The Life of John Marshall
Chapter 52 : [1277] Lee to Hamilton; Hamilton MSS., Lib. Cong. The first paragraph of Lee's let

[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, "G.o.d 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 Was.h.i.+ngton, 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 Const.i.tutional 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 cla.s.ses 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 Const.i.tution 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-Const.i.tutionalist 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.

CHAPTER XII

THE STRATEGY OF VICTORY

Was.h.i.+ngton's influence carried this government [Virginia's ratification of the Const.i.tution]. (Monroe to Jefferson, July 12, 1788.)

If I shall be in the minority, I shall have those painful sensations which arise from a conviction of _being 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-Const.i.tutionalists] 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 Const.i.tutionalists'

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 Const.i.tution 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, if the Const.i.tution 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 t.i.tles, were focused on the fears of the planters.

The creditor cla.s.s were equally anxious and alarmed. "If the new Const.i.tution 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 quant.i.ties 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 t.i.tles would be in danger if they were dragged before a National Court.[1300]

The Const.i.tutionalists 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 Const.i.tutionalist attack. And never in his whole life did that extraordinary man make a more convincing argument.[1301] Mason tried his best to answer 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 Const.i.tutionalists; 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 Const.i.tution'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 Const.i.tution, asked Mason.

And even if a jury be possible in National Courts, still, under the Const.i.tution, 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 t.i.tles through Fairfax] with respect to disputed lands.

I am personally endangered as an inhabitant of the Northern Neck." Under the Const.i.tution "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 t.i.tle 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 a.s.sembly pa.s.sed, confiscating his [Fairfax's] whole property."

So, concluded Mason, "as Lord Fairfax's t.i.tle was indisputably good, and as treaties [under the Const.i.tution] 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 Const.i.tution 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 t.i.tle,[1304] and he was soon to possess it; in after years, it was to develop one of the great legal contests of history; and the 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, antic.i.p.ation 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 of _rebel_.... As this government [Const.i.tution] stands, I despise and abhor it," cried the unrivaled orator of the people.[1307]

Up now rose John Marshall, whom the Const.i.tutionalist 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 Const.i.tution was, said Marshall "a great improvement on that system from which we are now departing. Here [in the Const.i.tution] are tribunals appointed for _the decision of controversies_ which 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 their complaint? 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 Const.i.tution, 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-Const.i.tutionalists.