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

Randolph's change was ascribed to improper motives. Mason was almost offensive in his insinuations during the debate and Henry openly so, as will appear. Randolph's last words to the Convention were explanatory and defensive.

Washington made Randolph his first Attorney-General and he exercised great power for a time. "The Government is now solely directed by Randolph," complained Jefferson. (Conway, 140.) While Washington certainly did not appoint Randolph as a reward for his conduct in the struggle over the Constitution, it is a reasonable inference that he would not have been made a member of the Cabinet if he had not abandoned his opposition, supported the Constitution, and suppressed Clinton's letter.

Virginia had the head of the Cabinet in Jefferson as Secretary of State; Washington himself was from Virginia; and since there were numerous men from other States as well as or better equipped than Randolph for the Attorney-Generalship, his selection for that place is, at least, noteworthy. It gave Virginia the Presidency and two members of a Cabinet which numbered only four in all.

When the Attorney-Generalship was tendered to Randolph, he wrote to Madison bitterly resenting "the load of calumny which would be poured upon" him if he should accept. "For," writes Randolph, "it has been insinuated … that my espousal of the Constitution had alienated even its friends from me, who would not elect me to the house of representatives. The insinuation has been carried so far as to apply it to the disposal of offices under the government." (Randolph to Madison, July 19, 1789; Conway, 127-28.)

1184

Rowland, ii, 308.

1185

Elliott, iii, 29-34.

1186

Elliott, iii, 34-35.

1187

Grigsby, i, 99.

1188

Those who supported the Constitution were called "Federalists" and its opponents "Anti-Federalists"; but, for sake of clearness, the terms "Constitutionalists" and "Anti-Constitutionalists" are employed in these chapters.

1189

Madison to Washington, June 4, 1788; Writings: Hunt, v, footnote to 123-24.

1190

Grigsby, i, footnote to 46.

1191

Grigsby, i, 101-02. Scenes of a similar character occurred several times in both Senate and House between 1900 and 1911, when one of our elder statesmen, who plainly was nearing the end of life, rose to speak. More than one notable contest, during that decade, was decided by the sympathetic votes of aged friends who answered the call of long years of affection.

1192

Elliott, iii, 35-41.

1193

See infra, chap, III; also Grigsby, i, 105-06.

1194

Ib., 106-09.

1195

Elliott, iii, 41-43.

1196

Elliott, iii, 44. The word "revolution" is printed "resolution" in Elliott's Debates. This is a good example of the inaccuracy of Elliott's reprint of Robertson's stenographic report. In Robertson's Debates, published in 1805, the word is correctly printed "revolution." I have cited Elliott only because it is accessible. Even Robertson's report is admittedly meager and unsatisfactory; all the more, therefore, is it to be regretted that Elliott's reprint should be so inaccurate.

1197

At this point the reporter, unable to follow Henry's speech, notes that he "strongly and pathetically expatiated on the probability of the President's enslaving America and the horrid consequences that must result." (Elliott, iii, 60.)

1198

Henry had not heard of the Constitutionalists' bargain with Hancock in Massachusetts.

1199

Elliott, iii, 43-64.

1200

General Posey, a Revolutionary officer, who was for the Constitution, afterwards said that Henry's speech made him believe that the Constitution would destroy liberty. Another intelligent man who heard Henry's speech said that when the great orator pictured the President at the head of the army, he felt his own wrists for the shackles, and that his place in the gallery suddenly seemed like a dungeon. (Grigsby, i, 118-19.)

1201

Grigsby, i, 121.

1202

Elliott, iii, 64-86. In the debate, much was made of this famous case. Yet Philips was not executed under the provisions of the law Randolph referred to. When arrested, he was indicted, tried, and convicted in the General Court; and he was hanged by sentence of the court, December 4, 1778.

Although, at that time, Randolph was Attorney-General of Virginia and actually prosecuted the case; and although Henry was Governor and ordered the arrest of Philips (Henry, i, 611-13), yet, ten years later, both had forgotten the facts, and Randolph charged, and Henry in reply admitted, that Philips had been executed under the bill of attainder without trial. (Jefferson to Wirt, Oct. 14, 1814; Works: Ford, xi, 407.) The bill of attainder was drawn by Jefferson. It appears in ib., ii, 330-36.

