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 ofbeing overpowered in a good cause. Yet I will be a peaceable citizen. (Henry, in his last debate.)
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 ofbeing 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, ifthe 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 toanswer 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; andthe 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 ofrebel.... As this government [Constitution]stands, I despise and abhor it," cried the unrivaled orator of the people.[1307]
Up now rose John Marshall, whom the Constitutionalist leaders had agreed upon for the critical task of defending the Judiciary article. Marshall, as we have seen, had begun the practice of law in Richmond only five years before; and during much of this period his time and attention had been taken by his duties as a delegate in the Legislature. Yet his intellectual strength, the power of his personality, his likableness, and all the qualities of his mind and character had so impressed every one that, by common consent, he was the man for the hour and the work at hand. And Marshall had carefully prepared his speech.[1308]
The Judiciary provided by the Constitution was, said Marshall "a great improvement on that system from which we are now departing. Here [in the Constitution] are tribunals appointed forthe decision of controversieswhich were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses." The National Judiciary deserved the support of all unless it was "defectively organized and so constructed as to injure, instead of accommodate, the convenience of the people."
After the "fair and able" discussion by its supporters, Marshall supposed that its opponents "would be convinced of the impropriety of some of their objections. But," he lamented, "they still continue the same opposition." And what was theircomplaint? This: That National Courts would not be as fair and impartial as State Courts.
But why not? asked Marshall. Was it because of their tenure of office or the method of choosing them? "What is it that makes us trust our [State] judges? Their independence in office and manner of appointment."[1309]But, under the Constitution, are not National judges "chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more independent? If so," will they not be equally fair and impartial? "If there be as much wisdom and knowledge in the United States as in a particular state," will they "not be equally exercised in the selection of [National] judges?" Such were the questions which Marshall poured upon the Anti-Constitutionalists.
The kernel of the objection to National Courts was, declared Marshall, "a belief that there will not be a fair trial had in those courts." But it was plain, he argued, that "we are as secure there as anywhere else. What mischief results from some causes being tried there [in the National Courts]?" Independent judges "wisely appointed ... will never countenance an unfair trial." Assuming this to be true "what are the subjects of the jurisdiction" of National Courts? To Mason's objection that Congress could create any number of inferior courts it might deem necessary, Marshall replied that he had supposed that those who feared Congress would say that "no inferior courts" would be established, "but that weshould be dragged to the centre of the Union." On the contrary, the greater the number of these inferior courts, the less danger "of being dragged to the centre of the United States."
Mason's point, that the jurisdiction of National Courts would extend to all cases, was absurd, argued Marshall. For "has the government of the United States power to make laws on every subject?... laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can" Congress "go beyond the delegated powers?" Certainly not. Here Marshall stated the doctrine which, fifteen years later, he was to announce from the Supreme Bench:—
"If," he asserted, "they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [National] judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction.They would declare it void.... To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."
The National Courts would not supplant the State tribunals. The Constitution did not "exclude state courts" from those cases which they now possess. "They have concurrent jurisdiction with the Federal courts in those cases in which the latter have cognizance," expounded the nascent jurist. "Are not controversies respecting lands claimed under the grants of different states the only controversies betweencitizens of the same state which the Federal Judiciary can take [exclusive] cognizance of?"
The work of the National Courts would make the State Courts more efficient because it would relieve them of a mass of business of which they were not able to dispose. "Does not every gentleman know that the causes in our [State] courts are more numerous than they can decide?" asked Marshall. "Look at the dockets," he exclaimed. "You will find them crowded with suits which the life of man will not see determined.[1310]If some of these suits be carried to other courts, will it be wrong? They will still have business enough."
How vain and fanciful, argued Marshall, the contention that National judges would screen "officers of the [National] government from merited punishment." Does anybody really believe that "the Federal sheriff will go into a poor man's house and beat him or abuse his family and the Federal court will protect him," as Mason and Henry had said would be the case? Even if a law should be passed authorizing "such great insults to the people ... it would be void," declared Marshall. Thus he stated for the second time the doctrine which he was, from the Supreme Bench, to put beyond controversy.
