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

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.)

1315

Elliott, iii, 551-62.

1316

In summarizing Marshall's speech, it is necessary to collect his arguments on any given point, and present them consecutively. In Robertson's (Elliott) report Marshall scatters his points in distracting fashion.

1317

Madison to Hamilton, June 20, 1788; Hamilton MSS., Lib. Cong.

1318

The members of the Convention were carefully watched and each side made, every night, a minute estimate of its votes.

1319

Madison to his father, June 20, 1788; Writings: Hunt, v, footnote to 216.

1320

Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

1321

Ib.

1322

Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

1323

Elliott, iii, 576.

1324

Elliott, iii, 577-80.

1325

Grigsby, i, 300. See Washington's letters to Stephen during the year of Marshall's birth, when Stephen, under Washington, was fighting the French and Indians. (Writings: Ford, i, 227, 322, 332, 360; also Proceedings, Council of War, Oct. 30, 1756; ib., 364-71; in which Colonel Adam Stephen was presiding officer.)

1326

Elliott, iii, 580.

1327

Elliott, iii, 581-82.

1328

Elliott, iii, 585-86.

1329

"Virginia is the only instance among the ratifying states in which the Politics of the Legislature are at variance with the sense of the people, expressed by their Representatives in Convention." (Madison to Washington, Nov. 5, 1788; Writings: Hunt, v, 302.)

1330

Grigsby, i, 307.

1331

The two amazing speeches which Henry made that day should be taken together. While both were inspired by what happened on the floor, yet they are in reality one. The reports give no idea of the tremendous effect which those who heard Henry tell us these speeches had.

1332

Grigsby, i, 307-08.

1333

Henry's amendments were practically the same as those which the Convention finally adopted as recommendations subsequent to ratification instead of previous amendment on which ratification was conditioned.

1334

Elliott, iii, 587-96.

1335

Elliott, iii, 625. This extract is badly mangled. The reporter confesses that he could take only a little of Henry's peroration. Elliott's reprint of Robertson's reports gives scarcely a suggestion of its dramatic appeal. We are indebted to Grigsby's patient work in collecting from eye and ear witnesses first-hand accounts, for a reasonably accurate description of the scene.

1336

Grigsby, i, 316-17; also Wirt, 313; Henry, ii, 370-71; and Conway, 113.

1337

Grigsby, i, 316-17.

1338

Grigsby, i, 317.

1339

Very few of the Constitutionalists wanted any amendments; and Madison sorrowfully offered in Congress the following year those that were reluctantly adopted. See vol. II, chap. II, of this work.

1340

Elliott, iii, 627.

1341

Grigsby, i, 323-29.

1342

Ib., 328.

1343

Ib., 332.

1344

Elliott, iii, 644-49.

1345

Henry, ii, 377. "At least ten members voted, either in disobedience of positive instructions of their constituents, or in defiance of their well known opinions." (Grigsby, i, 41.)

1346

Scott, 235-38.

1347

Elliott, iii, 616. Madison frankly admitted that only the prominence of the framers of the Constitution secured even a consideration of it by many of its warmest friends, much less by the people. "Had the Constitution been framed and recommended by an obscure individual," wrote Madison, "instead of a body possessing public respect and confidence, there cannot be a doubt, that, although it would have stood in the identical words, it would have commanded little attention from those who now admire its wisdom." (Madison to Randolph, Jan. 10, 1788; Writings: Hunt, v, 81.)

1348

Grigsby, i, footnote to 110.

1349

Elliott, iii, 652.

1350

Elliott, iii. 653-63.

1351

Ib., 659-61.

1352

Clinton's letter was not read, however, because all the members of the Legislature had gone to hear Henry's last great speech. (Conway, 112.)

1353

Conway, 114; Henry, ii, 363.

1354

For Mason's resolutions and a careful review of the incident, see Rowland, ii, 274-80.

1355

Henry, ii, 377.

1356

Southern Literary Messenger, i, 332; also quoted in Rowland, ii, 274.

1357

Washington to Pinckney, June 28, 1788; Writings: Ford, xi, 285.

1358

Washington to Jefferson, Aug. 31, 1788; ib., 321.