The Life of John Marshall Volume I Part 48

[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 Const.i.tutionalists' bargain with Hanc.o.c.k in Ma.s.sachusetts.

[1199] Elliott, iii, 43-64.

[1200] General Posey, a Revolutionary officer, who was for the Const.i.tution, afterwards said that Henry's speech made him believe that the Const.i.tution 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 rect.i.tude 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 Was.h.i.+ngton to Was.h.i.+ngton, 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.

CHAPTER XI

THE SUPREME DEBATE

There will undoubtedly be a greater weight of abilities against the adoption in this convention than in any other state.

(Was.h.i.+ngton.)

What are the objects of the National Government? To protect the United States and to promote the general welfare. (Marshall, in his first debate.)

Now appeared the practical political managers from other States. From Sat.u.r.day afternoon until Monday morning there was great activity in both camps. The politicians of each side met in secret conference to plan the operations of the coming week and to devise ways and means of getting votes. For the Const.i.tutionalists, Gouverneur Morris was on the ground from New York;[1216] Robert Morris and probably James Wilson, both from Philadelphia, had been in Virginia at the time of the elections and the former remained for the Convention.[1217] During the second week the Philadelphia financier writes Gates from Richmond, lamenting "the depredations on my purse," but "inclined to think the Const.i.tution will be adopted by Virginia."[1218]

For the opposition, Oswald, publisher of the "Independent Gazetteer,"

came on from Philadelphia and arrived in Richmond at the close of the first week's debate. He at once went into secret conference with Henry, Mason, and the other Anti-Const.i.tutionalist leaders. Madison reports to Hamilton that "Oswald of Phil^a came here on Sat.u.r.day; and he has closet interviews with the leaders of the opposition."[1219] By the same mail Grayson advises the general Anti-Const.i.tutionalist headquarters in New York that he is "sorry ... that our affairs in the convention are suspended by a hair." Randolph's conduct "has not injured us," writes Grayson, thus proving how poorly the Anti-Const.i.tutionalists estimated the real situation. But they were practical enough to know that "there are seven or eight dubious characters whose opinions are not known" and upon whose decisions the fate of the Const.i.tution "will ultimately depend." Grayson cautions Lamb not to let this get into the newspapers.[1220]

Just what was devised and decided by the leaders of both sides in these behind-the-doors meetings and what methods were used outside the Convention hall to influence votes, there is no means of learning exactly; though "the opposition" committee seems to have been occupied chiefly in drawing amendments.[1221] But the frequent references, particularly of the Const.i.tutionalist speakers on the floor, to improper conduct of their adversaries "out of doors" show that both sides were using every means known to the politics of the day to secure support. In the debate itself Henry certainly was making headway.[1222]

On Monday, Henry and Mason made a dramatic entrance into the Convention hall. Walking arm in arm from their quarters in "The Swan,"[1223] they stopped on the steps at the doors of the New Academy and conferred earnestly for some minutes; so great was the throng that the two Anti-Const.i.tutionalist chieftains made their way to their seats with great difficulty.[1224] When Henry rose to go on with his speech, the plan decided on during Sunday quickly was revealed. The great prize for which both sides now were fighting was the votes from Kentucky.[1225]

Henry held up before them the near forfeiture to the Spanish of our right to navigate the Mississippi.[1226] This, he said, was the work of seven Northern States; but under the Confederation they had been thwarted in their fell purpose by six Southern States; and the Mississippi still remained our own. But if the Const.i.tution was adopted, what would happen? The Senate would be controlled by those same Northern States that had nearly succeeded in surrendering the great waterway and the West and South would surely be deprived of that invaluable commercial outlet. He asked the members of Congress who were in the Convention to tell the facts about the Mississippi business. Jefferson, he avowed, had counseled Virginia to "reject this government."[1227]

Henry answered the Const.i.tutionalists' prophecy of foreign war, ridiculed danger from the Indians, proved that the Const.i.tution would not pay Virginia's debts; and, in characteristic fas.h.i.+on, ranged at large over the field. The Const.i.tution, he a.s.serted, would "operate like an ambuscade ... destroy the state governments ... swallow the liberties of the people without" warning. "How are our debts to be discharged unless taxes are increased?" asked he; and demonstrated that under the Const.i.tution taxes surely would be made heavier. Time and again he warned the Convention against the loss of liberty: "When the deprivation of our liberty was attempted, what did ... the genius of Virginia tell us? '_Sell all and purchase liberty!_'... Republican maxims,... and the genius of Virginia landed you safe on the sh.o.r.e of freedom."

Once more he praised the British form of government--an oversight which a hawk-eyed young member of the Convention, John Marshall, was soon to use against him. Henry painted in darkest colors the secrecy of the Federal Convention. "_Look at us--hear our transactions!_--if this had been the language of the Federal Convention," there would have been no Const.i.tution, he a.s.serted, and with entire accuracy. Yet, the Const.i.tution itself authorized Congress to keep its proceedings as secret as those of the Const.i.tution's makers had been kept: "The transactions of Congress," said Henry, "may be concealed a century from the public."[1228]

Seizing Madison's description of the new Government as partly National and partly Federal, Henry brought to bear all his power of satire. He was "amused" at Madison's "treatise of political anatomy.... In the brain it is national; the stamina are federal; some limbs are federal, others national." Absurd! The truth was, said Henry, that the Const.i.tution provided for "a great consolidation of government." Why not abolish Virginia's Legislature and be done with it? This National Government would do what it liked with Virginia.