Why, asked Marshall, "discriminate [in the Constitution] between ... chancery, admiralty and the common law" as the Anti-Constitutionalists insisted upon doing? "Why not leave it to Congress? They ... would not wantonly infringe your rights." If they did, they would "render themselves hateful to the people at large." Therefore, "something may be left to the legislature [Congress] freely chosen by ourselves from among ourselves, who are to share the burdens imposed upon the community and who can be changed at our pleasure. Where power may be trusted and there is no motive to abuse it, it ... is as well to leave it undetermined as to fix it in the Constitution."
These sentences had prophecy in them. Indeed, they were to be repeated almost without change by the same man that now uttered them in debate, when he should ascend to the ultimate place of official interpretation of our fundamental law. While Hamilton's immortal state papers profoundly impressed Marshall, as we shall see, they were not, as many have supposed, the source of his convictions. In the Virginia Constitutional Convention of 1788 Marshall stated in debate the elements of most of his immortal Nationalist opinions.
But there was one exception. As to "disputes betweena state and the citizens of another state," Marshall hoped "that no gentleman will think that a state will be called at the bar of a Federal court.... It is not rational to suppose that the Sovereign power should be dragged before a court. The intent is to enable states to recover claims of individuals residing in other states." If there were partiality inthis—"if an individual cannot ... obtain judgment against a state, though he may be sued by a state"—it was a difficulty which could "not be avoided"; let the claimant apply to the State Legislature for relief.
The objection to suits in the National Courts between citizens of different States went "too far," contended Marshall. Such actions "may not in general be absolutely necessary," but surely in some such cases "the citizen ... ought to be able to recur to this [National] tribunal." What harm could it do? "Will he get more than justice there? What has he to get? Justice! Shall we object to this because the citizen of another state can obtain justice without applying to our state courts?" Indeed, "it may be necessary" in causes affected by "the laws and regulations of commerce" and "in cases of debt and some other controversies."... "In claims for land it is not necessary—but it is not dangerous."
These suits between citizens of different States "will be instituted in the state where the defendant resides, and nowhere else," expounded the youthful interpreter of the Constitution; and the case "will be determined by the laws of the state where the contract was made. According to those laws, and those only, can it be decided." That was no "novelty," but "a principle" long recognized in the jurisprudence of Virginia. "The laws which governed the contract at its formation, govern it in its decision." National Courts, in such controversies, would "preserve the peace of the Union," because if courts of different States should not give justice between citizens ofthose States, the result would be "disputes between the states." Also the jurisdiction of National Courts in "controversies between a state and a foreign state ... will be the means of preventing disputes with foreign nations"; for since "the previous consent of the parties is necessary ... each party will acquiesce."
As to "the exclusion of trial by jury, in this case," Marshall asked, "Does the wordcourtonly mean the judges? Does not the determination of the jury necessarily lead to the judgment of the court? Is there anything" in the Constitution "which gives the [National] judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts." If "a court has cognizance of facts," it certainly "can make inquiry by a jury," dryly observed Marshall.
He ridiculed Mason's and Henry's statement that juries, in the ten miles square which was to be the seat of the National Government, would be "mere tools of parties with which he would not trust his person or property." "What!" exclaimed Marshall, "Will no one stay there but the tools and officers of the government?... Will there not be independent merchants and respectable gentlemen of fortune ... worthy farmers and mechanics" in the National Capital just as there were in Richmond? And "will the officers of the government become improper to be on a jury? What is it to the government whether this man or that man succeeds? It is all one thing."
As to jury trial not being guaranteed by theNational Constitution in civil cases, neither did Virginia's Constitution, said Marshall, "direct trials by jury"; and the provision was "merely recommendatory" concerning jury trials in the Bill of Rights, which, as everybody knew, was no part of the State Constitution. "Have you a jury trial when a judgment is obtained on a replevin bond or by default?" Or "when a motion is made by the Commonwealth against an individual ... or by one joint obligor against another, to recover sums paid as security." Of course not! "Yet they are all civil cases.... The Legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient." And Congress would do the same, he reassured the Convention.
