Kitabı oku: «The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788», sayfa 19

CHAPTER XI
THE SUPREME DEBATE

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

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

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

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

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

On Monday, Henry and Mason made a dramatic entrance into the Convention hall. Walking arm in arm from their quarters in "The Swan,"¹²²³ they stopped on the steps at the doors of the New Academy and conferred earnestly for some minutes; so great was the throng that the two Anti-Constitutionalist chieftains made their way to their seats with great difficulty.¹²²⁴ When Henry rose to go on with his speech, the plan decided on during Sunday quickly was revealed. The great prize for which both sides now were fighting was the votes from Kentucky.¹²²⁵ Henry held up before them the near forfeiture to the Spanish of our right to navigate the Mississippi.¹²²⁶ This, he said, was the work of seven Northern States; but under the Confederation they had been thwarted in their fell purpose by six Southern States; and the Mississippi still remained our own. But if the Constitution was adopted, what would happen? The Senate would be controlled by those same Northern States that had nearly succeeded in surrendering the great waterway and the West and South would surely be deprived of that invaluable commercial outlet. He asked the members of Congress who were in the Convention to tell the facts about the Mississippi business. Jefferson, he avowed, had counseled Virginia to "reject this government."¹²²⁷

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

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

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

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

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

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

When the hot-blooded young soldier had finished his aggressive speech, Randolph could no longer restrain himself. Henry's bold challenge of Randolph's change of front had cut that proud and sensitive nature to the heart. "I disdain," thundered he, "his aspersions and his insinuations." They were "warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, let it fall, like Lucifer, never to rise again!" It was not to answer Henry that he spoke, snarled Randolph, "but to satisfy this respectable audience." Randolph then explained his conduct, reading part of the letter¹²³² that had caused all the trouble, and dramatically throwing the letter on the clerk's table, cried "that it might lie there for the inspection of the curious and malicious."¹²³³ Randolph spoke for the remainder of the day and consumed most of the next forenoon.¹²³⁴

No soldier had yet spoken for the Anti-Constitutionalists; and it perhaps was Lee's fling at Henry that now called a Revolutionary officer to his feet against the Constitution. A tall, stiff, raw-boned young man of thirty years arose. Poorly educated, slow in his mental processes,¹²³⁵ James Monroe made a long, dull, and cloudy speech, finally declaring of the Constitution, "I think it a dangerous government"; and asking "why … this haste – this wild precipitation?" Long as Monroe's speech was, he reminded the Convention that he had "not yet said all that I wish upon the subject" and that he would return to the charge later on.¹²³⁶

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

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

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

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

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

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

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

As to the navigation of the Mississippi, he asked: "How shall we retain it? By retaining that weak government which has hitherto kept it from us?" No, exclaimed Marshall, but by a Government with "the power of retaining it." Such a Government, he pointed out, was that proposed in the Constitution. Here again the Constitutionalist managers displayed their skill. Marshall was the best man they could have chosen to appeal to the Kentucky members on the Mississippi question. His father, mother, and his family were now living in Kentucky, and his relative, Humphrey Marshall, was a member of the Convention from that district.¹²⁴⁶ Marshall himself was the legislative agent of the District of Kentucky in Richmond. The development of the West became a vital purpose with John Marshall, strengthening with the years; and this was a real force in the growth of his views on Nationality.¹²⁴⁷

Henry's own argument, that amendments could not be had after adoption, proved, said Marshall, that they could not be had before. In all the States, particularly in Virginia, there were, he charged, "many who are decided enemies of the Union." These were inspired by "local interests," their object being "disunion." They would not propose amendments that were similar or that all could agree upon. When the Federal Convention met, said Marshall, "we had no idea then of any particular system. The formation of the most perfect plan was our object and wish"; and, "it was imagined" that the States would with pleasure accept that Convention's work. But "consider the violence of opinions, the prejudices and animosities which have been since imbibed"; and how greatly they "operate against mutual concessions."

