The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

CHAPTER X

IN THE GREAT CONVENTION

There is no alternative between the adoption of it [the Constitution] and anarchy. (Washington.)

I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. (Henry.)

More, much more, went forward in the Virginia struggle than appeared upon the surface. Noble as was the epochal debate in Virginia's Constitutional Convention, it was not so influential on votes of the members as were other methods1111 employed by both sides. Very practical politicians, indeed, were these contending moulders of destiny.

Having in mind the Pennsylvania storm; with the picture before them of the delicate and skillful piloting by which alone the Constitution had escaped the rocks in the tempestuous Massachusetts seas; with the hurricane gathering in New York and its low thunders heard even from States that had ratified – the Virginia Constitutionalists took no chances, neglected no precaution. Throughout the country the Constitutionalists were now acting with disciplined dispatch.

Intelligence of the New Hampshire Convention, of their success in which the Constitutionalists finally had made sure, was arranged to be carried by swift riders and relays of horses across country to Hamilton in New York; and "any expense which you may incur will be cheerfully repaid," King assured Langdon.1112 As to Virginia, Hamilton wrote Madison to send news of "any decisive question … if favorable … by an express … with pointed orders to make all possible diligence, by changing horses etc."; assuring Madison, as King did Langdon, that "all expense shall be thankfully and liberally paid."1113

The Constitutionalists, great and small, in other States were watching Virginia's Convention through the glasses of an infinite apprehension. "I fear that overwhelming torrent, Patrick Henry," General Knox confided to King.1114 Even before Massachusetts had ratified, one Jeremiah Hill thought that "the fate of this Constitution and the political Salvation of the united States depend cheifly on the part that Virginia and this State [Massachusetts] take in the Matter."1115 Hamilton's lieutenant, King, while in Boston helping the Constitutionalists there, wrote to Madison: "You can with difficulty conceive the real anxiety experienced in Massachusetts concerning your decision."1116 "Our chance of success depends on you," was Hamilton's own despairing appeal to the then leader of the Southern Constitutionalists. "If you do well there is a gleam of hope; but certainly I think not otherwise."1117 The worried New York Constitutionalist commander was sure that Virginia would settle the fate of the proposed National Government. "God grant that Virginia may accede. The example will have a vast influence."1118

Virginia's importance justified the anxiety concerning her action. Not only was the Old Dominion preëminent in the part she had taken in the Revolution, and in the distinction of her sons like Henry, Jefferson, and Washington, whose names were better known in other States than those of many of their own most prominent men; but she also was the most important State in the Confederation in population and, at that time, in resources. "Her population," says Grigsby, "was over three fourths of all that of New England;… not far from double that of Pennsylvania;… or from three times that of New York … over three fourths of all the population of the Southern States;… and more than a fifth of the population of the whole Union."1119

The Virginia Constitutionalists had chosen their candidates for the State Convention with painstaking care. Personal popularity, family influence, public reputation, business and financial power, and everything which might contribute to their strength with the people, had been delicately weighed. The people simply would not vote against such men as Pendleton, Wythe, and Carrington;1120 and these and others like them accordingly were selected by the Constitutionalists as candidates in places where the people, otherwise, would have chosen antagonists to the Constitution.

More than one fourth of the Virginia Convention of one hundred and seventy members had been soldiers in the Revolutionary War; and nearly all of them followed Washington in his desire for a strong National Government. Practically all of Virginia's officers were members of the Cincinnati; and these were a compact band of stern supporters of the "New Plan."1121 Some of the members had been Tories, and these were stingingly lashed in debate by Mason; but they were strong in social position, wealth, and family connections, and all of them were for the Constitution.1122

No practical detail of election day had been overlooked by the Constitutionalists. Colonel William Moore wrote to Madison, before the election came off: "You know the disadvantage of being absent at elections… I must therefore entreat and conjure you – nay, command you, if it were in my power – to be here."1123 The Constitutionalists slipped in members wherever possible and by any device.