Mason's objection, that the right to challenge jurors was not guaranteed in the Constitution, was trivial, said Marshall. Did Virginia's Constitution make such a guaranty? Did the British Constitution do so by any express provision? Was jury challenge secured by Magna Charta? Or by the Bill of Rights?[1311]Every Virginian knew that they were not. "This privilege is founded in their [English people's] laws," Marshall reminded the Convention. So why insert it in the American Constitution?
Thus the inhabitants of the Northern Neck or anybody else were not in danger on that score. Neither were they placed in jeopardy in any other way by the Constitution. Here Marshall made a curious argument. Mason, he said, had "acknowledged that there was no complete title[1312][in Fairfax].... Was he [Mason] not satisfied that the right of the legal representatives of the proprietor [to collect quitrents] did not exist at the time he mentioned [the date of the Treaty of Peace]? If so, it cannot exist now," declared Marshall. "I trust those who come from that quarter [the Northern Neck] will not be intimidated on this account in voting on this question" he pleaded; for let them remember that there was "a law passed in 1782 [sequestration of quitrents] which secured this."
Let the "many poor men" who Mason had said might "be harassed by the representatives of Lord Fairfax" rest assured on that point; for "if he [Fairfax] has no right," they could not be disturbed. "If he has this right [to collect quitrents] and comes to Virginia, what laws will his claims be determined by?" By Virginia's laws. "By what tribunals will they be determined? By our state courts."[1313]So the "poor man" who was "unjustly prosecuted" would "be abundantly protected and satisfied by the temper of his neighbors."[1314]
The truth was, said Marshall, that justice would be done in all cases by both National and State Courts. Laws would not be "tyrannically executed" as the opposition feared; the "independency of your judges" would prevent that. "If," he argued, "a law be exercised tyrannically in Virginia, to whom can you trust? To your Judiciary! What security have you for justice? Their independence! Will it not be so in the Federal court?"
Like other objections to the power of Congress and the conduct of National Courts, the criticism that men might be punished for their political opinions was, declared Marshall, groundless and absurd; for, "the good opinion of the people at large must be consulted by their representatives—otherwise mischiefs would be produced which would shake the government to its foundations." Of course, then, he contended, neither Congress nor the courts would abuse their power. The charge that "unjust claims will be made, and the defendant had better pay them than go to the Supreme Court" was unthinkable. Would anybody incur great expense to oppress another? "What will he gain by an unjust demand?Does a claim establish a right? He must bring his witnesses to prove his claim"; otherwise "the expenses must fall on him." Will he take the chances that the injured man will not appear and defend the unjust suit? "Those who know human nature, black as it is," sarcastically observed Marshall, "must know that mankind are too attached to their own interest to run such a risk."
"The Federal Government," exclaimed Marshall, "has no other motive, and has every reason for doing right which the members of our state legislature have. Will a man on the eastern shore be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern shore to have his trial? A government, by doing this, would destroy itself."[1315]
This, in effect, was John Marshall's exposition of the second section of article three of the Constitution. Although Grigsby, whose accuracy on such details is not questioned, says that the speech was prepared, Robertson's report would not indicate that such was the case. The address is wanting in that close-knit continuity of reasoning and in that neatness of thought and expression which were Marshall's peculiar excellence. Like his first debate in the Convention, his speech on the Judiciary is disjointed. A subject is half treated in one part of his remarks and resumed in another.[1316]But he makes hisprincipal points with clearness and power. His argument is based on the independence of the courts as the best guaranty against unjust decisions; the responsibility of Congress to the people as the strongest safeguard against oppressive laws; and the similarity of Virginia's Constitution and Courts to the National Constitution and Courts as proof of the security, fairness, and justice of the National Judiciary.