1203

Again, Randolph's speech was marred by the note of personal explanation that pervaded it. "The rectitude of my intentions"; "ambition and popularity are no objects with me"; "I expect, in the course of a year, to retire to that private station which I most sincerely and cordially prefer to all others," – such expressions gave to his otherwise aggressive and very able appeal a defensive tone.

1204

Grigsby, i, 130. Madison's apparel at this Convention was as ornate as his opinions were, in his opponents' eyes, "aristocratic."

1205

Elliott, iii, 86. See entire speech, ib., 86-96.

1206

Bushrod Washington to Washington, June 6, 1788; Writings: Sparks, ix, 378. But Madison gave Henry an opening through which that veteran orator drove like a troop of horse, as far as practical and momentary effect was concerned. Madison described the new government as partly National and partly Federal. (Elliott, iii, 94; and see Henry's use of this, ib., 171; also infra.)

1207

Elliott, iii, 97-103.

1208

Elliott, iii, 104-14.

1209

Elliott, iii, 114.

1210

Ib., 114-28.

1211

Madison was equaled only by Hamilton in sheer intellectuality, but he was inferior to that colossus in courage and constructive genius.

1212

Ib., 128-37.

1213

Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong. Madison's four famous speeches in this Convention, are properly parts of one comprehensive exposition. (See Madison's own notes for the third of these speeches in Writings: Hunt, v, 148.) Mr. Hunt also prints accurately Robertson's report of the speeches themselves in that volume. They cannot be summarized here, but should be read in full.

1214

See supra, footnote to 393.

1215

Elliott, iii, 137-50.

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 – competitor of Formicola's inn.

1224

Grigsby, i, 151.

1225

Kentucky had fourteen members. On the final vote, the Constitution 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 Pennsylvy line and Big Sandy Creek, the day is our own." (Grayson to Dane, June 4, 1788; Dane MSS., Lib. Cong.) The Constitutionalists 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.

1228

Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a very animated manner expatiated on the evil and pernicious tendency of keeping secret the common proceedings of government." (Ib., 170.)

1229

Grigsby, i, footnote to 157.

1230

Elliott, iii, 150-76.

1231

Lee, while pretending to praise the militia, really condemned it severely; and cited the militia's panic and flight at Guilford Court-House, which lost the battle to the Americans. "Had the line been supported that day," said he, "Cornwallis, instead of surrendering at Yorktown, would have laid down his arms at Guilford." (Elliott, iii, 178.)

1232

Randolph's letter explaining why he had refused to sign the Constitution.

1233

This was the only quarrel of the Convention which threatened serious results. A duel was narrowly averted. Colonel William Cabell, as Henry's friend, called on Randolph that night; but matters were arranged and the tense situation relieved when it was learned, next morning, that no duel would take place. (Grigsby, i, 162-65.)

1234

Elliott, iii, 187-207.

1235

Grigsby, i, 167-68.

1236

Elliott, iii, 207-22.

1237

"When any other member spoke, the members of the audience would, in half an hour, be going out or moving from their seats." (Winston to Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two days' debate, except five; and often spoke several times a day. (Ib., 350.)

1238

Grigsby, i, 176.

1239

Marshall's Account Book. The entry is: "[June] 2 Paid for coat for self 1." Two months earlier Marshall paid "for Nankin for breeches for self 1.16." (Ib., April 1, 1788.) Yet about the same time he spent one pound, nine shillings at a "barbecue."

1240

Grigsby, i, 176.

1241

Marshall had provided for entertaining during the Convention. His Account Book shows the following entry on May 8, 1788: "Paid McDonald for wine 20" (pounds); and "bottles 9/" (shillings). This was the largest quantity of wine Marshall had purchased up to that time.

1242

Marshall's reputation for "eloquence" grew, as we shall see, until his monumental work on the Supreme Bench overshadowed his fame as a public speaker.

1243

Elliott, iii, 222.

1244

Marshall's idea was that government should be honest and efficient; a government by the people, whether good or bad, as a method of popular self-development and progress did not appeal to him as much as excellence in government.

1245

Marshall here referred to the case of Josiah Philips, and fell into the same error as had Randolph, Henry, and others. (See supra, 393, footnote 1.)