Particularly in Henrico County, where Richmond was situated, had conditions been sadly confused. Edmund Randolph, then Governor of the State, who next to Washington was Virginia's most conspicuous delegate to the Federal Convention, had refused to sign the Constitution and was, therefore, popularly supposed to be against it. October 17, 1787, he wrote a letter to the Speaker of the House of Delegates explaining his reasons for dissent. He approved the main features of the proposed plan for a National Government but declared that it had fatal defects, should be amended before ratification, a new Federal Convention called to pass upon the amendments of the various States, and, thereafter, the Constitution as amended again submitted for ratification to State Conventions.1124 Randolph, however, did not send this communication to the Speaker "lest in the diversity of opinion I should excite a contest unfavorable to that harmony with which I trust that great subject will be discussed."1125 But it was privately printed in Richmond and Randolph sent a copy to Washington. On January 3, 1788, the letter was published in the Virginia Gazette together with other correspondence. In an additional paragraph, which does not appear in Randolph's letter as reproduced in Elliott, he said that he would "regulate himself by the spirit of America" and that he would do his best to amend the Constitution prior to ratification, but if he could not succeed he would accept the "New Plan" as it stood.1126 But he had declared to Richard Henry Lee that "either a monarchy or aristocracy will be generated" by it.1127

Thus Randolph to all appearances occupied middle ground. But, publicly, he was in favor of making strenuous efforts to amend the Constitution as a condition of ratification, and of calling a second Federal Convention; and these were the means by which the Anti-Constitutionalists designed to accomplish the defeat of the "New Plan." The opponents of the proposed National Government worked hard with Randolph to strengthen his resolution and he gave them little cause to doubt their success.1128

But the Constitutionalists were also busy with the Governor and with greater effect. Washington wrote an adroit and persuasive letter designed to win him entirely over to a whole-hearted and unqualified advocacy of the Constitution. The question was, said Washington, the acceptance of the Constitution or "a dissolution of the Union."1129 Madison, in a subtle mingling of flattery, argument, and insinuation, skillfully besought his "dear friend" Randolph to come out for the Constitution fully and without reserve. If only Randolph had stood for the Constitution, wrote Madison, "it would have given it a decided and unalterable preponderancy," and Henry would have been "baffled."

The New England opposition, Madison assured Randolph, was from "that part of the people who have a repugnance in general to good government … a part of whom are known to aim at confusion and are suspected of wishing a reversal of the Revolution… Nothing can be further from your [Randolph's] views than the principles of the different sets of men who have carried on their opposition under the respectability of your name."1130

Randolph finally abandoned all opposition and resolved to support the Constitution even to the point of resisting the very plan he had himself proposed and insisted upon; but nobody, with the possible exception of Washington, was informed of this Constitutionalist master-stroke until the Convention met;1131 and, if Washington knew, he kept the secret. Thus, although the Constitutionalists were not yet sure of Randolph, they put up no candidate against him in Henrico County, where the people were very much opposed to the Constitution. To have done so would have been useless in any event; for Randolph could have been elected almost unanimously if his hostility to the proposed Government had been more vigorous, so decided were the people's dislike and distrust of it, and so great, as yet, the Governor's popularity. He wrote Madison a day or two before the election that nothing but his personal popularity "could send me; my politicks not being sufficiently strenuous against the Constitution."1132 The people chose their beloved young Governor, never imagining that he would appear as the leading champion of the Constitution on the Convention floor and actually oppose amending it before ratification.1133

But the people were not in the dark when they voted for the only candidate the Constitutionalists openly brought out in Henrico County. John Marshall was for the proposed National Government, outright and aboveboard. He was vastly concerned. We find him figuring out the result of the election in northern Virginia and concluding "that the question will be very nice."1134 Marshall had been made the Constitutionalist candidate solely because of his personal popularity. As it was, even the people's confidence in him barely had saved Marshall.