Marshall's effort really closed the case for the Constitution on the Judiciary. That night Madison wrote to Hamilton that "a great effort is making" against the Judiciary. "The retrospection to cases antecedent to the Constitution, such as British debts and an apprehended revival of Fairfax—Indiana, Vandalia, &c., claims are also brought into view in all the terrific colours which imagination can give them.... Delay & an adjournment will be tried if the adverse party find their numbers inferior.... At present it is calculated that we still retain a majority of 3 or 4; and if we can weather the storm agst." the Judiciary, "I shall hold the danger to be pretty well over. There is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated."[1317]
Marshall's speech alarmed the opposition, and Grayson used all his learning, wit, and cleverness in an attempt to break its force. Randolph replied. Thus the second week closed. Neither side was certain of the exact number of votes it had, though every member was observed with the politician'sanxiety and care.[1318]The Constitutionalists had the greater confidence. Madison wrote his father that "The calculations on different sides do not accord;... I think however, the friends of the Constitution are most confident of superiority.... It is not probable that many proselytes will be made on either side."[1319]
On Sunday Madison made his weekly report to Hamilton: "The Judiciary Department has been on the anvil for several days; and I presume will still be a further subject of disquisition. The attacks on it have apparently made less impression than was feared. But they may be secretly felt by particular interests that would not make the acknowledgment, and wḍchuse to ground their vote agṣtthe Constitution on other motives."[1320]
The Anti-Constitutionalists were becoming desperate. If they could not amend the Constitution as a condition of ratifying it, their game now was either an adjournment or a delay until the Legislature, scheduled to meet on the following Monday and known to be, in the main, opposed to the Constitution, should afford them relief.
If these expedients should fail, there was open talk of secession.[1321]The Constitutionalists arranged for the utmost dispatch and planned to "withhold, by a studied fairness in every step on the side of theConstitution, every pretext for rash experiments." They hoped to avoid previous amendment by proposing "to preface the ratification with some plain & general matters that cannot effect the validity of the" Constitution. They felt that "these expedients are rendered prudent by the nice balance of members, and the scruples entertained by some who are in general well affected." But whether these devices "will secure us a majority," wrote Madison, "I dare not positively to declare."
So small was their expected majority likely to be, that the Constitutionalists felt that "ordinary casualties ... may vary the result." They were exceedingly alarmed over the coming to town of the members of the Legislature who "as individuals ... may have some influence and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in Convention."[1322]
From the adjournment on Saturday until the Convention again assembled on the following Monday, June 23, the opposition decided that something more must be done to counteract Marshall's exposition of the Judiciary article. For this purpose their leader and strongest men took the floor. The shorthand reporter was not present on this day, but the printer of the debates took notes.[1323]
Nothing so well shows the esteem in which Marshall's ability was held as Patrick Henry's compliment to his young associate. "I have," said Henry, "the highest veneration and respect for the honorable gentleman, and I have experienced his candor on all occasions"; but "in this instance" Henry felt that Marshall was mistaken. "It is not on that paper before you we have to rely.... It is on those who may be appointed under it. It will be an empire of men, and not of laws."
