Chapter I: Preface

The work of John Marshall has been of supreme importance in the development of the American Nation, and its influence grows as time passes. Less is known of Marshall, however, than of any of the great Americans. Indeed, so little has been written of his personal life, and such exalted, if vague, encomium has been paid him, that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth.

He appears to us as a gigantic figure looming, indistinctly, out of the mists of the past, impressive yet lacking vitality, and seemingly without any of those qualities that make historic personages intelligible to a living world of living men. Yet no man in our history was more intensely human than John Marshall and few had careers so full of movement and color. His personal life, his characteristics and the incidents that drew them out, have here been set forth so that we may behold the man as he appeared to those among whom he lived and worked.

It is, of course, Marshall's public work with which we are chiefly concerned. His services as Chief Justice have been so lauded that what he did before he ascended the Supreme Bench has been almost entirely forgotten. His greatest opinions, however, cannot be fully understood without considering his previous life and experience. An account of Marshall the frontiersman, soldier, legislator, lawyer, politician, diplomat, and statesman, and of the conditions he faced in each of these capacities, is essential to a comprehension of Marshall the constructive jurist and of the problems he solved.

In order to make clear the significance of Marshall's public activities, those episodes in American history into which his life was woven have been briefly stated. Although to the historian these are twice-told tales, many of them are not fresh in the minds of the reading public. To say that Marshall took this or that position with reference to the events and questions of his time, without some explanation of them, means little to any one except to the historical scholar.

In the development of his career there must be some clear understanding of the impression made upon him by the actions and opinions of other men, and these, accordingly, have been considered. The influence of his father and of Washington upon John Marshall was profound and determinative, while his life finally became so interlaced with that of Jefferson that a faithful account of the one requires a careful examination of the other.

Vitally important in their effect upon the conduct and attitude of Marshall and of the leading characters of his time were the state of the country, the condition of the people, and the tendency of popular thought. Some reconstruction of the period has, therefore, been attempted. Without a background, the picture and the figures in it lose much of their significance.

The present volumes narrate the life of John Marshall before his epochal labors as Chief Justice began. While this was the period during which events prepared him for his work on the bench, it was also a distinctive phase of his career and, in itself, as important as it was picturesque. It is my purpose to write the final part as soon as the nature of the task permits.

For reading one draft of the manuscript of these volumes I am indebted to Professor Edward Channing, of Harvard University; Dr. J. Franklin Jameson, of the Carnegie Foundation for Historical Research; Professor William E. Dodd, of Chicago University; Professor James A. Woodburn, of Indiana University; Professor Charles A. Beard, of Columbia University; Professor Charles H. Ambler, of Randolph-Macon College; Professor Clarence W. Alvord, of the University of Illinois; Professor D. R. Anderson, of Richmond College; Dr. H. J. Eckenrode, of Richmond College; Dr. Archibald C. Coolidge, Director of the Harvard University Library; Mr. Worthington C. Ford, of the Massachusetts Historical Society; and Mr. Lindsay Swift, Editor of the Boston Public Library. Dr. William G. Stanard, of the Virginia Historical Society, has read the chapters which touch upon the colonial period. I have availed myself of the many helpful suggestions made by these gentlemen and I gratefully acknowledge my obligations to them.

Mr. Swift and Dr. Eckenrode, in addition to reading early drafts of the manuscript, have read the last draft with particular care and I have utilized their criticisms. The proof has been read by Mr. Swift and the comment of this finished critic has been especially valuable.

I am indebted in the highest possible degree to Mr. Worthington C. Ford, of the Massachusetts Historical Society, who has generously aided me with his profound and extensive knowledge of manuscript sources and of the history of the times of which this work treats. His sympathetic interest and whole-hearted helpfulness have not only assisted me, but encouraged and sustained me in the prosecution of my labors.

In making these acknowledgments, I do not in the least shift to other shoulders the responsibility for anything in these volumes. That burden is mine alone.