"Marshall is in danger," wrote Randolph; "but F. [Dr. Foushee, the Anti-Constitutionalist candidate] is not popular enough on other scores to be elected, altho' he is perfectly a Henryite."1135 Marshall admitted that the people who elected Randolph and himself were against the Constitution; and declared that he owed his own election to his individual strength with the people.1136 Thus two strong champions of the Constitution had been secured from an Anti-Constitutionalist constituency; and these were only examples of other cases.

The Anti-Constitutionalists, too, straining every nerve to elect their men, resorted to all possible devices to arouse the suspicions, distrust, and fears of the people. "The opposition to it [the Constitution] … is addressed more to the passions than to the reason," declared Washington.1137

Henry was feverishly active. He wrote flaming letters to Kentucky that the Mississippi would be lost if the new plan of government were adopted.1138 He told the people that a religious establishment would be set up.1139 The Reverend John Blair Smith, President of Hampden Sidney College, declared that Henry "has descended to lower artifices and management … than I thought him capable of."1140 Writing to Hamilton of the activities of the opposition, Washington asserted that "their assiduity stands unrivalled";1141 and he informed Trumbull that "the opponents of the Constitution are indefatigable."1142

"Every art that could inflame the passions or touch the interests of men have been essayed; – the ignorant have been told that should the proposed government obtain, their lands would be taken from them and their property disposed of; – and all ranks are informed that the prohibition of the Navigation of the Mississippi (their favorite object) will be a certain consequence of the adoption of the Constitution."1143

Plausible and restrained Richard Henry Lee warned the people that "by means of taxes, the government may command the whole or any part of the subjects' property";1144 and that the Constitution "promised a large field of employment to military gentlemen, and gentlemen of the law; and in case the government shall be executed without convulsions, it will afford security to creditors, to the clergy, salary-men and others depending on money payments."1145

Nor did the efforts of the Virginia opponents of a National establishment stop there. They spread the poison of personal slander also. "They have attempted to vilify & debase the characters who formed" the Constitution, complained Washington.1146 These cunning expedients on one side and desperate artifices on the other were continued during the sitting of the Virginia Convention by all the craft and guile of practical politics.

After the election, Madison reported to Jefferson in Paris that the Northern Neck and the Valley had elected members friendly to the Constitution, the counties south of the James unfriendly members, the "intermediate district" a mixed membership, with Kentucky divided. In this report, Madison counts Marshall fifth in importance of all Constitutionalists elected, and puts only Pendleton, Wythe, Blair, and Innes ahead of him.1147

When the Convention was called to order, it made up a striking and remarkable body. Judges and soldiers, lawyers and doctors, preachers, planters, merchants, and Indian fighters, were there. Scarcely a field fought over during the long, red years of the Revolution but had its representative on that historic floor. Statesmen and jurists of three generations were members.1148

From the first the Constitutionalists displayed better tactics and discipline than their opponents, just as they had shown greater skill and astuteness in selecting candidates for election. They arranged everything beforehand and carried their plans out with precision. For the important position of President of the Convention, they agreed on the venerable Chancellor, Edmund Pendleton, who was able, judicial, and universally respected. He was nominated by his associate, Judge Paul Carrington, and unanimously elected.1149

In the same way, Wythe, who was learned, trusted, and beloved, and who had been the teacher of many members of the Convention, was made Chairman of the Committee of the Whole. The Anti-Constitutionalists did not dare to oppose either Pendleton or Wythe for these strategic places. They had made the mistake of not agreeing among themselves on strong and influential candidates for these offices and of nominating them before the Constitutionalists acted. For the first time in Virginia's history, a shorthand reporter, David Robertson, appeared to take down a stenographic report of the debates; and this innovation was bitterly resented and resisted by the opposition1150 as a Constitutionalist maneuver.1151 Marshall was appointed a member of the committee1152 which examined the returns of the elections of members and also heard several contested election cases.1153

At the beginning the Anti-Constitutionalists did not decide upon a plan of action – did not carefully weigh their course of procedure. No sooner had rules been adopted, and the Constitution and official documents relating to it laid before the Convention, than their second tactical mistake was made; and made by one of their very ablest and most accomplished leaders. When George Mason arose, everybody knew that the foes of the Constitution were about to develop the first move in their order of battle. Spectators and members were breathless with suspense. Mason was the author of Virginia's Constitution and Bill of Rights and one of the most honorable, able, and esteemed members of the Legislature.

