FOOTNOTES:

John MarshallJohn MarshallFrom a painting by Martin in the Robe Room of the U. S. Supreme Court.

For the Anti-Constitutionalists there now arose a big-statured old man "elegantly arrayed in a rich suit of blue and buff, a long queue tied with a blackribbon dangling from his full locks of snow, and his long black boots encroaching on his knees."[1250]His ancestors had been Virginians even before the infant colony had a House of Burgesses. When Benjamin Harrison now spoke he represented the aristocracy of the Old Dominion, and he launched all his influence against the Constitution. For some reason he was laboring "under high excitement," and was almost inaudible. He lauded the character of the Virginia Legislature, of which he had been a member. The Constitution, insisted Harrison, "would operate an infringement of the rights and liberties of the people."[1251]

George Nicholas answered at length and with characteristic ability and learning.[1252]But his speech was quite unnecessary, for what Harrison had said amounted to nothing. On the morning of the ninth day of the Convention Madison continued his masterful argument, two sections of which he already had delivered.[1253]He went out of his way to praise Marshall, who, said Madison, had "entered into the subject with a great deal of ability."[1254]

Mason, replying on taxation, said that under the Constitution there were "some land holders in this state who will have to pay twenty times as much [taxes] as will be paid for all the land on which Philadelphia stands." A National excise tax, he declared, "will carry the exciseman to every farmer's house, who distills a little brandy where he may search and ransack as he pleases." And what men, askedMason, would be in Congress from Virginia? Most of them would be "chosen ... from the higher order of the people—from the great, the wealthy—thewell-born—thewell-born, Mr. Chairman, that aristocratic idol—that flattering idea—thatexoticplant which has been lately imported from the ports of Great Britain, and planted in the luxurious soil of this country."

It is significant to find the "well-born," wealthy, learned, and cultivated Mason taking this tone. It shows that the common people's dislike of a National Government was so intense that even George Mason pandered to it. It was the fears, prejudices, and passions of the multitude upon which the enemies of the Constitution chiefly depended; and when Mason stooped to appeal to them, the sense of class distinction must have been extreme. His statement also reveals the economic line of cleavage between the friends and foes of the Constitution.

It was in this speech that Mason made his scathing "cat and Tory" comparison. He knew those who were for the Constitution, "their connections, their conduct, their political principles, and a number of other circumstances. There are a great many wise and good men among them"; but when he looked around and observed "who are the warmest and most zealous friends to this new government," it made him "think of the story of the cat transformed to a fine lady: forgetting her transformation and happening to see a rat, she could not restrain herself, but sprang upon it out of the chair."[1255]

Mason denounced Randolph for the latter's apostasy. "I know," said Mason, "that he once saw as great danger in it as I do. What has happened since this to alter his opinion?" Of course, the Confederation was defective and reform needed; but the Constitution was no reform. Without previous amendments, "we never can accede to it. Our duty to God and to our posterity forbids it,"[1256]declared the venerable author of Virginia's Bill of Rights and the Constitution of the State.

Henry Lee answered with fire and spirit, first rebuking "the irregular and disorderly manner" in which the opposition had carried on the debate. As to the cat story, Mason ought to know "that ridicule is not the test of truth. Does he imagine that he who can raise the loudest laugh is the soundest reasoner?" And Mason's "insinuations" about the "well-born" being elected to Congress were "unwarrantable." He hoped that "we shall hear no more of such groundless aspersions." Lee's speech is valuable only as showing the rising spirit of anger which was beginning to appear even in Virginia's well-conducted, parliamentary, and courteous debate.[1257]

The Anti-Constitutionalists were now bringing all their guns into action. The second Revolutionary soldier to speak for the opposition now arose. William Grayson was almost as attractive a militaryfigure as Henry Lee himself. He had been educated at Oxford, had studied law in the Inner Temple; and his style of speech was the polished result of practice in the English political clubs, in Congress, and at the bar.[1258]There were few men in America with more richly stored or better trained minds. He was a precise Latinist and a caustic wit. When, during the debate, some of the Constitutionalist speakers used Latin phrases with a wrong pronunciation, Grayson,sotto voce, would correct them. Once he remarked, loud enough to be heard by the other members whom he set roaring with laughter, that he was not surprised that men who were about to vote away the liberties of a living people should take such liberties with a dead language.