Marshall interrupted Henry to explain that the latter had not clearly understood him as to the trial by jury. Henry responded that "the gentleman's candor, sir, as I informed you before, I have the highest opinion of, and am happy to find he has so far explained what he meant; but, sir, has he mended the matter?" Then Henry enlarged upon what he thought was the Constitution's sacrifice of rights of trial by jury. What would become of this, that, and the other? What would be the end of this contract and that? And "what is to become of thepurchases of the Indians?—those unhappy nations who ... by being made drunk, have given a thousand, nay I might say, ten thousand acres, for the trifling sum of sixpence!" And what of those who owed the British debts?—they will "be ruined by being dragged into Federal courts and the liberty and happiness of our citizens gone, never again to be recovered."[1324]
The Constitutionalists had anticipated that Henry would touch on his hobby, the Indians; and they were ready with an answer far more effective on the votes of the members than any argument, however weighty. Hardly had Henry closed when a giant oldman got upon his feet. For more than thirty years this bluff and ancient veteran had been a soldier. Since 1755 he had been one of the boldest and ablest of Virginia's famous Indian fighters and often had commanded the Virginia rangers that defended the frontier from the savages. His utter fearlessness and tremendous physical strength had made him the terror of the red man, and his name was a household word throughout Virginia as a bulwark against the savages. Throughout the Revolution he had borne himself as a hero. So when Colonel Adam Stephen spoke, his words were sword-thrusts.[1325]
Henry, growled Stephen, "means to frighten us by his bugbears of hobgoblins, his sale of lands to pay taxes, Indian purchases and other horrors that I think I know as much about as he does." Colonel Stephen then described the Indian country, the Indian tribes, and Indian trade. He also knew "of several rich mines of gold and silver in the western country" which would pay the taxes Henry was so worried about. "If the gentleman [Henry] does not like this government, let him go and live among the Indians. I know of several nations that live very happily; and I can furnish him with a vocabulary of their language."[1326]
Nothing can be plainer than that this personal assault on Henry was prearranged; for George Nicholas followed it up with what came near being an open insult. Answering Henry's insinuation about Indian lands being fraudulently purchased, Nicholas retorted, looking directly at Henry, "there are gentlemen who have come by large possessions that it is not easy to account for." This was taken as a reflection on some of Henry's land speculations. The latter felt the sting; for "here Mr. Henry interfered and hoped the honorable gentleman meant nothing personal." Nicholas snapped back, "I mean what I say, sir."
The extremes to which the opposition went in lobbying with members and the nature of their conversation are shown by an acid sentence of Nicholas in this speech. He referred to "an observation I have heard out of doors; which was that, because the New England men wore black stockings and plush breeches, there can be no union with them."
Henry was instantly on his feet when Nicholas finished. He thought the Convention floor "an improper place" to make "personal insinuations, or to wound my private reputation.... As to land matters, I can tell how I came by what I have ... I hold what I hold in right, and in a just manner." Henry was most courteous and dignified in this discussion, disclaiming any intention to offend any one. Nicholas responded that he "meant no personality ... nor ... any resentment." But, said he, "If such conduct meets the contempt of that gentleman [Henry] I can only assure him it meets with an equal degree of contempt from me."
Here the President of the Convention interferedand "hoped the gentlemen would not be personal; that they would proceed to investigate the subject calmly, and in a peaceable manner." Thereupon Nicholas admitted that he had not referred to Henry when he first spoke, but to "those who had taken up large tracts of land in the western country"; Nicholas had not, however, explained this before because he felt that Henry had said some things that one gentleman ought not to say to another. Thus ended the second of the only two instances in Virginia's long and masterful debate which approached a personal quarrel or displayed even the smallest discourtesy.[1327]
The debate now drew swiftly to a close. Excitement ran high. The Anti-Constitutionalists, tense and desperate, threatened forcible opposition to the proposed National Government if it should be established. Mason "dreaded popular resistance" to the Constitution and was "emphatic" in his fears of "the dreadful effects... should the people resist." Gentlemen should pause before deciding "a question which involved such awful consequences." This so aroused Lee that he could "no longer suppress" his "utterance." Much as he liked and admired Mason, Lee asked him "if he has not pursued the very means to bring into action the horrors which he deprecates?"
"Such speeches within these walls, from a character so venerable and estimable," declared Lee, "easily progress into overt acts, among the less thinking and the vicious." Lee implored that the "God of heaven avert from my country the dreadfulcurse!" But, he thundered, "if the madness of some and the vice of others" should arouse popular resistance to the Constitution, the friends of that instrument "will meet the afflicting call"; and he plainly intimated that any uprising of the people against the proposed National Government would be met with arms.[1328]The guns of Sumter were being forged.