Marshall reiterated that what the Constitutionalists were fighting for was "a well-regulated democracy." Could the people themselves make treaties, enact laws, or administer the Government? Of course not. They must do such things through agents. And, inquired he, how could these agents act for the people if they did not have power to do so? That the people's agents might abuse power was no argument against giving it, for "the power of doing good is inseparable from that of doing some evil." If power were not given because it might be misused, "you can have no government." Thus Marshall stated that principle which he was to magnify from the Supreme Bench years later.

"Happy that country," exclaimed the young orator, "which can avail itself of the misfortunes of others … without fatal experience!" Marshall cited Holland. The woes of that country were caused, said he, by "the want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties" – in short, by such a government, or rather absence of government, as America then had under the Confederation. If Holland had had such a government as the Constitution proposed, she would not be in her present sorry plight. Marshall was amused at Henry's "high-colored eulogium on such a government."

There was no analogy, argued he, between "the British government and the colonies, and the relation between Congress and the states. We were not represented in Parliament. Here [under the Constitution] we are represented." So the arguments against British taxation "do not hold against the exercise of taxation by Congress." The power of taxation by Congress to which Henry objected was "essentially necessary; for without it there will be no efficiency in the government." That requisitions on the States could not be depended on had been demonstrated by experience, he declared; the power of direct taxation was, therefore, necessary to the very existence of the National Government.

"The possibility of its being abused is urged as an argument against its expediency"; but, said Marshall, such arguments would prevent all government and result in anarchy. "All delegated powers are liable to be abused." The question was, whether the taxing power was "necessary to perform the objects of the Constitution?.. What are the objects of national government? To protect the United States, and to promote the general welfare. Protection, in time of war, is one of its principal objects. Until mankind shall cease to have ambition and avarice, wars will arise."

Experience had shown, said Marshall, that one State could not protect the people or promote general welfare. "By the national government only" could these things be done; "shall we refuse to give it power to do them?" He scorned the assertion "that we need not be afraid of war. Look at history," he exclaimed, "look at the great volume of human nature. They will foretell you that a defenseless country cannot be secure. The nature of men forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The powers of Europe are jealous of us. It is our interest to watch their conduct and guard against them. They must be pleased with our disunion. If we invite them by our weakness to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place."

The power of National taxation, therefore, was necessary, Marshall asserted. "There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose?" If so, "it is, then, necessary to give the government that power in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared." History, human nature, and "our own particular experience, will confirm this truth." If danger should come upon us without power to meet it, we might resort to a dictatorship; we once were on the point of doing that very thing, said he – and even Henry and Mason did not question this appeal of Marshall to the common knowledge of all members of the Convention.

"Were those who are now friends to this Constitution less active in the defense of liberty, on that trying occasion, than those who oppose it?" scathingly asked Marshall. "We may now … frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. If we be prepared to defend ourselves, there will be little inducement to attack us. But if we defer giving the necessary power to the general government till the moment of danger arrives, we shall give it then, and with an unsparing hand."

It was not true, asserted Marshall, that the Confederation carried us through the Revolution; "had not the enthusiasm of liberty inspired us with unanimity, that system would never have carried us through it." The war would have been won much sooner "had that government been possessed of due energy." The weakness of the Confederation and the conduct of the States prolonged the war. Only "the extreme readiness of the people to make their utmost exertions to ward off solely the pressing danger, supplied the place of requisitions." But when this danger was over, the requisition plan was no longer effective. "A bare sense of duty," said he, "is too feeble to induce men to comply with obligations."

It was plain, then, Marshall pointed out, that "the government must have the sinews of war some other way." That way was by direct taxation which would supply "the necessities of government … in a peaceable manner"; whereas "requisitions cannot be rendered efficient without a civil war."

What good would it do for Congress merely to remonstrate with the States, as Henry had proposed, if we were at war with foreign enemies? There was no danger that Congress, under the Constitution, would not lay taxes justly, asserted Marshall; for if members of Congress laid unjust taxes, the people would not reëlect them. Under the Constitution, they were chosen by the same voters who elected members of the State Legislature. These voters, said he, "have nothing to direct them in the choice but their own good." Men thus elected would not abuse their power because that would "militate against their own interest… To procure their reelection, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their own good."