I extend my thanks to Mr. A. P. C. Griffin, Assistant Librarian, and Mr. Gaillard Hunt, Chief of the Manuscripts Division, of the Library of Congress, who have been unsparing in their efforts to assist me with all the resources of that great library. The officers and their assistants of the Virginia State Library, the Boston Public Library, the Library of Harvard University, the Manuscripts Division of the New York Public Library, the Massachusetts Historical Society, the Pennsylvania Historical Society, and the Virginia Historical Society have been most gracious in affording me all the sources at their command.

I desire to express my appreciation for original material furnished me by several of the descendants and collateral relatives of John Marshall. Miss Emily Harvie, of Richmond, Virginia, placed at my disposal many letters of Marshall to his wife. For the use of the book in which Marshall kept his accounts and wrote notes of law lectures, I am indebted to Mrs. John K. Mason, of Richmond. A large number of original and unpublished letters of Marshall were furnished me by Mr. James M. Marshall, of Front Royal, Virginia, Mr. Robert Y. Conrad, of Winchester, Virginia; Mrs. Alexander H. Sands, of Richmond, Virginia; Miss Sallie Marshall, of Leeds, Virginia; Mrs. Claudia Jones, and Mrs. Fannie G. Campbell of Washington, D.C.; Judge J. K. M. Norton, of Alexandria, Virginia; Mr. A. Moore, Jr., of Berryville, Virginia; Dr. Samuel Eliot Morison, of Boston, Massachusetts, and Professor Charles William Dabney, of Cincinnati, Ohio. Complete copies of the highly valuable correspondence of Mrs. Edward Carrington were supplied by Mr. John B. Minor, of Richmond, Virginia, and by Mr. Carter H. FitzHugh, of Lake Forest, Illinois. Without the material thus generously opened to me, this narrative of Marshall's life would have been more incomplete than it is and many statements in it would, necessarily, have been based on unsupported tradition.

Among the many who have aided me, Judge James Keith, of Richmond, Virginia, until recently President of the Court of Appeals of Virginia; Judge J. K. M. Norton and the late Miss Nannie Burwell Norton of Alexandria, Virginia; Mr. William Marshall Bullitt, of Louisville, Kentucky; Mr. Thomas Marshall Smith, of Baltimore, Maryland; Mr. and Mrs. Alexander H. Sands; Mr. W. P. Taylor and Dr. H. Norton Mason, of Richmond, Virginia; Mr. Lucien Keith, Mr. William Horgan, and Mr. William C. Marshall, of Warrenton, Virginia; Judge Henry H. Downing and Mr. Aubrey G. Weaver, of Front Royal, Virginia, have rendered notable assistance in the gathering of data.

I am under particular obligations to Miss Emily Harvie for the use of the striking miniature of Marshall, the reproduction of which appears as the frontispiece to the first volume; to Mr. Roland Gray, of Boston, for the right to reproduce the portrait by Jarvis as the frontispiece of the second volume; to Mr. Douglas H. Thomas of Baltimore, Maryland, for photographs of the portraits of William Randolph, Mary Isham, and Mary Randolph Keith; and to Mr. Charles Edward Marshall, of Glen Mary, Kentucky, for permission to photograph the portrait of Colonel Thomas Marshall.

The large number of citations has made abbreviations necessary. At the end of each volume will be found a careful explanation of references, giving the full title of the work cited, together with the name of the author or editor, and a designation of the edition used.

The index has been made by Mr. David Maydole Matteson, of Cambridge, Massachusetts, and his careful work has added to whatever of value these volumes possess.