On the night of June 23, the Constitutionalists decided to deliver their final assault. They knew that it must be a decisive one. The time had arrived for the meeting of the Legislature which was hostile to the Constitution;[1329]and if the friends of the proposed new Government were to win at all, they must win quickly. A careful poll had shown them that straight-out ratification without amendment of some kind was impossible. So they followed the plan of the Massachusetts Constitutionalists and determined to offer amendments themselves—but amendments merely by way of recommendation and subsequent to ratification, instead of previous amendments as a condition of ratification. The venerable Wythe was chosen to carry out the programme. On Tuesday morning, June 24, Pendleton called to the chair Thomas Mathews, one of the best parliamentarians in the Convention, a stanch Constitutionalist, a veteran of the Revolution, and a popular man.
Instantly Mathews recognized Wythe; for Henry was ready with his amendments, and, had an Anti-Constitutionalist been in the chair, would have been able to offer them before Wythe could move for ratification. Wythe, pale and fatigued, was so agitated that at first he could not speak plainly.[1330]After reviewing the whole subject, he said that to insist on previous amendments might dissolve the Union, whereas all necessary amendments could easily be had after ratification. Wythe then moved the Constitutionalists' resolution for ratification.
In a towering rage, Henry rose for what, outside of the courtroom, was the last great speech of his life.[1331]He felt that he had been unjustly forestalled and that the battle against the Constitution was failing because of the stern and unfair tactics of his foes.[1332]The Constitutionalists admitted, said Henry, that the Constitution was "capitally defective"; yet they proposed to ratify it without first remedying its conceded faults. This was so absurd that he was "sure the gentleman [Wythe] meant nothing but to amuse the committee. I know his candor," said Henry. "His proposal is an idea dreadful to me.... The great body of yeomanry are in decided opposition" to the Constitution.
Henry declared that of his own personal knowledge "nine tenths of the people" in "nineteen counties adjacent to each other" were against the proposed new National Government. The Constitutionalists' plan of "subsequent amendments will not do for men of this cast." And how do the people feel even in the States that had ratified it? Look at Pennsylvania! Only ten thousand out of seventy thousand of her people were represented in the Pennsylvania Convention.
If the Constitution was ratified without previous amendments, Henry declared that he would "have nothing to do with it." He offered the Bill of Rights and amendments which he himself had drawn, proposing to refer them to the other States "for their consideration, previous to its [Constitution's] ratification."[1333]Henry then turned upon the Constitutionalists their own point by declaring that it was their plan of ratification without previous amendments which would endanger the Union.[1334]Randolph followed briefly and Dawson at great length. Madison for the Constitutionalists, and Grayson for the opposition, exerted themselves to the utmost. Nature aided Henry when he closed the day in an appeal such as only the supremely gifted can make.
PATRICK HENRYPATRICK HENRY
"I see," cried Henry, in rapt exaltation, "the awful immensity of the dangers with which it [the Constitution] is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that boundshuman eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere."[1335]
In the midst of this trance-like spell which the master conjurer had thrown over his hearers, a terrible storm suddenly arose. Darkness fell upon the full light of day. Lightnings flashed and crashing thunders shook the Convention hall. With the inspiration of genius this unrivaled actor made the tempest seem a part of his own denunciation. The scene became insupportable. Members rushed from their seats.[1336]As Henry closed, the tempest died away.
The spectators returned, the members recovered their composure, and the session was resumed.[1337]Nicholas coldly moved that the question be put atnine o'clock on the following morning. Clay and Ronald opposed, the latter declaring that without such amendments "as will secure the happiness of the people" he would "though much against his inclination vote against this Constitution."
