The Life of John Marshall
Chapter 54 : On Tuesday morning, June 24, Pendleton called to the chair Thomas Mathews, one of the b

On Tuesday morning, June 24, Pendleton called to the chair Thomas Mathews, one of the best parliamentarians in the Convention, a stanch Const.i.tutionalist, a veteran of the Revolution, and a popular man.

Instantly Mathews recognized Wythe; for Henry was ready with his amendments, and, had an Anti-Const.i.tutionalist been in the chair, would have been able to offer them before Wythe could move for ratification.

Wythe, pale and fatigued, was so agitated that at first he could not speak plainly.[1330] After reviewing the whole subject, he said that to insist on previous amendments might dissolve the Union, whereas all necessary amendments could easily be had after ratification. Wythe then moved the Const.i.tutionalists' resolution for ratification.

In a towering rage, Henry rose for what, outside of the courtroom, was the last great speech of his life.[1331] He felt that he had been unjustly forestalled and that the battle against the Const.i.tution was failing because of the stern and unfair tactics of his foes.[1332] The Const.i.tutionalists admitted, said Henry, that the Const.i.tution was "capitally defective"; yet they proposed to ratify it without first remedying its conceded faults. This was so absurd that he was "sure the gentleman [Wythe] meant nothing but to amuse the committee. I know his candor," said Henry. "His proposal is an idea dreadful to me.... The great body of yeomanry are in decided opposition" to the Const.i.tution.

Henry declared that of his own personal knowledge "nine tenths of the people" in "nineteen counties adjacent to each other" were against the proposed new National Government. The Const.i.tutionalists' plan of "subsequent amendments will not do for men of this cast." And how do the people feel even in the States that had ratified it? Look at Pennsylvania! Only ten thousand out of seventy thousand of her people were represented in the Pennsylvania Convention.

If the Const.i.tution was ratified without previous amendments, Henry declared that he would "have nothing to do with it." He offered the Bill of Rights and amendments which he himself had drawn, proposing to refer them to the other States "for their consideration, previous to its [Const.i.tution's] ratification."[1333] Henry then turned upon the Const.i.tutionalists their own point by declaring that it was their plan of ratification without previous amendments which would endanger the Union.[1334] Randolph followed briefly and Dawson at great length.

Madison for the Const.i.tutionalists, and Grayson for the opposition, exerted themselves to the utmost. Nature aided Henry when he closed the day in an appeal such as only the supremely gifted can make.

[Ill.u.s.tration: PATRICK HENRY]

"I see," cried Henry, in rapt exaltation, "the awful immensity of the dangers with which it [the Const.i.tution] is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere."[1335]

In the midst of this trance-like spell which the master conjurer had thrown over his hearers, a terrible storm suddenly arose. Darkness fell upon the full light of day. Lightnings flashed and cras.h.i.+ng thunders shook the Convention hall. With the inspiration of genius this unrivaled actor made the tempest seem a part of his own denunciation. The scene became insupportable. Members rushed from their seats.[1336] As Henry closed, the tempest died away.

The spectators returned, the members recovered their composure, and the session was resumed.[1337] Nicholas coldly moved that the question be put at nine o'clock on the following morning. Clay and Ronald opposed, the latter declaring that without such amendments "as will secure the happiness of the people" he would "though much against his inclination vote against this Const.i.tution."

Anxious and prolonged were the conferences of the Const.i.tutionalist managers that night. The Legislature had convened. It was now or never for the friends of the Const.i.tution. The delay of a single day might lose them the contest. That night and the next morning they brought to bear every ounce of their strength. The Convention met for its final session on the historic 25th of June, with the Const.i.tutionalists in gravest apprehension. They were not sure that Henry would not carry out his threat to leave the hall; and they pictured to themselves the dreaded spectacle of that popular leader walking out at the head of the enraged opposition.[1338]

Into the hands of the burly Nicholas the Const.i.tutionalists wisely gave command. The moment the Convention was called to order, the chair recognized Nicholas, who acted instantly with his characteristically icy and merciless decision. "The friends of the Const.i.tution," said Nicholas, "wish to take up no more time, the matter being now fully discussed. They are convinced that further time will answer no end but to serve the cause of those who wish to destroy the Const.i.tution. We wish it to be ratified and such amendments as may be thought necessary to be subsequently considered by a committee in order to be recommended to Congress." Where, he defiantly asked, did the opposition get authority to say that the Const.i.tutionalists would not insist upon amendments after they had secured ratification of the Const.i.tution? They really wished for Wythe's amendments;[1339] and would "agree to any others which" would "not destroy the spirit of the Const.i.tution."