Grayson now brought into action the heaviest battery the Anti-Constitutionalists had in reserve. He did not blame Virginia's delegates to the Federal Convention, said Grayson suavely. It was unfortunate "that they did not do more for the general good of America"; but "I do not criminate or suspect the principles on which they acted." Of course, the Confederation had defects; but these were "inseparable from the nature of such [Republican]governments." The Constitutionalists had conjured up "phantoms and ideal dangers to lead us into measures which will ... be the ruin of our country." He argued that we were in no danger from our default in paying foreign loans; for most European nations were friendly. "Loans from nations are not like loans from private men. Nations lend money ... to one another from views of national interest. France was willing to pluck the fairest feather out of the British crown. This was her hope in aiding us"—a truth evident to every man in the Convention. Such loans were habitually delayed,—for instance, "the money which the Dutch borrowed of Henry IV is not yet paid"; these same Dutch "passed Queen Elizabeth's loan at a very considerable discount," and they "made their own terms with that contemptible monarch," James I.

The people had no idea, asserted Grayson, that the Federal Convention would do more than to give the National Government power to levy a five per cent tariff, but since then "horrors have been greatly magnified." He ridiculed Randolph's prophecy of war and calamity. According to Randolph, "we shall be ruined and disunited forever, unless we adopt this Constitution. Pennsylvania and Maryland are to fall upon us from the north, like the Goths and Vandals of old; the Algerines, whose flat-sided vessels never came farther than Madeira, are to fill the Chesapeake with mighty fleets, and to attack us on our front; the Indians are to invade us with numerous armies on our rear, in order to convert our cleared lands intohunting-grounds; and the Carolinians, from the South (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children! These, sir, are the mighty dangers which await us if we reject [the Constitution]—dangers which are merely imaginary, and ludicrous in the extreme!"

At bottom, thought Grayson, the controversy was between two opinions—"the one that mankind can only be governed by force; the other that they are capable" of governing themselves. Under the second theory, which Grayson favored, all that was necessary was to "give congress the regulation of commerce" and to "infuse new strength and spirit into the state governments."

This, he remarked, was the proper course to pursue and to maintain "till the American character be marked with some certain features. We are yet too young to know what we are fit for." If this was not to be done and we must have a government by force, then Grayson "would have a President for life, choosing his successor at the same time; a Senate for life, with the powers of the House of Lords; and a triennial House of Representatives, with the powers of the House of Commons in England."[1259]Consider the Judiciary. Suppose a man seized at the same time under processes from Federal and State Courts: "Would they divide the man in two, as Solomon directed the child to be divided who was claimed by two women?"

Evidently Grayson was making a strong impression as the day grew to a close, for Monroe, seconded by Henry, moved that the Convention adjourn that Grayson might go on next day; and Madison, plainly nervous, "insisted on going through the business regularly, according to the resolution of the house." Grayson consumed most of the next forenoon, displaying great learning, but sometimes drawing the most grotesque conclusions. For example, he said that Congress might grant such privileges that "the whole commerce of the United States may be exclusively carried on by merchants residing within the seat of government [now the District of Columbia] and those places of arms which may be purchased of the state legislature." The Constitution did not give equality of representation; for "the members of Delaware will assist in laying a tax on our slaves, of which they will pay no part whatever." In general, Grayson's conclusion was that "we have asked for bread and they have given us a stone."[1260]

Pendleton answered. Henry's treatment of Randolph's unhappy reference to the people as a "herd" seems to have had some effect; for Pendleton regretted its use and tried to explain it away. Henry and he differed "at the threshold" on government. "I think government necessary to protect liberty.... Licentiousness" was "the natural offspring of liberty"; and "therefore, all free governments should endeavor to suppress it, or else it will ultimately overthrow that liberty of which it is the result." Henry "professes himself an advocate for the middling and lower classes of men, I profess to be afriend to the equal liberty of all men, from the palace to the cottage."