He had been a delegate to the Federal Convention and, with Randolph, had refused to sign the Constitution. Sixty-two years old, his snow-white hair contrasting with his blazing dark eyes, his commanding stature clad in black silk, his full, clear voice deliberate and controlled, George Mason was an impressive figure as he stood forth to strike the first blow at the new ordinance of Nationality.1154 On so important a subject, he did not think any rules should prevent "the fullest and clearest investigation." God's curse would be small compared with "what will justly fall upon us, if from any sinister views we obstruct the fullest inquiry." The Constitution, declared Mason, should be debated, "clause by clause," before any question was put.1155

The Constitutionalists, keen-eyed for any strategic blunder of their adversaries, took instant advantage of Mason's bad generalship. Madison suavely agreed with Mason,1156 and it was unanimously resolved that the Constitution should be "discussed clause by clause through all its parts,"1157 before any question should be put as to the instrument itself or any part of it. Thus the opposition presented to the Constitutionalists the very method the latter wished for, and had themselves planned to secure, on their own initiative.1158 The strength of the foes of the proposed National Government was in attacking it as a whole; their weakness, in discussing its specific provisions. The danger of the Constitutionalists lay in a general debate on the large theory and results of the Constitution; their safety, in presenting in detail the merits of its separate parts.

While the fight over the Constitution was partly an economic class struggle, it was in another and a larger phase a battle between those who thought nationally and those who thought provincially. In hostile array were two central ideas: one, of a strong National Government acting directly on men; the other, of a weak confederated league merely suggesting action to States. It was not only an economic contest, but also, and even more, a conflict by those to whom "liberty" meant unrestrained freedom of action and speech, against those to whom such "liberty" meant tumult and social chaos.

The mouths of the former were filled with those dread and sounding words "despotism" and "arbitrary power"; the latter loudly denounced "enemies of order" and "foes of government." The one wanted no bits in the mouth of democracy, or, at most, soft ones with loose reins and lax hand; the other wished a stout curb, stiff rein, and strong arm. The whole controversy, on its popular side, resounded with misty yet stirring language about "liberty," "aristocracy," "tyranny," "anarchy," "licentiousness"; and yet "debtor," "creditor," "property and taxes," "payment and repudiation," were heard among the more picturesque and thrilling terms. In this fundamental struggle of antagonistic theories, the practical advantage for the hour was overwhelmingly with those who resisted the Constitution.

They had on their side the fears of the people, who, as has appeared, looked on all government with suspicion, on any vital government with hostility, and on a great central Government as some distant and monstrous thing, too far away to be within their reach, too powerful to be resisted, too high and exalted for the good of the common man, too dangerous to be tried. It was, to the masses, something new, vague, and awful; something to oppress the poor, the weak, the debtor, the settler; something to strengthen and enrich the already strong and opulent, the merchant, the creditor, the financial interests.

True, the people had suffered by the loose arrangement under which they now lived; but, after all, had not they and their "liberties" survived? And surely they would suffer even more, they felt, under this stronger power; but would they and their "liberties" survive its "oppression"? They thought not. And did not many of the ablest, purest, and most trusted public characters in the Old Dominion think the same? Here was ammunition and to spare for Patrick Henry and George Mason, Tyler and Grayson, Bland and Harrison – ammunition and to spare, with their guns planted on the heights, if they could center their fire on the Constitution as a single proposition.

