscated, had been bought and settled by thousands of men whose families now lived upon this land; and these settlers felt that, in some way, their titles would be in danger if they were dragged before a National Court.1300

The Constitutionalists did not underestimate their peril, and at no point during the three weeks' debate did they prepare for battle with greater care. They returned to their original tactics and delivered the first blow. Pendleton, of course, was the ideal man to lead the Constitutionalist attack. And never in his whole life did that extraordinary man make a more convincing argument.1301 Mason tried his best to answer Pendleton, although he admitted that the Judiciary "lies out of my line." Still he was clear, in his own mind, that the National Judiciary was "so constructed as to destroy the dearest rights of the community," and thought it would "destroy the state governments, whatever may have been the intention."

While Mason spoke with uncertainty, it was in this brief speech that this eminent Virginian uncovered the hidden thought and purpose of many of the Constitutionalists; and uttered an unconscious prophecy which it was the destiny of John Marshall to realize. "There are," said Mason, "many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable"; and he further declared, "I know from my own knowledge many worthy gentlemen" of this opinion. Madison demanded of Mason "an unequivocal explanation." Mason exonerated Madison, personally, and admitted that "neither did I ever hear any of the delegates from this state advocate it." Thus did the extreme courtesy of the Virginia debate cause the opposition to yield one of its most effective weapons.1302

But Mason made the most out of the Constitution's proposed Judiciary establishment. Take it at its best, said he: "Even suppose the poor man should be able to obtain judgment in the inferior court, for the greatest injury, what justice can he get on appeal? Can he go four or five hundred miles? Can he stand the expense attending it?"1303 As to the jurisdiction of National Courts in controversies between citizens of different States, "Can we not trust our state courts with a decision of these?" asked Mason. "What!" cried he, "carry me a thousand miles from home – from my family and business – to where, perhaps, it will be impossible for me to prove that I paid" the money sued for.

"Is not a jury excluded absolutely?" by the Constitution, asked Mason. And even if a jury be possible in National Courts, still, under the Constitution, where is there any right to challenge jurors? "If I be tried in the Federal Court for a crime which may effect my life, have I a right of challenging or excepting to the jury?" This omission was a serious and immediate peril to great numbers of Virginians, said he. "I dread the ruin that will be wrought on thirty thousand of our people [deriving their titles through Fairfax] with respect to disputed lands. I am personally endangered as an inhabitant of the Northern Neck." Under the Constitution "the people of that part will be obliged … to pay the quit rent of their lands." This was to Mason, "a most serious alarm…"

"Lord Fairfax's title was clear and undisputed," he continued. The State had "taxed his lands as private property"; but "after his death" Virginia, in 1782, "sequestered the quit rents due at his death, in the hands of his debtors. The following year" they were restored to his executor. Then came the Treaty of Peace providing against "further confiscation"; but, "after this, an act of Assembly passed, confiscating his [Fairfax's] whole property."

So, concluded Mason, "as Lord Fairfax's title was indisputably good, and as treaties [under the Constitution] are to be the supreme law of the land, will not his representatives be able to recover all in the federal court? How will gentlemen like to pay an additional tax on lands in the Northern Neck?" Yet that was what they would be compelled to do if the Constitution were adopted. Thus they would be "doubly taxed." "Were I going to my grave, I would appeal to Heaven that I think it [this] true," fervently avowed the snowy-haired Mason.

Thus Mason made one of the cleverest appeals of the whole debate to the personal and pecuniary interests of a considerable number of the people and to several members of the Convention. In this artful and somewhat demagogic argument he called attention to the lands involved in other extensive land grants. As we have seen, John Marshall was then personally interested in the Fairfax title,1304 and he was soon to possess it; in after years, it was to develop one of the great legal contests of history; and the court over which Marshall was to preside was to settle it definitively.

Although not a lawyer,1305 Madison now made an argument which was one of the distinguished intellectual performances of the Convention. But he did not comprehend the sweep of the National Judiciary's power. "It is not in the power of individuals," said Madison, "to call any state into court." It may be that this statement influenced John Marshall, who soon followed, to repeat it.1306

But it was Henry who gave the subject of the Judiciary that thrill, anticipation of which filled every seat on the floor and packed the galleries. "Mournful," to Henry, were the recollections which the debate already had produced. "The purse is gone; the sword is gone," and now the scales of Justice are to be given away. Even the trial by jury is to be abandoned. Henry spoke long and effectively; and, extravagant as most of his statements were, his penetrating mind was sometimes more nearly right in its forecast than even that of Madison.

As he closed, the daring of the Patrick Henry of 1765 and 1775 displayed itself. "Shall Americans give up that [jury trial] which nothing could induce the English people to relinquish?" he exclaimed. "The idea is abhorrent to my mind. There was a time when we should have spurned at it… Old as I am, it is probable I may yet have the appellation of rebel… As this government [Constitution] stands, I despise and abhor it," cried the unrivaled orator of the people.1307