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

1113

Hamilton to Madison, May 19, 1788; Works: Lodge, ix, 430. See also ib., 432.

1114

Knox to King, June 19, 1788; King, i, 335.

1115

Hill to Thatcher, Jan. 1, 1788; Hist. Mag. (2d Series), vi, 261.

1116

King to Madison, May 25, 1788; King, i, 329.

1117

Hamilton to Madison, June 27, 1788; Works: Lodge, ix, 436. Virginia had ratified the Constitution two days before Hamilton wrote this letter, but the news did not reach New York until long afterward.

1118

Hamilton to Madison, June 8, 1788; Works: Lodge, ix, 432-34.

1119

Grigsby, i, 8. About three eighths of Virginia's population were slaves valued at many millions of dollars.

1120

Grigsby, i, footnote to 50; also 32; and see examples given by Judge Scott, in Scott, 235-38.

1121

Grigsby, i, footnote to 36; and see 29, 62, 339.

1122

Henry, ii, 339; and Rowland, ii, 223 et seq.

1123

Rives, ii, 549.

1124

Randolph to the Speaker of the House of Delegates, Oct. 10, 1787; Elliott, i, 482-91; also Ford: P. on C., 261-76.

1125

Randolph to Page and others, Dec. 2, 1787; American Museum, iii, 61 et seq.

1126

Ib.

1127

Lee to Randolph, Oct. 16, 1787; Elliott, i, 503. Upon the publication of this correspondence a young Richmond attorney, Spencer Roane, the son-in-law of Patrick Henry, in an article signed "Plain Dealer," published in the Virginia Gazette, attacked Randolph for inconsistency. "Good God! How can the first magistrate and father of a pure republican government … before his proposed plan of amendment has been determined upon, declare that he will accept a Constitution which is to beget a monarchy or an aristocracy?.. Can he foretell future events? How else can he at this time discover what the 'spirit of America' is?.. How far will this principle carry him? Why, … if the dominion of Shays, instead of that of the new Constitution, should be generally accepted, and become 'the spirit of America,' his Excellency would turn Shayite." (Plain Dealer to Randolph, Feb. 13, 1788; Ford: Essays on the Constitution, 385; also Branch Hist. Papers, 47.) Roane's letter is important as the first expression of his hostility to the Constitution. He was to become the determined enemy of Marshall; and, as the ablest judge of the Virginia Court of Appeals, the chief judicial foe of Marshall's Nationalism. (See vol. III of this work.)

1128

"The importunities of some to me in public and private are designed to throw me unequivocally and without condition, into the opposition." (Randolph to Madison, Feb. 29, 1788; Conway, 101.)

1129

Washington to Randolph, Jan. 8, 1788; Writings: Ford, xi, 204-06.

1130

Madison to Randolph, Jan. 10, 1788; Writings: Hunt, v, 79-84; and see same to same, Jan. 20, 1788 (ib., 86-88); and March 3, 1788 (ib., 113-14).

1131

"If he [Randolph] approves it at all, he will do it feebly." (Washington to Lafayette, April 28, 1788; Writings: Ford, xi, 255; and see Madison to Jefferson, April 22, 1788; Writings: Hunt, v, 121.)

1132

Randolph to Madison, Feb. 29, 1788; quoted in Conway, 101.

1133

"Randolph was still looked upon as an Anti-Federalist by the uninitiated." But his "position … was evidently no secret to Washington." (Rowland, ii, 210. See also ib., 225, 227, 231.)

1134

Ib.

1135

Randolph to Madison, Feb. 29, 1788; Conway, 101.

1136

Scott, 160.

1137

Washington to Carter, Dec. 14, 1787; Writings: Ford, xi, footnote to 210.

1138

Smith to Madison, June 12, 1788; Rives, ii, footnote to p. 544.

1139

Ib. "The Baptist interest … are highly incensed by Henry's opinions and public speeches." (Randolph to Madison, Feb. 29, 1788; Conway, 101.)

1140

Smith to Madison, June 12, 1788; Rives, ii, 544.

1141

Washington to Hamilton, Nov. 10, 1787; Writings: Ford, xi, footnote to p. 181.