ALBERT J. BEVERIDGE

CONTENTS

I. ANCESTRY AND ENVIRONMENT 1

The defeat of Braddock--Influence on American opinion--
Washington's heroism--Effect on Marshall's parents--
Marshall's birth--American solidarity the first lesson
taught him--Marshall's ancestry--Curious similarity to
that of Jefferson, to whom he was related--The paternal
line: the "Marshall legend"--Maternal line: the Randolphs,
the Ishams, and the Keiths--Character of Marshall's
parents--Colonial Virginia society--Shiftless agriculture
and abundant land--Influence of slavery--Jefferson's
analysis--Drinking heavy and universal--Education of the
gentry and of the common people--The social divisions--
Causes of the aristocratic tone of Virginia society--
The backwoodsmen--Their character--Superiority of an
occasional frontier family--The Marshalls of this class--
The illustrious men produced by Virginia just before the
Revolution.

II. A FRONTIER EDUCATION 33

Marshall's wilderness birthplace--His father removes to
the Blue Ridge--The little house in "The Hollow"--Neighbors
few and distant--Daily life of the frontier family--
Marshall's delight in nature--Effect on his physical and
mental development--His admiration for his father--The
father's influence over and training of his son--Books:
Pope's Poems--Marshall commits to memory at the age of
twelve many passages--The "Essay on Man"--Marshall's father
an assistant of Washington in surveying the Fairfax grant--
Story of Lord Fairfax--His influence on Washington and on
Marshall's father--Effect on Marshall--His father elected
Burgess from Fauquier County--Vestryman, Sheriff, and
leading man of his county--He buys the land in "The
Hollow"--John Thompson, deacon, teaches Marshall for a
year--His father buys more land and removes to Oak Hill--
Subscribes to the first American edition of Blackstone--
Military training interferes with Marshall's reading of
Blackstone--He is sent to Campbell's Academy for a few
months--Marshall's father as Burgess supports Patrick
Henry, who defeats the tidewater aristocracy in the Robinson
loan-office contest--Henry offers his resolutions on the
Stamp Act: "If this be treason, make the most of it"--
Marshall's father votes with Henry--1775 and Henry's
"Resolutions for Arming and Defense"--His famous speech:
"Give me liberty or give me death"--Marshall's father again
supports Henry--Marshall learns from his father of these
great events--Father and son ready to take the field against
the British.

III. A SOLDIER OF THE REVOLUTION 69

The "Minute Men" of Virginia--Lieutenant John Marshall
drills his company and makes a war speech--His appearance
in his nineteenth year--Uniforms of the frontier--The
sanguinary fight at Great Bridge--Norfolk--The Marshalls
in the Continental service, the father as major, the son as
lieutenant--Condition of the army--Confusion of authority--
Unreliability of militia "who are here to-day and gone
to-morrow"--Fatal effect of State control--Inefficiency
and powerlessness of Congress--Destitution of the troops:
"our sick naked and well naked"--Officers resign, privates
desert--The harsh discipline required: men whipped, hanged,
and shot--Impression on Marshall--He is promoted to
be captain-lieutenant--The march through disaffected
Philadelphia--Marshall one of picked men forming the
light infantry--Iron Hill--The battle of the Brandywine--
Marshall's father and his Virginians prevent entire
disaster--Marshall's part in the battle--The retreat--
The weather saves the Americans--Marshall one of rear guard
under Wayne--The army recovers and tries to stop the British
advance--Confused by false reports of the country people who
are against the patriots "almost to a man"--Philadelphia
falls--The battle of Germantown--Marshall at the bloodiest
point of the fight--The retreat of the beaten Americans--
Unreasonable demands of "public opinion"--Further decline
of American fortunes--Duché's letter to Washington:
"How fruitless the expense of blood"--Washington faces the
British--The impending battle--Marshall's vivid description--
The British withdraw.