Henry had asked whether the adoption of the Constitution "would pay our debts." "It will compel the states to pay their quotas," answered Marshall. "Without this, Virginia will be unable to pay. Unless all the states pay, she cannot… Economy and industry are essential to our happiness"; but the Confederation "takes away the incitements to industry, by rendering property insecure and unprotected." The Constitution, on the contrary, "will promote and encourage industry."

The statement of the Anti-Constitutionalists that the extent of the country was too great for a strong National Government was untrue, argued Marshall. Also, said he, this objection was from writers who criticized those governments "where representation did not exist." But, under the Constitution, representation would exist.

Answering Henry's objection, that there were no effective checks in the Constitution, Marshall inquired, "What has become of his enthusiastic eulogium on the American spirit?" There, declared Marshall, was the real check and control. "In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own." In such considerations were found the greatest security from an improper exercise of power.

"Is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration?.. We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it."

Returning to the subject of amendments, "what," asked Marshall, "shall restrain you from amending it, if, in trying it, amendments shall be found necessary… When experience shall show us any inconvenience, we can then correct it… If it be necessary to change government, let us change that government which has been found to be defective." The Constitution as it stood filled the great objects which everybody desired – "union, safety against foreign enemies, and protection against faction [party] – against what has been the destruction of all republics."

He turned Henry's unhappy praise of the British Constitution into a weapon of deadly attack upon the opposition. The proposed Constitution, said Marshall, was far better than the British. "I ask you if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them? If your senators were for life, would they be more agreeable to you? If your President were not accountable to you for his conduct, – if it were a constitutional maxim, that he could do no wrong, – would you be safer than you are now? If you can answer, Yes, to these questions, then adopt the British constitution. If not, then, good as that government may be, this [Constitution] is better."

Referring to "the confederacies of ancient and modern times" he said that "they warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them." The ocean does not protect us from war; "Sir," exclaimed Marshall, "the sea makes them neighbors to us… What dangers may we not apprehend to our commerce! Does not our naval weakness invite an attack on our commerce?" Henry had said "that our present exigencies are greater than they will ever be again." But, asked he, "Who can penetrate into futurity?"

Henry's objection that the National Government, under the Constitution, would "call forth the virtue and talents of America," to the disadvantage of the States, was, Marshall said, the best guarantee that the National Government would be wisely conducted. "Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly?" On the contrary, "the virtue and talents of the members of the general government will tend to the security instead of the destruction of our liberty… The power of direct taxation is essential to the existence of the general government"; if not, the Constitution was unnecessary; "for it imports not what system we have, unless it have the power of protecting us in time of war."¹²⁴⁸

This address to the Virginia Convention is of historic interest as John Marshall's first recorded utterance on the Constitution of which he was to become the greatest interpreter. Also, it is the first report of Marshall's debating. The speech is not, solely on its merits, remarkable. It does not equal the logic of Madison, the eloquence of Randolph or Lee, or the brilliancy of Corbin. It lacks that close sequence of reasoning which was Marshall's peculiar excellence. In provoking fashion he breaks from one subject when it has been only partly discussed and later returns to it. It is rhetorical also and gives free rein to what was then styled "Marshall's eloquence."

The warp and woof of Marshall's address was woven from his military experience; he forged iron arguments from the materials of his own soldier life. Two thirds of his remarks were about the necessity of providing against war. But the speech is notable as showing, in their infancy, those views of government which, in the shaggy strength of their maturity, were to be so influential on American destiny.¹²⁴⁹ It also measures the growth of those ideas of government which the camp, the march, and the battlefield had planted in his mind and heart. The practical and immediate effect of the speech, which was what the Constitutionalists, and perhaps Marshall himself, cared most about, was to strengthen the soldier vote for the Constitution and to cause the Kentucky members to suspend judgment on the Mississippi question.

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 black ribbon 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, asked Mason, would be in Congress from Virginia? Most of them would be "chosen … from the higher order of the people – from the great, the wealthy – the well-born– the well-born, Mr. Chairman, that aristocratic idol – that flattering idea – that exotic plant 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