Nicholas moved the reading of Wythe's resolution in order that a vote might be taken upon it.[1340]

Tyler moved the reading of Henry's proposed amendments and Bill of Bights. Benjamin Harrison protested against the Const.i.tutionalists'

plan. He was for previous amendment, and thought Wythe's "measure of adoption to be unwarrantable, precipitate, and dangerously impolitic."

Madison rea.s.sured those who were fearful that the Const.i.tutionalists, if they won on ratification, would not further urge the amendments Wythe had offered; the Const.i.tutionalists then closed, as they had begun, with admirable strategy.

James Innes was Attorney-General. His duties had kept him frequently from the Convention. He was well educated, extremely popular, and had been one of the most gifted and gallant officers that Virginia had sent to the front during the Revolution. Physically he was a colossus, the largest man in that State of giants. Such was the popular and imposing champion which the Const.i.tutionalists had so well chosen to utter their parting word.[1341] And Innes did his utmost in the hardest of situations; for if he took too much time, he would endanger his own cause; if he did not make a deep impression, he would fail in the purpose for which he was put forward.[1342]

Men who heard Innes testify that "he spoke like one inspired."[1343] For the opposition the learned and accomplished Tyler closed the general debate. It was time wasted on both sides. But that nothing might be left undone, the Const.i.tutionalists now brought into action a rough, forthright member from the Valley. Zachariah Johnson spoke for "those who live in large, remote, back counties." He dwelt, he said, "among the poor people." The most that he could claim for himself was "to be of the middle rank." He had "a numerous offspring" and he was willing to trust their future to the Const.i.tution.[1344]

Henry could not restrain himself; but he would better not have spoken, for he admitted defeat. The anxious Const.i.tutionalists must have breathed a sigh of relief when Henry said that he would not leave the hall. Though "_overpowered in a good cause_, yet I will be a peaceable citizen." All he would try to do would be "to remove the defects of that system [the Const.i.tution] in a const.i.tutional way." And so, declared the scarred veteran as he yielded his sword to the victors, he would "patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness, of the people."

Wythe's resolution of ratification now came to a vote. No more carefully worded paper for the purposes it was intended to accomplish ever was laid before a deliberative body. It rea.s.sured those who feared the Const.i.tution, in language which went far to grant most of their demands; and while the resolve called for ratification, yet, "in order to relieve the apprehensions of those who may be solicitous for amendments," it provided that all necessary amendments be _recommended_ to Congress.

Thus did the Const.i.tutionalists, who had exhausted all the resources of management, debate, and personal persuasion, now find it necessary to resort to the most delicate tact.

The opposition moved to subst.i.tute for the ratification resolution one of their own, which declared "that previous to the ratification ... a declaration of rights ... together with amendments ... should be referred by this Convention to the other states ... for their consideration." On this, the first test vote of the struggle, the Const.i.tutionalists won by the slender majority of 8 out of a total of 168. On the main question which followed, the Anti-Const.i.tutionalists lost but one vote and the Const.i.tution escaped defeat by a majority of only 10.

To secure ratification, eight members of the Convention voted against the wishes of their const.i.tuents,[1345] and two ignored their instructions.[1346] Grayson openly but respectfully stated on the floor that the vote was the result of Was.h.i.+ngton's influence. "I think," said he, "that, were it not for one great character in America, so many men would not be for this government."[1347] Followers of their old commander as the members from the Valley were, the fear of the Indians had quite as much to do with getting their support for a stronger National Government as had the weight of Was.h.i.+ngton's influence.[1348]

Randolph "humbly supplicated one parting word" before the last vote was taken. It was a word of excuse and self-justification. His vote, he said, would be "ascribed by malice to motives unknown to his breast." He would "ask the mercy of G.o.d for every other act of his life," but for this he requested only Heaven's justice. He still objected to the Const.i.tution, but the ratification of it by eight States had now "reduced our deliberations to the single question of _Union_ or no _Union_."[1349] So closed the greatest debate ever held over the Const.i.tution and one of the ablest parliamentary contests of history.

A committee was appointed to report "a form of ratification pursuant to the first resolution"; and another was selected "to prepare and report such amendments as by them shall be deemed necessary."[1350] Marshall was chosen as a member of both these important committees.

The lengths to which the Const.i.tutionalists were driven in order to secure ratification are measured by the amendments they were forced to bring in. These numbered twenty, in addition to a Bill of Rights, which also had twenty articles. The ten amendments afterwards made to the Const.i.tution were hardly a shadow of those recommended by the Virginia Convention of 1788.