IV. VALLEY FORGE AND AFTER 108

The bitter winter of 1777--The British in Philadelphia:
abundance of provisions, warm and comfortable quarters,
social gayeties, revels of officers and men--The Americans
at Valley Forge, "the most celebrated encampment in the
world's history": starvation and nakedness--Surgeon Waldo's
diary of "camp-life": "I'll live like a Chameleon upon
Air"--Waldo's description of soldiers' appearance--Terrible
mortality from sickness--The filthy "hospitals"--Moravians
at Bethlehem--The Good Samaritans to the patriots--Marshall's
cheerfulness: "the best tempered man I ever knew"--His pranks
and jokes--Visitors to the camp remark his superior
intelligence--Settles disputes of his comrades--Hard
discipline at Valley Forge: a woman given a hundred lashes--
Washington alone holds army together--Jealousy of and
shameful attacks upon him--The "Conway Cabal"--His dignity in
the face of slander--His indignant letter to Congress--Faith
of the soldiers in Washington--The absurd popular demand that
he attack Philadelphia--The amazing inferiority of Congress--
Ablest men refuse to attend--Washington's pathetic letter on
the subject: "Send your ablest men to Congress; Where is
Jefferson"--Talk of the soldiers at Valley Forge--Jefferson
in the Virginia Legislature--Comparison of Marshall and
Jefferson at this period--Marshall appointed Deputy Judge
Advocate of the army--Burnaby's appeal to Washington to stop
the war: efforts at reconciliation--Washington's account of
the sufferings of the army--The spring of 1778--Sports in
camp--Marshall the best athlete in his regiment: "Silver
Heels" Marshall--The Alliance with the King of France--
Rejoicing of the Americans at Valley Forge--Washington has
misgivings--The services of Baron von Steuben--Lord Howe's
departure--The "Mischianza"--The British evacuate
Philadelphia--The Americans quick in pursuit--The battle of
Monmouth--Marshall in the thick of the fight--His fairness to
Lee--Promoted to be captain--One of select light infantry
under Wayne, assigned to take Stony Point--The assault of
that stronghold--Marshall in the reserve command--One of the
picked men under "Light Horse Harry" Lee--The brilliant dash
upon Powles Hook--Term of enlistment of Marshall's regiment
expires and he is left without a command--Returns to Virginia
while waiting for new troops to be raised--Arnold invades
Virginia--Jefferson is Governor; he fails to prepare--Marshall
one of party to attack the British--Effect of Jefferson's
conduct on Marshall and the people--Comment of Virginia
women--Inquiry in Legislature as to Jefferson's conduct--
Effect of Marshall's army experience on his thinking--The
roots of his great Nationalist opinions run back to Valley
Forge.

V. MARRIAGE AND LAW BEGINNINGS 148

Marshall's romance--Visits his father who is commanding
at Yorktown--Mythical story of his father's capture at
Charleston--The Ambler family--Rebecca Burwell, Jefferson's
early love--Attractiveness of the Amblers--The "ball" at
Yorktown--High expectations of the young women concerning
Marshall--Their disappointment at his uncouth appearance and
rustic manners--He meets Mary Ambler--Mutual love at first
sight--Her sister's description of the ball and of Marshall--
The courtship--Marshall goes to William and Mary College for
a few weeks--Description of the college--Marshall elected to
the Phi Beta Kappa Society--Attends the law lectures of
Mr. Wythe--The Ambler daughters pass though Williamsburg--
The "ball" at "The Palace"--Eliza Ambler's account:
"Marshall was devoted to my sister"--Marshall leaves college
and follows Mary Ambler to Richmond--Secures license to
practice law--Resigns his command--Walks to Philadelphia to
be inoculated against smallpox--Tavern-keeper refuses to
take him in because of his appearance--Returns to Virginia
and resumes his courtship of Mary Ambler--Marshall's account
of his love-making--His sister-in-law's description of
Marshall's suit--Marshall's father goes to Kentucky and
returns--Marshall elected to the Legislature from Fauquier
County--He marries Mary Ambler: "but one solitary guinea
left"--Financial condition of Marshall's father at this
time--Lack of ready money everywhere--Marshall's account--
He sets up housekeeping in Richmond--Description of Richmond
at that time--Brilliant bar of the town--"Marshall's slender
legal equipment"--The notes he made of Mr. Wythe's lectures--
His Account Book--Examples of his earnings and expenditures
from 1783 until 1787--Life of the period--His jolly letter to
Monroe--His books--Elected City Recorder--Marshall's first
notable case: Hite vs. Fairfax--His first recorded argument--
His wife becomes an invalid--His tender care of her--Mrs.
Carrington's account: Marshall "always and under every
circumstance, an enthusiast in love."