1246

Humphrey Marshall, i, 254. Humphrey Marshall finally voted for the Constitution, against the wishes of his constituents. (Scott, 135-38.)

1247

See vol. III of this work.

1248

See entire speech in Elliott, iii, 223-36.

1249

Some of the sentences used in this unprepared speech are similar to those found in the greatest of his opinions as Chief Justice. (See vol. III of this work.)

1250

Grigsby, i, 183-85.

1251

Elliott, iii, 236.

1252

Ib., 236-47.

1253

Ib., 247-62.

1254

Ib., 254.

1255

This caustic reference was to the members of the Convention who had been Tories. (Grigsby, i, 193; Elliott, iii, 269; also Rowland, ii, 240.) As we have seen most of the Tories and Revolutionary soldiers were united for the Constitution. These former enemies were brought together by a common desire for a strong National Government.

1256

Elliott, iii, 262-72.

1257

Ib., 272-73.

1258

Grigsby, i, 194-205. William Grayson was one of the strongest men in Virginia. He became Virginia's first Senator under the Constitution. (See infra, vol. II, chap. II.) He filled and satisfied the public eye of his day as a soldier, scholar, and statesman. And yet he has dropped out of history almost completely. He is one of those rare personalities whom the whims of time and events have so obscured that they are to be seen but dimly through the mists. His character and mind can be measured but vaguely by fragments buried in neglected pages. William Grayson's talents, work, and vanished fame remind one of the fine ability, and all but forgotten career of Sir James Mackintosh.

1259

Elliott, iii, 279.

1260

Elliott, iii, 273-93 (especial passage, 280).

1261

Elliott, iii, 293-305.

1262

Elliott, iii, 319-22; and see chap. II, vol. II, of this work. Although this, like other economic phases of the contest, was of immediate, practical and serious concern to the people, Henry touched upon it only twice thereafter and each time but briefly; and Mason mentioned it only once. This fact is another proof of the small place which this grave part of the economic problem occupied in the minds of the foes of the Constitution, in comparison with that of "liberty" as endangered by a strong National Government.

1263

Elliott, iii, 325. At this time the fears of the Anti-Constitutionalists were principally that the powers given the National Government would "swallow up" the State Governments; and it was not until long afterward that objection was made to the right and power of the National Supreme Court to declare a law of Congress unconstitutional. (See vol. III of this work.)

1264

Ib., 313-28.

1265

Ib., 328-32.

1266

Ib., 332-33.

1267

Elliott, iii, 333-51.

1268

Grigsby, i, 230 and 243.

1269

Ib., 245; Elliott, iii, 251-56. This, the real vote-getting part of Henry's speech, is not reported by Robertson.

1270

Grigsby, i, 245.

1271

Elliott, iii, 356.

1272

Ib., 361-65.

1273

Grigsby, i, 248.

1274

Elliott, iii, 366-410.

1275

Gouverneur Morris from Richmond to Hamilton in New York, June 13, 1788; Hamilton MSS., Lib. Cong.

1276

Madison to Hamilton, June 16, 1788; Hamilton MSS., Lib. Cong.

1277

Lee to Hamilton; Hamilton MSS., Lib. Cong. The first paragraph of Lee's letter to Hamilton shows that the latter was helping his friend financially; for Lee wrote, "God bless you & your efforts to save me from the manifold purse misfortunes which have & continue to oppress me, whenever I attempt to aid human nature. You will do what you think best, & whatever you do I will confirm – Hazard has acted the part of a decided rascal, & if I fail in my right, I may not in personal revenge." (Ib.)

1278

Madison to Washington, June 13, 1788; Writings: Hunt, v, 179 and footnote.

1279

Elliott, iii, 410-12.

1280

Ib., 412-15.

1281

Ib., 415-18.

1282

Elliott, iii, 419-20.

1283

Elliott, iii, 419-21.

1284

Ib., 421-22.

1285

Ib., 422-24.

1286

Henry turned the tide in Marshall's favor in the latter's hard fight for Congress in 1798. (Infra, vol. II, chap. X.)

1287

Elliott, iii, 434.