The appeal to class hatred, said Pendleton, had been made by the opposition exclusively; the Constitutionalists knew no distinction among men except that of good and bad men. Why did the opposition make "the distinction ofwell-bornfrom others?... Whether a man be great or small, he is equally dear to me." He wished "for a regular government in order to secure and protect ... honest citizens ... the industrious farmer and planter." The purpose of the proposed National Government was to cherish and protect industry and property. Pendleton spoke at great length, but frequently his voice was so feeble that he could not be understood or reported.[1261]

Madison followed with the fourth section of what might properly be called his treatise on government. Henry replied, striking again the master chord of the people's fears—that of a National Government as something alien. "The tyranny of Philadelphia may be like the tyranny of George III." That the Constitution must be amended "re-echoed from every part of the continent"; but that could not be done "if we ratify unconditionally." Henry remade his old points with his consummate art.

He mentioned a new subject, however, of such high practical importance that it is astonishing that he had not advanced it at the beginning and driven it home persistently. "There are," he said, "thousands and thousands of contracts, whereof equityforbids an exact literal performance.... Pass that government [the Constitution] and you will be bound hand and foot.... An immense quantity of depreciated Continental paper money ... is in the hands of individuals to this day. The holders of this money may call for the nominal value, if this government be adopted. This State may be compelled to pay her proportion of that currency, pound for pound. Pass this government and you will be carried to the federal court ... and you will be compelled to pay, shilling for shilling."

Returning to this point later on, Henry said: "Some of the states owe a great deal on account of paper money; others very little. Some of the Northern States have collected and barrelled up paper money. Virginia has sent thither her cash long ago. There is little or none of the Continental paper money retained in this State. Is it not their business to appreciate this money? Yes, and it will be your business to prevent it. But there will be a majority [in Congress] against you and you will be obliged to pay your share of this money, in its nominal value."[1262]

Referring to Pendleton's assertion that the State Court had declared void legislative acts which violated the State Constitution, Henry exclaimed:"Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had the fortitude to declare that they were the judiciary and would oppose unconstitutional acts. Are you sure your federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say you cannot find any in it. I take it as the highest encomium on this country [Virginia] that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."[1263]

As usual, Henry ended with a fearsome picture and prophecy, this time of the danger to and destruction of Southern interests at the hands of the Northern majority. This, said he, "is a picture so horrid, so wretched, so dreadful, that I need no longer dwell upon it"; and he "dreaded the most iniquitous speculation and stock-jobbing, from the operation of such a system" as the Constitution provided.[1264]Madison replied—the first spontaneous part he had taken in the debate.[1265]

The next morning the opposition centered their fire on the Mississippi question. Henry again demanded that the members of the Convention who had been in Congress should tell what had been done.[1266]The members of Congress—Lee, Monroe,Grayson, and Madison—then gave their versions of the Jay-Gardoqui transaction.[1267]

The Constitutionalists rightly felt that "the whole scene has been conjured by Henry to affect the ruin of the new Constitution,"[1268]and that seasoned gladiator now confirmed their fears. He astutely threw the blame on Madison and answered the charge of the Constitutionalists that "we [the opposition] are scuffling for Kentucky votes and attending to local circumstances." With all of his address and power, Henry bore down upon the Mississippi question. Thus he appealed for Kentucky votes: "Shall we appear to care less for their interests than for that of distant people [the Spaniards]?"

At Henry's word a vision rose before all eyes of the great American valley sustaining "a mighty population," farms, villages, towns, cities, colleges, churches, happiness, prosperity; and "the Mississippi covered with ships laden with foreign and domestic wealth"—a vision of a splendid West "the strength, the pride, and the flower of the Confederacy." And then quickly succeeded on the screen the picture of the deserted settlers, the West a wilderness, the Father of Waters flowing idly to the sea, unused by commerce, unadorned by the argosies of trade. Such, said he, would be the Mississippi under the Constitution "controlled by those who had no interest in its welfare."[1269]

At last the Constitutionalists were stunned. For a while no one spoke. Pendleton, "his right handgrasping his crutch, sat silent and amazed."[1270]Nicholas, the dauntless, was first to recover himself, and repeated Marshall's argument on the Mississippi question. Evidently the opposition had lobbied effectively with the Kentucky members on that sore point; for, exclaimed Nicholas, "we have been alarmed about the loss of the Mississippi, in andoutof doors."[1271]

The Constitutionalists strove mightily to break the force of Henry'scoupon the Kentucky delegates. He had "seen so many attempts made," exclaimed Randolph, "and so many wrong inducements offered to influence the delegation from Kentucky," that he must speak his mind about it.[1272]Corbin called the Mississippi trick "reprehensible." And well might the Constitutionalists tremble; for in spite of all they could do, ten out of fourteen of the Kentucky delegates voted against ratifying the Constitution.