VI. IN THE LEGISLATURE AND COUNCIL OF STATE 200

In the House of Delegates--The building where the Legislature
met--Costumes and manners of the members---Marshall's
popularity and his father's influence secure his election--
He is appointed on important committees--His first vote--
examples of legislative business--Poor quality of the
Legislature: Madison's disgust, Washington's opinion--
Marshall's description and remarkable error--He is elected
member of Council of State--Pendleton criticizes the
elevation of Marshall--Work as member of Council--Resigns
from Council because of criticism of judges--Seeks and
secures reëlection to Legislature from Fauquier County--
Inaccuracy of accepted account of these incidents--Marshall's
letter to Monroe stating the facts--Becomes champion of needy
Revolutionary soldiers--Leads fight for relief of Thomas
Paine--Examples of temper of the Legislature--Marshall favors
new Constitution for Virginia--The "Potowmack Company"--Bills
concerning courts--Reform of the High Court of Chancery--
The religious controversy--State of religion in Virginia--
Marshall's languid interest in the subject--Great question
of the British debts--Long-continued fight over payment or
confiscation--Marshall steadily votes and works for payment
of the debts--Effect of this contest on his economic and
political views--His letter to Monroe--Instability of
Legislature: a majority of thirty-three changed in two weeks
to an adverse majority of forty-nine--No National Government--
Resolution against allowing Congress to lay any tax whatever:
"May prove destructive of rights and liberties of the
people"--The debts of the Confederation--Madison's extradition
bill--Contempt of the pioneers for treaties--Settlers' unjust
and brutal treatment of the Indians--Struggle over Madison's
bill--Patrick Henry saves it--Marshall supports it--Henry's
bill for amalgamation of Indians and whites--Marshall regrets
its defeat--Anti-National sentiment of the people--Steady
change in Marshall's ideas--Mercantile and financial interests
secure the Constitution--Shall Virginia call a Convention to
ratify it?--Marshall harmonizes differences and Convention is
called--He is in the first clash over Nationalism.

VII. LIFE OF THE PEOPLE: COMMUNITY ISOLATION 250

The state of the country--A résumé of conditions--Revolutionary
leaders begin to doubt the people--Causes of this doubt--
Isolation of communities--Highways and roads--Difficulty and
danger of travel--The road from Philadelphia to Boston: between
Boston and New York--Roads in interior of New England, New York,
Philadelphia, and New Jersey--Jefferson's account of roads from
Richmond to New York--Traveler lost in the "very thick woods" on
way from Alexandria to Mount Vernon to visit Washington--Travel
and transportation in Virginia--Ruinous effect on commerce--
Chastellux lost on journey to Monticello to visit Jefferson--
Talleyrand's description of country--Slowness of mails--Three
weeks or a month and sometimes two months required between
Virginia and New York--Mail several months in reaching interior
towns--News that Massachusetts had ratified the Constitution
eight days in reaching New York--Ocean mail service--letters
opened by postmasters or carriers--Scarcity of newspapers--
Their untrustworthiness--Their violent abuse of public men--
Franklin's denunciation of the press: he advises "the liberty
of the cudgel" to restrain "the liberty of the press"--
Jefferson's disgust--The country newspaper: Freneau's "The
Country Printer"--The scantiness of education--Teachers and
schools--The backwoodsmen--The source of abnormal American
individualism--The successive waves of settlers--Their
ignorance, improvidence, and lack of social ideals--Habits and
characteristics of Virginians--Jefferson's harsh description
of them--Food of the people--Their houses--Continuous drinking
of brandy, rum, and whiskey--This common to whole country--
Lack of community consciousness--Abhorrence of any National
Government.