As to the plan of ratifying first and amending afterwards, Henry declared himself "at a loss what to say. You agree to bind yourselves hand and foot--for the sake of what? Of being unbound. You go into a dungeon--for what? To get out.... My anxiety and fears are great lest America by the adoption of this system [the Const.i.tution], should be cast into a fathomless bottom."

Tradition has it that during this speech Henry, having frozen his hearers' blood by a terrific description of lost "liberty," with one of his sudden turns set both Convention and spectators into roars of laughter by remarking with a grimace, and as an aside, "why, _they'll free your n.i.g.g.e.rs_."[1229] And then, with one of those lightning changes of genius, which Henry alone could make, he solemnly exclaimed, "I look on that paper [the Const.i.tution] as the most fatal plan that could possibly be conceived to enslave a free people."[1230]

Lee, in reply, spoke of the lobbying going on outside the Convention.

"Much is said by gentlemen out of doors," exclaimed Lee; "they ought to urge all their objections here." He taunted Henry, who had praised the militia, with not having been himself a soldier. "I saw what the honorable gentleman did not see," cried Lee, "our men fight with the troops of that King whom he so much admires."[1231]

When the hot-blooded young soldier had finished his aggressive speech, Randolph could no longer restrain himself. Henry's bold challenge of Randolph's change of front had cut that proud and sensitive nature to the heart. "I disdain," thundered he, "his aspersions and his insinuations." They were "warranted by no principle of parliamentary decency, nor compatible with the least shadow of friends.h.i.+p; and if our friends.h.i.+p must fall, _let it fall, like Lucifer, never to rise again_!"

It was not to answer Henry that he spoke, snarled Randolph, "but to satisfy this respectable audience." Randolph then explained his conduct, reading part of the letter[1232] that had caused all the trouble, and dramatically throwing the letter on the clerk's table, cried "that it might lie there for _the inspection of the curious and malicious_."[1233] Randolph spoke for the remainder of the day and consumed most of the next forenoon.[1234]

No soldier had yet spoken for the Anti-Const.i.tutionalists; and it perhaps was Lee's fling at Henry that now called a Revolutionary officer to his feet against the Const.i.tution. A tall, stiff, raw-boned young man of thirty years arose. Poorly educated, slow in his mental processes,[1235] James Monroe made a long, dull, and cloudy speech, finally declaring of the Const.i.tution, "I think it a dangerous government"; and asking "why ... this haste--this wild precipitation?"

Long as Monroe's speech was, he reminded the Convention that he had "not yet said all that I wish upon the subject" and that he would return to the charge later on.[1236]

Monroe did not help or hurt either side except, perhaps, by showing the members that all the Revolutionary veterans were not for the Const.i.tution. Neither members nor spectators paid much attention to him, though this was no reflection on Monroe, for the Convention did not listen with patience to many speakers except Henry. When Henry spoke, every member was in his seat and the galleries were packed. But only the most picturesque of the other speakers could hold the audience for longer than half an hour; generally members walked about and the spectators were absent except when Henry took the floor.[1237]

As usual, the Const.i.tutionalists were ready with their counter-stroke.

Wythe in the chair recognized a tall, ungainly young man of thirty-two.

He was badly dressed in a loose, summer costume, and his blazing black eyes and unkempt raven hair made him look more like a poet or an artist than a lawyer or statesman.[1238] He had bought a new coat the day the Convention met; but it was a most inexpensive addition to his raiment, for it cost but one pound, Virginia currency, then greatly depreciated.[1239] He probably was the best liked of all the members of the Convention. Sociable to extreme good-fellows.h.i.+p, "his habits," says Grigsby, "were convivial almost to excess";[1240] and it is more than likely that, considering the times, these habits in his intimate social intercourse with his fellow members helped to get more votes than his arguments on the floor, of which he now was to make the first.[1241] His four years' record as a soldier was as bright and clean as that of any man from any State who had fought under Was.h.i.+ngton.

So when John Marshall began to speak, he was listened to with the ears of affection; and any point the opposition had made by the fact that Monroe the soldier had spoken against the Const.i.tution was turned by Marshall's appearance even before he had uttered a word. The young lawyer was also accounted an "orator" at this time,[1242] a fact which added to the interest of his fellow members in his speech.

The question, Marshall said, was "whether democracy or despotism be most eligible."[1243] He was sure that the framers and supporters of the Const.i.tution "intend the establishment and security of the former"; they are "firm friends of the liberty and the rights of mankind." That was why they were for the Const.i.tution. "We, sir, idolize democracy." The Const.i.tution was, said he, the "best means of protecting liberty." The opposition had praised monarchy, but, deftly avowed Marshall, "We prefer this system to any monarchy"; for it provides for "a well regulated democracy."

He agreed with Henry that maxims should be observed; they were especially "essential to a democracy." But, "what are the ... maxims of democracy?... A strict observance of justice and public faith, and a steady adherence to virtue. These, Sir, are the principles of a good government,"[1244] declared the young Richmond Const.i.tutionalist.

"No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith," cried Marshall. "Would to Heaven," he exclaimed, "that these principles had been observed under the present government [the Confederation]." He was thinking now of his experience in the Legislature and appealing to the honesty of the Convention. If the principles of justice and good faith had been observed, continued he, "the friends of liberty would not be so willing now to part with it [the Confederation]."

Could Virginians themselves boast that their own Government was based on justice? "Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by an act of a.s.sembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land?"[1245] Skillfully he turned against Henry the latter's excuse for the execution of Philips, and dramatically asked: "Where is our safety, when we are told that this act was justifiable because the person was not a Socrates?... Shall it be a maxim that a man shall be deprived of his life without the benefit of the law?"