Anxious and prolonged were the conferences of the Constitutionalist managers that night. The Legislature had convened. It was now or never for the friends of the Constitution. The delay of a single day might lose them the contest. That night and the next morning they brought to bear every ounce of their strength. The Convention met for its final session on the historic 25th of June, with the Constitutionalists in gravest apprehension. They were not sure that Henry would not carry out his threat to leave the hall; and they pictured to themselves the dreaded spectacle of that popular leader walking out at the head of the enraged opposition.[1338]
Into the hands of the burly Nicholas the Constitutionalists wisely gave command. The moment the Convention was called to order, the chair recognized Nicholas, who acted instantly with his characteristically icy and merciless decision. "The friends of the Constitution," said Nicholas, "wish to take up no more time, the matter being now fully discussed. They are convinced that further time will answer no end but to serve the cause of those who wish to destroy the Constitution. We wish it to be ratified and such amendments as may be thought necessary to be subsequently considered by a committee in order to be recommended to Congress."Where, he defiantly asked, did the opposition get authority to say that the Constitutionalists would not insist upon amendments after they had secured ratification of the Constitution? They really wished for Wythe's amendments;[1339]and would "agree to any others which" would "not destroy the spirit of the Constitution." Nicholas moved the reading of Wythe's resolution in order that a vote might be taken upon it.[1340]
Tyler moved the reading of Henry's proposed amendments and Bill of Bights. Benjamin Harrison protested against the Constitutionalists' plan. He was for previous amendment, and thought Wythe's "measure of adoption to be unwarrantable, precipitate, and dangerously impolitic." Madison reassured those who were fearful that the Constitutionalists, if they won on ratification, would not further urge the amendments Wythe had offered; the Constitutionalists then closed, as they had begun, with admirable strategy.
James Innes was Attorney-General. His duties had kept him frequently from the Convention. He was well educated, extremely popular, and had been one of the most gifted and gallant officers that Virginia had sent to the front during the Revolution. Physically he was a colossus, the largest man in that State of giants. Such was the popular and imposing champion which the Constitutionalists had so wellchosen to utter their parting word.[1341]And Innes did his utmost in the hardest of situations; for if he took too much time, he would endanger his own cause; if he did not make a deep impression, he would fail in the purpose for which he was put forward.[1342]
Men who heard Innes testify that "he spoke like one inspired."[1343]For the opposition the learned and accomplished Tyler closed the general debate. It was time wasted on both sides. But that nothing might be left undone, the Constitutionalists now brought into action a rough, forthright member from the Valley. Zachariah Johnson spoke for "those who live in large, remote, back counties." He dwelt, he said, "among the poor people." The most that he could claim for himself was "to be of the middle rank." He had "a numerous offspring" and he was willing to trust their future to the Constitution.[1344]
Henry could not restrain himself; but he would better not have spoken, for he admitted defeat. The anxious Constitutionalists must have breathed a sigh of relief when Henry said that he would not leave the hall. Though "overpowered in a good cause, yet I will be a peaceable citizen." All he would try to do would be "to remove the defects of that system [the Constitution] in a constitutional way." And so, declared the scarred veteran as he yielded his sword to the victors, he would "patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness, of the people."
Wythe's resolution of ratification now came to a vote. No more carefully worded paper for the purposes it was intended to accomplish ever was laid before a deliberative body. It reassured those who feared the Constitution, in language which went far to grant most of their demands; and while the resolve called for ratification, yet, "in order to relieve the apprehensions of those who may be solicitous for amendments," it provided that all necessary amendments berecommendedto Congress. Thus did the Constitutionalists, who had exhausted all the resources of management, debate, and personal persuasion, now find it necessary to resort to the most delicate tact.
The opposition moved to substitute for the ratification resolution one of their own, which declared "that previous to the ratification ... a declaration of rights ... together with amendments ... should be referred by this Convention to the other states ... for their consideration." On this, the first test vote of the struggle, the Constitutionalists won by the slender majority of 8 out of a total of 168. On the main question which followed, the Anti-Constitutionalists lost but one vote and the Constitution escaped defeat by a majority of only 10.
To secure ratification, eight members of the Convention voted against the wishes of their constituents,[1345]and two ignored their instructions.[1346]Grayson openly but respectfully stated on the floor that thevote was the result of Washington's influence. "I think," said he, "that, were it not for one great character in America, so many men would not be for this government."[1347]Followers of their old commander as the members from the Valley were, the fear of the Indians had quite as much to do with getting their support for a stronger National Government as had the weight of Washington's influence.[1348]
Randolph "humbly supplicated one parting word" before the last vote was taken. It was a word of excuse and self-justification. His vote, he said, would be "ascribed by malice to motives unknown to his breast." He would "ask the mercy of God for every other act of his life," but for this he requested only Heaven's justice. He still objected to the Constitution, but the ratification of it by eight States had now "reduced our deliberations to the single question ofUnionor noUnion."[1349]So closed the greatest debate ever held over the Constitution and one of the ablest parliamentary contests of history.