1288

Elliott, iii, 431. Throughout the entire debate Henry often sounded his loudest alarms on the supreme power of Congress over the ten miles square where the National Capital was to be located; and, indeed, this seems to have been one of the chief sources of popular apprehension. The fact that the people at large looked upon the proposed National Government as something foreign, something akin to the British rule which had been overthrown, stares the student in the face wherever he turns among the records of the Constitutional period. It is so important that it cannot too often be repeated.

Patrick Henry, of course, who was the supreme popular orator of our history and who drew his strength from his perfect knowledge of the public mind and heart, might have been expected to make appeals based on this general fear. But when such men as George Mason and William Grayson, who belonged to Virginia's highest classes and who were carefully educated men of conservative temper, did the same thing, we see how deep and strong was the general feeling against any central National power.

1289

Elliott, iii, 447-49.

1290

Ib., 452-57.

1291

Elliott, iii, 473.

1292

It is exceedingly strange that in the debates on the Constitution in the various State Conventions, so little, comparatively, was made of the debt and the speculations in it. The preciousness of "liberty" and the danger of "monarchy," the security of the former through State sovereignty and the peril of the latter through National Government, received far more attention than did the economic problem.

1293

Elliott, 472-74. And see vol. II, chap. II, of this work.

1294

"The recovery of the British debts can no longer be postponed and there now seems to be a moral certainty that your patrimony will all go to satisfy the unjust debt from your papa to the Hanburys." (Tucker to his stepsons, June 29, 1788, quoted in Conway, 106; and see comment, ib.)

1295

Elliott, iii, 484.

1296

Ib., 491.

1297

Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. This shows the loose management of the Anti-Constitutionalist politicians: for Kentucky had fourteen votes in the Convention, instead of thirteen, as Grayson declared; and so uncertain was the outcome that to omit a single vote in calculating the strength of the contending forces was unpardonable in one who was, and was accounted to be, a leader.

1298

Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong.

1299

Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.

1300

See Grigsby, i, 278-79, for an able and sympathetic account from the point of view of the settler and debtor.

1301

Ib., 280-84; Elliott, iii, 517-21.

1302

Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the popular feeling against a strong National Government that, if the Anti-Constitutionalists had concentrated their attack upon this secret purpose of the leading Constitutionalists to make it such by easy stages, it is more than probable that the Constitution would have been defeated.

1303

Elliott, iii, 524.

1304

His own and his father's lands in Fauquier County were derived through the Fairfax title.

1305

Grigsby, i, 290.

1306

Elliott, iii, 530-39. For Marshall's repetition see ib., 551-62.

1307

Elliott, iii, 539-46.

1308

Grigsby, i, 297.

1309

Virginia judges were, at this period, appointed by the General Assembly. (Constitution, 1776.)

1310

"There are upwards of 4,000 suits now entered on the docket in the General Court; and the number is continually increasing. Where this will end the Lord only knows – should an Act pass to extend the term of the Courts sitting – it is thought that the number of Executors [executions] that would issue … would be too heavy for our government to bear and that such a rapid transfer of Property would altogether stop the movement of our Machine." (Logan and Story, to Stephen Collins, Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.)

1311

This form of argument by asking questions to which the answers must needs be favorable to his contention was peculiarly characteristic of Marshall.

1312

The reporter makes Mason assert the reverse.

1313

It is hard to see how Marshall arrived at this conclusion. But for the fact that Marshall prepared this speech, one would think the reporter erred.

1314

See Marshall's argument in Hite vs. Fairfax, chap, V, supra; and see vol. III of this work.

Randolph made the clearest statement of the whole debate on the Fairfax question: —

"Lord Fairfax … died during the war. In the year 1782, an act passed sequestering all quitrents, then due, in the hands of the persons holding the lands, until the right of descent should be known, and the General Assembly should make final provision therein. This act directed all quitrents, thereafter becoming due, to be paid into the public treasury; so that, with respect to his descendants, this act confiscated the quitrents. In the year 1783, an act passed restoring to the legal representative of the proprietor the quitrents due to him at the time of his death. But in the year 1785 another act passed, by which the inhabitants of the Northern Neck are exonerated and discharged from paying composition and quitrents to the commonwealth." But Randolph then asserted that: "This last act has completely confiscated this property. It is repugnant to no part of the treaty, with respect to the quitrents confiscated by the act of 1782." So, continued he, "I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? I beg the honourable gentleman to lay the objection to his heart." (Elliott, iii, 574-75.)