VIII. POPULAR ANTAGONISM TO GOVERNMENT 288

Thomas Paine's "Common Sense"--Its tremendous influence:
"Government, even in its best state, is but a necessary
evil"--Popular antagonism to the very idea of government--
Impossibility of correcting falsehoods told to the people--
Popular credulity--The local demagogue--North Carolina
preacher's idea of the Constitution--Grotesque campaign story
about Washington and Adams--Persistence of political canard
against Levin Powell--Amazing statements about the Society of
the Cincinnati: Ædanus Burke's pamphlet; Mirabeau's pamphlet;
Jefferson's denunciation--Marshall and his father members of
the Cincinnati--Effect upon him of the extravagant abuse of
this patriotic order--Popular desire for general division of
property and repudiation of debts--Madison's bitter comment--
Jay on popular greed and "impatience of government"--Paper
money--Popular idea of money--Shays's Rebellion--Marshall's
analysis of its objects--Knox's report of it--Madison comes
to the conclusion that "the bulk of mankind" are incapable
of dealing with weighty subjects--Washington in despair--He
declares mankind unfit for their own government--Marshall
also fears that "man is incapable of governing himself"--
Jefferson in Paris--Effect on his mind of conditions in
France--His description of the French people--Jefferson
applauds Shays's Rebellion: "The tree of liberty must be
refreshed by the blood of patriots and tyrants"--Influence
of French philosophy on Jefferson--The impotence of Congress
under the Confederation--Dishonorable conduct of the States--
Leading men ascribe evil conditions to the people themselves--
Views of Washington, Jay, and Madison--State Sovereignty the
shield of turmoil and baseness--Efforts of commercial and
financial interests produce the Constitution--Madison wants
a National Government with power of veto on all State laws
"whatsoever"--Jefferson thinks the Articles of Confederation
"a wonderfully perfect instrument"--He opposes a "strong
government"--Is apprehensive of the Constitution--Thinks
destruction of credit a good thing--Wishes America "to stand
with respect to Europe precisely on the footing of China"--
The line of cleavage regarding the Constitution--Marshall for
the Constitution.

IX. THE STRUGGLE FOR RATIFICATION 319

The historic Convention of 1788 assembles--Richmond at that
time--General ignorance of the Constitution--Even most members
of the Convention poorly informed--Vague popular idea of
Constitution as something foreign, powerful, and forbidding--
People in Virginia strongly opposed to it--The Virginia debate
to be the greatest ever held over the Constitution--The
revolutionary character of the Constitution: would not have
been framed if the people had known of the purposes of the
Federal Convention at Philadelphia: "A child of fortune"--
Ratification hurried--Pennsylvania Convention: hastily called,
physical violence, small number of people vote at election of
members to Pennsylvania Convention--People's ignorance of the
Constitution--Charges of the opposition--"The humble address
of the low born"--Debate in Pennsylvania Convention--Able
"Address of Minority"--Nationalism of the Constitution the
principal objection--Letters of "Centinel": the Constitution
"a spurious brat"--Attack on Robert Morris--Constitutionalist
replies: "Sowers of sedition"--Madison alarmed--The struggle
in Massachusetts--Conciliatory tactics of Constitutionalists--
Upper classes for Constitution--Common people generally
opposed--Many towns refuse to send delegates to the
Convention--Contemporary descriptions of the elections--
High ability and character of Constitutionalist members--
Self-confessed ignorance and incapacity of opposition: Madison
writes that there is "Scarcely a man of respectability among
them"--Their pathetic fight against the Constitution--Examples
of their arguments--The bargain with Hancock secures enough
votes to ratify--The slender majority: one hundred and
sixty-eight vote against ratification--Methods of
Constitutionalists after ratification--Widgery's amusing
account: hogsheads of rum--Gerry's lament--Bribery charged--
New Hampshire almost rejects Constitution--Convention adjourned
to prevent defeat--"Little information among the people," but
most "men of property and abilities" for Constitution--
Constitution receives no deliberate consideration until debated
in the Virginia Convention--Notable ability of the leaders of
both sides in the Virginia contest.