A committee was appointed to report "a form of ratification pursuant to the first resolution"; and another was selected "to prepare and report such amendments as by them shall be deemed necessary."[1350]Marshall was chosen as a member of both these important committees.
The lengths to which the Constitutionalists were driven in order to secure ratification are measured by the amendments they were forced to bring in. These numbered twenty, in addition to a Bill of Rights, which also had twenty articles. The ten amendments afterwards made to the Constitution were hardly a shadow of those recommended by the Virginia Convention of 1788.
That body actually proposed that National excise or direct tax laws should not operate in any State, in case the State itself should collect its quota under State laws and through State officials; that two thirds of both houses of Congress, present, should be necessary to pass navigation laws or laws regulating commerce; that no army or regular troops should be "raised or kept up in time of peace" without the consent of two thirds of both houses, present; that the power of Congress over the seat of the National Government should be confined to police and administrative regulation. The Judiciary amendment would have imprisoned the Supreme Court within limits so narrow as to render that tribunal almost powerless and would have absolutely prevented the establishment of inferior National Courts, except those of Admiralty.[1351]Yet only on such terms could ratification be secured even by the small and uncertain majority that finally voted for it.
On June 25, Clinton's suppressed letter to Randolph was laid before the House of Delegates whichhad just convened.[1352]Mason was so furious that he drew up resolutions for an investigation of Randolph's conduct.[1353]But the deed was done, anger was unavailing, and the resolutions never were offered.[1354]
So frail was the Constitutionalist strength that if the news of the New Hampshire ratification had not reached Virginia, it is more than probable that Jefferson's advice would have been followed and that the Old Dominion would have held back until all the amendments desired by the opposition had been made a part of the fundamental law;[1355]and the Constitution would have been a far different and infinitely weaker instrument than it is.
Burning with wrath, the Anti-Constitutionalists held a meeting on the night of the day of the vote for ratification, to consider measures for resisting the new National Government. The character of Patrick Henry never shone with greater luster than when he took the chair at this determined gathering of furious men. He had done his best against the Constitution, said Henry, but he had done it in the "proper place"; the question was settled now and he advised his colleagues that "as true and faithful republicans, they had all better go home!"[1356]Well might Washington write that only "conciliatory conduct" got the Constitution through;[1357]well might he declare that "it is nearly impossible for anybody who has not been on the spot (from any description) to conceive what the delicacy and danger of our situation have been."[1358]
And Marshall had been on the spot. Marshall had seen it all. Marshall had been a part of it all. From the first careful election programme of the Constitutionalists, the young Richmond lawyer had been in every meeting where the plans of the managers were laid and the order of battle arranged. No man in all the country knew better than he, the hair's breadth by which the ordinance of our National Government escaped strangulation at its very birth. No one in America better understood how carefully and yet how boldly Nationalism must be advanced if it were to grow stronger or even to survive.
It was plain to Marshall that the formal adoption of the Constitution did not end the battle. That conflict, indeed, was only beginning. The fight over ratification had been but the first phase of the struggle. We are now to behold the next stages of that great contest, each as dramatic as it was vital; and we shall observe how Marshall bore himself on every field of this mighty civil strife, note his development and mark his progress toward that supreme station for which events prepared him. We are to witness his efforts to uphold the National Government, not only with argument andpolitical activity, but also with a readiness to draw the sword and employ military force. We shall look upon the mad scenes resulting in America from the terrific and bloody convulsion in Europe and measure the lasting effect the French Revolution produced upon the statesmen and people of the United States. In short, we are to survey a strange swirl of forces, economic and emotional, throwing to the surface now one "issue" and now another, all of them centering in the sovereign question of Nationalism or States' Rights.