That night Pendleton fell ill and John Tyler, "one of the staunchest opponents of the new Constitution," was elected Vice-President.[1273]The Mississippi question was dropped for the moment; the Constitutionalists rallied and carried Corbin's motion to debate the new Government clause by clause in accordance with the original resolution. Several sections of the first article were read and debated, Henry, Mason, and Grayson for the opposition; Madison bearing the burden of the debate for the Constitutionalists.

The rich man and the poor, the State Government a thing of the "people" and the National Government something apart from the "people," were woven throughout the Anti-Constitutionalists' assaults. "Where," exclaimed Henry, "are the purse and the sword of Virginia? They must go to Congress. What has become of your country? The Virginian government is but a name.... We are to be consolidated."[1274]

The second week's debate closed with the advantage on the side of the opposition. Gouverneur Morris, the New York Constitutionalist, who, still on the ground, was watching the fight in Richmond and undoubtedly advising the Virginia Constitutionalists, reported to Hamilton in New York that "matters are not going so well in this State as the Friends of America could wish." The Anti-Constitutionalists had been making headway, not only through Henry's tremendous oratory, but also by other means; and the Constitutionalists acknowledged that their own arguments in debate were having little or no effect.

"If, indeed, the Debates in Convention were alone attended to," wrote Gouverneur Morris, "a contrary Inference would be drawn for altho Mr. Henry is most warm and powerful in Declamation being perfectly Master of 'Action Utterrance and Power of Speech to stir Men's Blood' yet the Weight of Argument is so strong on the Side of Truth as wholly to destroy even on weak Minds the Effects of his Eloquence. But there are as you well know certain dark Modes of operating on the Minds of Members whichlike contagious Diseases are only known by their Effects on the Frame and unfortunately our moral like our phisical Doctors are often mistaken in their Judgment from Diagnostics. Be of good Chear. My Religion steps in where my Understanding falters and I feel Faith as I loose Confidence. Things will yet go right but when and how I dare not predicate. So much for this dull Subject."[1275]

"We have conjectured for some days," Madison advised Hamilton, "that the policy is to spin out the Session in order to receive overtures from your [New York's] Convention: or if that cannot be, to weary the members into a adjournment without taking any decision. It [is] presumed at the same time that they do not despair of carrying the point of previous amendments which is preferable game. The parties continue to be nearly balanced. If we have a majority at all, it does not exceed three or four. If we lose it Kentucke will be the cause; they are generally if not unanimously against us."[1276]

On the back of Madison's letter, Henry Lee wrote one of his own to the New York Constitutionalist chieftain. "We possess as yet," said Lee, "in defiance of great exertions a majority, but very small indeed. A correspondence has certainly been opened thro a Mr. O.[swald] of Philadạfrom the Malcontents of B. & N. Y. to us—it has its operation, but I believe we are still safe, unless the question of adjournment should be introduced, & love of home mayinduce some of our friends to abandon their principles."[1277]

"The business is in the most ticklish state that can be imagined," Madison informed Washington; "the majority will certainly be very small on whatever side it may finally lie; and I dare not encourage much expectation that it will be on the favorable side. Oswald of Philadạhas been here with letters for the anti-Federal leaders from N. York and probably PhiladạHe Staid a very short time here during which he was occasionally closeted with H——y M—s—n &c."[1278]

On Monday the Anti-Constitutionalists were first in the field. They were by now displaying improved tactics. Henry opened on the dangers of a standing army. "If Congress shall say that the general welfare requires it, they may keep armies continually on foot.... They may billet them on the people at pleasure." This is "a most dangerous power! Its principles are despotic."[1279]Madison followed,[1280]and Mason, Corbin, and Grayson also spoke,[1281]the latter asserting that, under the Constitution, the States could not "command the militia" unless by implication.

Here Marshall again took part in the debate.[1282]He asked whether Grayson was serious in stating that the Constitution left no power in the States over the militia unless by implication. Under the Constitution, State and National Governments "each derived its powers from the people, and each was to act according to the powers given it." Were "powers not given retained by implication?" asked Marshall. Was "this power [over the militia] not retained by the states, as they had not given it away?"