1142

Washington to Trumbull, Feb. 5, 1788; Writings: Ford, 212. From the first Washington attributed much of the opposition throughout the country to the fact that popular leaders believed that the new National Government would lessen their importance in their respective States. "The governors elect or to be elected, the legislators, with a long tribe of others whose political importance will be lessened if not annihilated" were, said Washington, against a strong central Government. (Washington to Knox, Feb. 3, 1787; Sparks, ix, 230; and see Graydon, 340.)

1143

Washington to Lincoln, April 2, 1788; ib., xi, footnote to 239-40.

1144

"Letters of a Federal Farmer," no. 3; Ford: P. on C., 301.

1145

Ib., no. 5, 319.

1146

Washington to Armstrong, April 25, 1788; Writings: Ford, xi, 252; and to Petit, Aug. 16, 1788; ib., 300.

1147

Madison to Jefferson, April 22, 1788; Writings: Hunt, v, 120-22.

1148

Grigsby, i, 34-35; and footnote to 49.

1149

Grigsby, i, 64-66; and Elliott, iii, 1.

1150

Rowland, ii, 222.

1151

Henry, ii, 345. So angered were the Anti-Constitutionalists that they would not correct or revise Robertson's reports of their speeches. (Ib.)

1152

Elliott, iii, 1.

1153

Ib., 5-6; also, Journal of the Convention, 7-11.

1154

Grigsby, i, 69-70. In the descriptions of the dress, manners, and appearance of those who took part in the debate, Grigsby's account has been followed. Grigsby took infinite pains and gave many years to the gathering and verifying of data on these picturesque subjects; he was personally intimate with a large number of the immediate descendants of the members of the Convention and with a few who were eye-witnesses; and his reconstruction of the scenes in the Convention is believed to be entirely accurate.

1155

Elliott, iii, 3.

1156

Mason's clause-to-clause resolve was, "contrary to his expectations, concurred in by the other side." (Madison to Washington, June 4, 1788; Writings: Hunt, v, footnote to 124.) And see Washington's gleeful report to the New York Constitutionalists of Mason's error: "This [Mason's resolve] was as unexpected as acceptable to the federalists, and their ready acquiescence seems to have somewhat startled the opposite side for fear they had committed themselves." (Washington to Jay, June 8, 1788; Writings: Ford, xi, 271.)

1157

Elliott, iii, 4.

1158

Grigsby, i, 77.

1159

For a discussion of this tactical blunder of the opponents of the Constitution, see Grigsby, i, 72.

1160

Elliott, iii, 4.

1161

Grigsby, i, 75.

1162

Elliott, iii, 6.

1163

Ib.

1164

Grigsby, i, 77.

1165

Ib., 79.

1166

Ib., 78, 79, 140, 141, 246, 247.

1167

Elliott, iii, 7-21.

1168

Grigsby, i, 76.

1169

Elliott, iii, 21-23.

1170

Grigsby, i, 83-84.

1171

Madison was the real designer of the Virginia plan. (Rives, ii, chap. xxvii.)

1172

This was the point Washington had made to Randolph. It is interesting that, throughout the debate, Randolph, over and over again, used almost the exact language of Washington's letter.

1173

Elliott, iii, 23-29. Randolph's speech was apologetic for his change of heart. He was not "a candidate for popularity": he had "satisfied his conscience," etc.

1174

Madison to Washington, June 4, 1788; Writings: Hunt, v, 124.

1175

Jefferson to Short, Sept. 20, 1788; quoting a private letter from Virginia of July 12; Works: Ford, v, 431.

1176

Washington to Jay, June 8, 1788; Writings: Ford, xi, 271.

1177

Bland to Lee, June 13, 1788; Rowland, ii, 243-44. Evidently the opposition was slow to believe that Randolph had irrevocably deserted them; for Bland's letter was not written until Randolph had made his fourth extended speech ten days later.

1178

Scott, 160.

1179

Washington to Jay, June 8, 1788; Writings: Ford, xi, 271.

1180

From this delay Randolph's enemies have charged that his letter to Clinton was not posted in time. Much as Randolph had to answer for, this charge is unjust. Letters between Richmond and New York sometimes were two or three months on the way. (See supra, chap. VII.)

1181

Clinton to Randolph, May 8, 1788; Conway, 110-12.

1182

Clinton to Randolph, May 8, 1788; Conway, 110-12; Henry, ii, 363; Rowland, ii, 276-79; and see infra, chap. XII.

1183

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