X. IN THE GREAT CONVENTION 357

Virginia the deciding State--Anxiety of Constitutionalists
in other States--Hamilton writes Madison: "No hope unless
Virginia ratifies"--Economic and political importance of
Virginia--Extreme effort of both sides to elect members to the
Convention--Preëlection methods of the Constitutionalists--
They capture Randolph--Marshall elected from opposition
constituency--Preëlection methods of Anti-Constitutionalists--
The Convention meets--Neither side sure of a majority--
Perfect discipline and astute Convention tactics of the
Constitutionalists--They secure the two powerful offices
of the Convention--The opposition have no plan of action--
Description of George Mason--His grave error in parliamentary
tactics--Constitutionalists take advantage of it: the
Constitution to be debated clause by clause--Analysis of the
opposing forces: an economic class struggle, Nationalism
against provincialism--Henry tries to remedy Mason's mistake--
Pendleton speaks and the debate begins--Nicholas speaks--His
character and personal appearance--Patrick Henry secures the
floor--Description of Henry--He attacks the Constitution:
why "_we the people_ instead of _we_ the States"? Randolph
replies--His manner and appearance--His support of the
Constitution surprises the opposition--His speech--His
about-face saves the Constitution--The Clinton letter: if
Randolph discloses it the Anti-Constitutionalists will win--
He keeps it from knowledge of the Convention--Decisive
importance of Randolph's action--His change ascribed to
improper motives--Mason answers Randolph and again makes
tactical error--Madison fails to speak--Description of Edmund
Pendleton--He addresses the Convention: "the war is between
government and licentiousness"--"Light Horse Harry" Lee--The
ermine and the sword--Henry secures the floor--His great
speech: the Constitution "a revolution as radical as that
which separated us from Great Britain"--The proposed National
Government something foreign and monstrous--"This government
is not a Virginian but an American government"--Marshall
studies the arguments and methods of the debaters--Randolph
answers Henry: "I am a child of the Revolution"--His error
concerning Josiah Philips--His speech ineffective--Description
of James Madison--He makes the first of his powerful
expositions of the Constitution, but has little or no effect
on the votes of the members--Speech of youthful Francis
Corbin--Randolph's futile effort--Madison makes the second
of his masterful speeches--Henry replies--His wonderful art--
He attacks Randolph for his apostasy--He closes the first
week's debate with the Convention under his spell.

XI. THE SUPREME DEBATE 401

Political managers from other States appear--Gouverneur
Morris and Robert Morris for the Constitutionalists and
Eleazer Oswald for the opposition--Morris's letter:
"depredations on my purse"--Grayson's letter: "our affairs
suspended by a thread"--Opening second week of the debate--
The New Academy crowded--Henry resumes his speech--Appeals
to the Kentucky members, denounces secrecy of Federal
Convention, attacks Nationalism--Lee criticizes lobbying
"out of doors" and rebukes Henry--Randolph attacks Henry:
"If our friendship must fall, _let it fall like Lucifer,
never to rise again_"--Randolph challenges Henry: a duel
narrowly averted--Personal appearance of James Monroe--
He speaks for the Revolutionary soldiers against the
Constitution and makes no impression--Marshall put forward
by the Constitutionalists--Description of him: badly dressed,
poetic-looking, "habits convivial almost to excess"--
Best-liked man in the Convention; considered an orator--
Marshall's speech: Constitutionalists the "firm friends of
liberty"; "we, sir, idolize democracy"; only a National
Government can promote the general welfare--Marshall's
argument his first recorded expression on the Constitution--
Most of speech on necessity of providing against war and
inspired by his military experience--Description of Benjamin
Harrison--Mason attacks power of National taxation and sneers
at the "well-born"--He denounces Randolph--Lee answers with
a show of anger--William Grayson secures the floor--His
character, attainments, and appearance--His learned and
witty speech: "We are too young to know what we are good
for"--Pendleton answers: "government necessary to protect
liberty"--Madison makes his fourth great argument--Henry
replies: "the tyranny of Philadelphia [National Government]
may be like the tyranny of George III, a horrid, wretched,
dreadful picture"; Henry's vision of the West--Tremendous
effect on the Convention--Letter of Gouverneur Morris to
Hamilton describing the Convention--Madison's report to
Hamilton and to Washington: "the business is in the most
ticklish state that can be imagined"--Marshall speaks again--
Military speech: "_United we are strong, divided we fall_"--
Grayson answers Marshall--Mason and Henry refer to "vast
speculations": "we may be taxed for centuries to give
advantage to rapacious speculators"--Grayson's letter to
Dane--The advantage with the Anti-Constitutionalists at the
end of the second week.