It is true, he admitted, that "Congress may call forth the militia" for National purposes—"as to suppress insurrections and repel invasions"; but the power given the States by the people "is not taken away, for the Constitution does not say so." The power of Congress over the ten miles square where the National Capital was to be located is "exclusive ... because it is expressed [in the Constitution] to be exclusive." Marshall contended that any power given Congress which before was in the States remained in both unless the Constitution said otherwise or unless there was incompatibility in its exercise. So the States would have the same control over the militia as formerly. "When invaded or in imminent danger they [the States] can engage in war."

Grayson had said, declared Marshall, that if the National Government disciplined the militia, "they will form an aristocratic government, unsafe and unfit to be trusted." Grayson interrupted Marshall in an unsuccessful attempt to squirm out of the position in which the latter had placed him. He had only said that in its military features the Constitution "was so constructed as to form a great aristocratic body."

Marshall retorted that "as the government was drawn from the people, the feelings and interests of the people would be attended to"; and, therefore, there would be no military aristocracy. "When the government is drawn from the people and depending on the people for its continuance, oppressive measures will not be attempted," argued Marshall, "as they will certainly draw on their authors the resentment of those on whom they depend." No! cried he: "On this government, thus depending on ourselves for its existence, I will rest my safety."

Again Marshall expressed his military experience and instincts. If war should come "what government is able to protect you?" he asked. "Will any state depend on its own exertions?" No! If the National Government is not given the power "state will fall after state and be a sacrifice to the want of power in the general government." Uttering the motto of American Nationalism, which, long years afterward, he declared to have been the ruling maxim of his entire life, Marshall cried, "United we are strong, divided we fall." If the National militia cannot "draw the militia of one state to another ... every state must depend upon itself.... It requires a superintending power, ... to call forth the resources of all to protect all."

Replying to Grayson's assertion that "a general regulation [of the militia] may be made to inflictpunishments," Marshall asked whether Grayson imagined that a militia law would be "incapable of being changed?" Grayson's idea "supposes that men renounce their own interests." And "if Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms ... [and] put them into the hands of her militia men?" Marshall summed up with the statement that the States derived no powers from the Constitution "but retained them, though not acknowledged in any part of it."[1283]

Marshall's speech must have been better than anything indicated in the stenographer's report; for the resourceful Grayson was moved to answer it at once[1284]and even Henry felt called upon to reply to it.[1285]Henry was very fond of Marshall; and this affection of the mature statesman for the rising young lawyer saved the latter in a furious political contest ten years afterwards.[1286]The debate was continued by Madison, Mason, Nicholas, Lee, Pendleton, and finally ended in a desultory conversation,[1287]but nothing important or notable was said in this phase of the debate. One statement, however, coming as it did from Mason, flashes a side-light on the prevailing feeling that the proposed National Government was something apart from the people. Mason saw the most frightful dangers from the unlimited power of Congress over the ten miles square provided for the National Capital.

"This ten miles square," cried Mason, "may set at defiance the laws of the surrounding states, and may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes. Here the Federal Courts are to sit.... What sort of a jury shall we have within the ten miles square?" asked Mason, and himself answered, "The immediate creatures of the government. What chance will poor men get?... If an attempt should be made to establish tyranny over the people, here are ten miles square where the greatest offender may meet protection. If any of the officers or creatures [of the National Government] should attempt to oppress the people or should actually perpetrate the blackest deed, he has nothing to do but to get into the ten miles square."[1288]

The debate then turned upon amending the Constitution by a Bill of Rights, the Constitutionalists asserting that such an amendment was not necessary, and the opposition that it was absolutely essential. The question was "whether rights not given up were reserved?" Henry, as usual, was vivid. He thought that, without a Bill of Rights, "excisemen may come in multitudes ... go into your cellars and rooms, and search, and ransack, and measure, everything you eat, drink, and wear." And the common law! The Constitution did not guarantee its preservation. "Congress may introduce the practice of the civil law, in preference to that of the common law; ... the practice of ... torturing, to extort a confession of the crime.... We are then lost and undone."[1289]