But they had been sleeping and now awoke to find their position surrendered, and themselves compelled, if Mason's resolutions were strictly followed, to make the assault in piecemeal on detached parts of the "New Plan," many of which, taken by themselves, could not be successfully combated. Although they tried to recover their lost ground and did regain much of it, yet the Anti-Constitutionalists were hampered throughout the debate by this initial error in parliamentary strategy.1159

And now the Constitutionalists were eager to push the fighting. The soldierly Lee was all for haste. The Anti-Constitutionalists held back. Mason protested "against hurrying them precipitately." Harrison said "that many of the members had not yet arrived."1160 On the third day, the Convention went into committee of the whole, with the astute and venerable Wythe in the chair. Hardly had this brisk, erect little figure – clad in single-breasted coat and vest, standing collar and white cravat, bald, except on the back of the head, from which unqueued and unribboned gray hair fell and curled up from the neck1161– taken the gavel before Patrick Henry was on his feet.

Henry moved for the reading of the acts by authority of which the Federal Convention at Philadelphia had met,1162 for they would show the work of that Convention to be illegal and the Constitution the revolutionary creature of usurped power. If Henry could fix on the advocates of stronger law and sterner order the brand of lawlessness and disorder in framing the very plan they now were championing, much of the mistake of yesterday might be retrieved.

But it was too late. Helped from his seat and leaning on his crutches, Pendleton was recognized by Wythe before Henry could get the eye of the chair to speak upon his motion; and the veteran jurist crushed Henry's purpose before the great orator could make it plain. "We are not to consider," said Pendleton, "whether the Federal Convention exceeded their powers." That question "ought not to influence our deliberations." Even if the framers of the Constitution had acted without authority, Virginia's Legislature afterwards had referred it to the people who had elected the present Convention to pass upon it.1163 Pendleton's brief speech was decisive;1164 Henry withdrew his motion; the preamble and the first two sections of the first article of the Constitution were laid before the committee and the destiny-determining debate began.

The Constitutionalists, who throughout the contest never made a mistake in the men they selected to debate or the time when they should speak, had chosen skillfully the parliamentary artillerist to fire their opening gun. They did not wait for the enemy's attack, but discharged the first shot themselves. Quickly there arose a broad, squat, ungainly man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with a nose like the beak of an eagle, and a voice clear and emotionless.1165 George Nicholas had been a brave, brilliant soldier and was one of the ablest and best-equipped lawyers in the State. He was utterly fearless, whether in battle on the field or in debate on the floor. His family and connections were powerful. In argument and reasoning he was the equal if not the superior of Madison himself; and his grim personality made the meek one of Madison seem tender in comparison. Nothing could disconcert him, nothing daunt his cold courage. He probably was the only man in the Convention whom Henry feared.1166

Nicholas was glad, he said, that the Convention was to act with the "fullest deliberation." First he thrust at the method of the opposition to influence members by efforts outside the Convention itself; and went on with a clear, logical, and informed exposition of the sections then under consideration. He ended by saying "that he was willing to trust his own happiness, and that of his posterity, to the operation of that system."1167

The Constitution's enemies, thus far out-pointed by its perfectly trained and harmonious supporters, could delay no longer. Up rose the idol and champion of the people. Although only fifty-two years old, he had changed greatly in appearance since the days of his earlier triumphs. The erect form was now stooped; spectacles now covered the flashing eyes and the reddish-brown hair was replaced by a wig, which, in the excitement of speech, he frequently pushed this way and that. But the wizard brain still held its cunning, the magic tongue which, twenty-three years ago had trumpeted Independence, still wrought its spell.1168 Patrick Henry began his last great fight.

What, asked Henry, were the reasons for this change of government? A year ago the public mind was "at perfect repose"; now it was "uneasy and disquieted." "A wrong step now … and our republic may be lost." It was a great consolidated Government that the Constitutionalists proposed, solemnly asserted Henry. What right, he asked, had the framers of the Constitution to say, "We, the people, instead of We, the states"? He demanded the cause of that fundamental change. "Even from that illustrious man [Washington] who saved us by his valor, I would have a reason for his conduct." The Constitution-makers had no authority except to amend the old system under which the people were getting along very well. Why had they done what they had no power to do?1169