XII. THE STRATEGY OF VICTORY 444

The climax of the fight--The Judiciary the weakest point for
the Constitutionalists--Reasons for this--Especially careful
plans of the Constitutionalists for this part of the debate--
Pendleton expounds the Judiciary clause--Mason attacks it--
His charge as to secret purpose of many Constitutionalists--
His extreme courtesy causes him again to make a tactical
error--He refers to the Fairfax grant--A clever appeal to
members from the Northern Neck--Madison's distinguished
address--Henry answers Madison--His thrilling speech: "Old
as I am, it is probable I may yet have the appellation of
_rebel_. As to this government [the Constitution] I despise
and abhor it"--Marshall takes the floor--Selected by the
Constitutionalists to make the principal argument for the
Judiciary clause--His speech prepared--The National Judiciary
"will benefit collective Society"; National Courts will be
as fair as State Courts; independence of judges necessary;
if Congress should pass an unconstitutional law the National
Courts "_would declare it void_"; they alone the only
"protection from an infringement of the Constitution";
State courts "crowded with suits which the life of man will
not see determined"; National Courts needed to relieve this
congestion; under the Constitution, States cannot be sued
in National Courts; the Constitution does not exclude trial
by jury: "Does the word _court_ only mean the judges?";
comparison with the Judiciary establishment of Virginia;
reply to Mason's argument on the Fairfax title; "what
security have you for justice? The independence of your
Judiciary!"--Marshall's speech unconnected and discursive,
but the Constitutionalists rest their case upon it--Madison's
report to Hamilton: "If we can weather the storm against the
Judiciary I shall hold the danger to be pretty well over"--
Anti-Constitutionalists try to prolong debate until meeting
of Legislature which is strongly against the Constitution--
Secession threatened--Madison's letter to Hamilton--Contest
so close that "ordinary casualties may vary the result"--
Henry answers Marshall--His compliment to the young lawyer--
His reference to the Indians arouses Colonel Stephen who
harshly assails Henry--Nicholas insults Henry, who demands
an explanation--Debate draws to a close--Mason intimates
forcible resistance to the Constitution--Lee rebukes him--
The Constitutionalists forestall Henry and offer amendments--
Henry's last speech: "Nine-tenths of the people" against
the Constitution; Henry's vision of the future; a sudden
and terrific storm aids his dramatic climax; members and
spectators in awe--The Legislature convenes--Quick, resolute
action of the Constitutionalists--Henry admits defeat--The
Virginia amendments--Absurdity of some of them--Necessary
to secure ratification--Marshall on the committee to report
amendments--Constitutionalists win by a majority of only
ten--Of these, two vote against their instructions and eight
vote against the well-known desires of their constituents--
The Clinton letter at last disclosed--Mason's wrath--Henry
prevents Anti-Constitutionalists from talking measures to
resist the new National Government--Washington's account:
"Impossible for anybody not on the spot to conceive what the
delicacy and danger of our situation have been."