The slavery question next got attention, Mason, Madison, Tyler, Henry, and Nicholas continuing the discussion.[1290]Under the first clause of the tenth section of article one, Henry again brought up the payment of the Continental debt. "He asked gentlemen who had been high in authority, whether there were not some state speculations on this matter. He had been informed that some states had acquired vast quantities of that money, which they would be able to recover in its nominal value of the other states." Mason said "that he had been informed that some states had speculated most enormously in this matter. Many individuals had speculated so as to make great fortunes on the ruin of their fellow-citizens." Madison in reply assured the Convention that the Constitution itself placed the whole subject exactly where it was under the Confederation; therefore, said he, it is "immaterial who holds those great quantities of paper money,... or at what valuethey acquired it."[1291]To this extent only was the point raised which became most vital when the National Government was established and under way.[1292]

Madison's point, said Mason, was good as far as it went; but, under the Confederation, Congress could discharge the Continental money "at its depreciated value," which had gone down "to a thousand for one." But under the Constitution "we must pay it shilling for shilling or at least at the rate of one for forty"; which would take "the last particle of our property.... We may be taxed for centuries, to give advantage to a few particular states in the Union and a number of rapacious speculators." Henry then turned Madison's point that "the new Constitution would place us in the same situation with the old"; for Henry saw "clearly" that "this paper money must be discharged shilling for shilling."[1293]Then Henry brought up the scarecrow of the British debts, which had more to do with the opposition to the Constitution in Virginia[1294]than any other specific subject, excepting, perhaps, the threatened loss of the Mississippi and the supreme objectionthat a National Government would destroy the States and endanger "liberty."

The opposition had now come to the point where they were fighting the separate provisions of the Constitution one by one. When the first section of the second article, concerning the Executive Department, was reached, the opposition felt themselves on safe ground. The Constitution here sapped the "great fundamental principle of responsibility in republicanism," according to Mason.[1295]Grayson wanted to know how the President would be punished if he abused his power. "Will you call him before the Senate? They are his counsellors and partners in crime."[1296]

The treaty-making power, the command of the army, the method of electing the President, the failure of the Constitution to provide for his rotation in office, all were, to the alarmed Anti-Constitutionalists, the chains and shackles of certain and inevitable despotism. The simple fears of the unlettered men who sullenly had fought the Constitution in the Massachusetts Convention were stated and urged throughout the great debate in Virginia by some of her ablest and most learned sons. Madison was at his best in his exposition of the treaty-making power. But if the debate on the Executive Department had any effect whatever in getting votes for or against the Constitution, the advantage was with the enemies of the proposed new Government.

Grayson wrote to Dane: "I think we got a Vote by debating the powers of the President. This, you willobserve, is confidential." But this was cold comfort, for, he added, "our affairs ... are in the most ticklish situation. We have got ten out of thirteen of the Kentucke members but we wanted the whole: & I don't know that we have got one yet of the four upper counties: this is an important point & which both sides are contending for by every means in their power. I believe it is absolutely certain that we have got 80 votes on our side which are inflexible & that eight persons are fluctuating & undecided."[1297]

FOOTNOTES:[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 toIndependent Gazetteeron that date;ib., 787, denying the charge that paper had made against him. Seesupra, 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 Braxtonvs.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 Pennsylvyline 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'sWritings: Washington, ii, 355; and see Monroe to Jefferson, July 12, 1788;Writings: Hamilton, i, 186-87.[1228]Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a very animated manner expatiated on the evil and pernicious tendency of keeping secret the common proceedings of government." (Ib., 170.)[1229]Grigsby, i, footnote to 157.[1230]Elliott, iii, 150-76.[1231]Lee, while pretending to praise the militia, really condemned it severely; and cited the militia's panic and flight at Guilford Court-House, which lost the battle to the Americans. "Had the line been supported that day," said he, "Cornwallis, instead of surrendering at Yorktown, would have laid down his arms at Guilford." (Elliott, iii, 178.)[1232]Randolph's letter explaining why he had refused to sign the Constitution.[1233]This was the only quarrel of the Convention which threatened serious results. A duel was narrowly averted. Colonel William Cabell, as Henry's friend, called on Randolph that night; but matters were arranged and the tense situation relieved when it was learned, next morning, that no duel would take place. (Grigsby, i, 162-65.)[1234]Elliott, iii, 187-207.[1235]Grigsby, i, 167-68.[1236]Elliott, iii, 207-22.[1237]"When any other member spoke, the members of the audience would, in half an hour, be going out or moving from their seats." (Winston to Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two days' debate, except five; and often spoke several times a day. (Ib., 350.)[1238]Grigsby, i, 176.[1239]Marshall's Account Book. The entry is: "[June] 2 Paid for coat for self 1." Two months earlier Marshall paid "for Nankin for breeches for self 1.16." (Ib., April 1, 1788.) Yet about the same time he spent one pound, nine shillings at a "barbecue."[1240]Grigsby, i, 176.[1241]Marshall had provided for entertaining during the Convention. His Account Book shows the following entry on May 8, 1788: "Paid McDonald for wine 20" (pounds); and "bottles 9/" (shillings). This was the largest quantity of wine Marshall had purchased up to that time.[1242]Marshall's reputation for "eloquence" grew, as we shall see, until his monumental work on the Supreme Bench overshadowed his fame as a public speaker.[1243]Elliott, iii, 222.[1244]Marshall's idea was that government should be honest and efficient; a government by the people, whether good or bad, as a method of popular self-development and progress did not appeal to him as much as excellence in government.[1245]Marshall here referred to the case of Josiah Philips, and fell into the same error as had Randolph, Henry, and others. (Seesupra, 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.IIIof 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.IIIof 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. (Seeinfra, 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.IIIof 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; HamiltonMSS., 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.

[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 toIndependent Gazetteeron that date;ib., 787, denying the charge that paper had made against him. Seesupra, 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 Braxtonvs.Willing, Morris & Co. (4 Call, 288). Marshall was his lawyer.

Robert Morris was in Richmond, March 21, 1788. (Morris toIndependent Gazetteeron that date;ib., 787, denying the charge that paper had made against him. Seesupra, 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 Braxtonvs.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 Pennsylvyline 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'sWritings: Washington, ii, 355; and see Monroe to Jefferson, July 12, 1788;Writings: Hamilton, i, 186-87.

[1228]Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a very animated manner expatiated on the evil and pernicious tendency of keeping secret the common proceedings of government." (Ib., 170.)

[1229]Grigsby, i, footnote to 157.

[1230]Elliott, iii, 150-76.

[1231]Lee, while pretending to praise the militia, really condemned it severely; and cited the militia's panic and flight at Guilford Court-House, which lost the battle to the Americans. "Had the line been supported that day," said he, "Cornwallis, instead of surrendering at Yorktown, would have laid down his arms at Guilford." (Elliott, iii, 178.)

[1232]Randolph's letter explaining why he had refused to sign the Constitution.

[1233]This was the only quarrel of the Convention which threatened serious results. A duel was narrowly averted. Colonel William Cabell, as Henry's friend, called on Randolph that night; but matters were arranged and the tense situation relieved when it was learned, next morning, that no duel would take place. (Grigsby, i, 162-65.)

[1234]Elliott, iii, 187-207.

[1235]Grigsby, i, 167-68.

[1236]Elliott, iii, 207-22.

[1237]"When any other member spoke, the members of the audience would, in half an hour, be going out or moving from their seats." (Winston to Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two days' debate, except five; and often spoke several times a day. (Ib., 350.)

[1238]Grigsby, i, 176.

[1239]Marshall's Account Book. The entry is: "[June] 2 Paid for coat for self 1." Two months earlier Marshall paid "for Nankin for breeches for self 1.16." (Ib., April 1, 1788.) Yet about the same time he spent one pound, nine shillings at a "barbecue."

[1240]Grigsby, i, 176.

[1241]Marshall had provided for entertaining during the Convention. His Account Book shows the following entry on May 8, 1788: "Paid McDonald for wine 20" (pounds); and "bottles 9/" (shillings). This was the largest quantity of wine Marshall had purchased up to that time.

[1242]Marshall's reputation for "eloquence" grew, as we shall see, until his monumental work on the Supreme Bench overshadowed his fame as a public speaker.

[1243]Elliott, iii, 222.

[1244]Marshall's idea was that government should be honest and efficient; a government by the people, whether good or bad, as a method of popular self-development and progress did not appeal to him as much as excellence in government.

[1245]Marshall here referred to the case of Josiah Philips, and fell into the same error as had Randolph, Henry, and others. (Seesupra, 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.IIIof 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.IIIof 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. (Seeinfra, 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.IIIof 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; HamiltonMSS., 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.

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.

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