That body actually proposed that National excise or direct tax laws should not operate in any State, in case the State itself should collect its quota under State laws and through State officials; that two thirds of both houses of Congress, present, should be necessary to pa.s.s navigation laws or laws regulating commerce; that no army or regular troops should be "raised or kept up in time of peace" without the consent of two thirds of both houses, present; that the power of Congress over the seat of the National Government should be confined to police and administrative regulation. The Judiciary amendment would have imprisoned the Supreme Court within limits so narrow as to render that tribunal almost powerless and would have absolutely prevented the establishment of inferior National Courts, except those of Admiralty.[1351] Yet only on such terms could ratification be secured even by the small and uncertain majority that finally voted for it.

On June 25, Clinton's suppressed letter to Randolph was laid before the House of Delegates which had just convened.[1352] Mason was so furious that he drew up resolutions for an investigation of Randolph's conduct.[1353] But the deed was done, anger was unavailing, and the resolutions never were offered.[1354]

So frail was the Const.i.tutionalist strength that if the news of the New Hamps.h.i.+re ratification had not reached Virginia, it is more than probable that Jefferson's advice would have been followed and that the Old Dominion would have held back until all the amendments desired by the opposition had been made a part of the fundamental law;[1355] and the Const.i.tution would have been a far different and infinitely weaker instrument than it is.

Burning with wrath, the Anti-Const.i.tutionalists held a meeting on the night of the day of the vote for ratification, to consider measures for resisting the new National Government. The character of Patrick Henry never shone with greater l.u.s.ter than when he took the chair at this determined gathering of furious men. He had done his best against the Const.i.tution, said Henry, but he had done it in the "_proper place_"; the question was settled now and he advised his colleagues that "as true and faithful republicans, they had all better go home!"[1356] Well might Was.h.i.+ngton write that only "conciliatory conduct" got the Const.i.tution through;[1357] well might he declare that "it is nearly impossible for anybody who has not been on the spot (from any description) to conceive what the delicacy and danger of our situation have been."[1358]

And Marshall had been on the spot. Marshall had seen it all. Marshall had been a part of it all. From the first careful election programme of the Const.i.tutionalists, the young Richmond lawyer had been in every meeting where the plans of the managers were laid and the order of battle arranged. No man in all the country knew better than he, the hair's breadth by which the ordinance of our National Government escaped strangulation at its very birth. No one in America better understood how carefully and yet how boldly Nationalism must be advanced if it were to grow stronger or even to survive.

It was plain to Marshall that the formal adoption of the Const.i.tution did not end the battle. That conflict, indeed, was only beginning. The fight over ratification had been but the first phase of the struggle. We are now to behold the next stages of that great contest, each as dramatic as it was vital; and we shall observe how Marshall bore himself on every field of this mighty civil strife, note his development and mark his progress toward that supreme station for which events prepared him. We are to witness his efforts to uphold the National Government, not only with argument and political activity, but also with a readiness to draw the sword and employ military force. We shall look upon the mad scenes resulting in America from the terrific and b.l.o.o.d.y convulsion in Europe and measure the lasting effect the French Revolution produced upon the statesmen and people of the United States.

In short, we are to survey a strange swirl of forces, economic and emotional, throwing to the surface now one "issue" and now another, all of them centering in the sovereign question of Nationalism or States'

Rights.

FOOTNOTES:

[1298] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong.

[1299] Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.

[1300] See Grigsby, i, 278-79, for an able and sympathetic account from the point of view of the settler and debtor.

[1301] _Ib._, 280-84; Elliott, iii, 517-21.

[1302] Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the popular feeling against a strong National Government that, if the Anti-Const.i.tutionalists had concentrated their attack upon this secret purpose of the leading Const.i.tutionalists to make it such by easy stages, it is more than probable that the Const.i.tution would have been defeated.

[1303] Elliott, iii, 524.

[1304] His own and his father's lands in Fauquier County were derived through the Fairfax t.i.tle.

[1305] Grigsby, i, 290.

[1306] Elliott, iii, 530-39. For Marshall's repet.i.tion see _ib._, 551-62.

[1307] Elliott, iii, 539-46.

[1308] Grigsby, i, 297.

[1309] Virginia judges were, at this period, appointed by the General a.s.sembly. (Const.i.tution, 1776.)

[1310] "There are upwards of 4,000 suits now entered on the docket in the General Court; and the number is continually increasing. Where this will end the Lord only knows--should an Act pa.s.s to extend the term of the Courts sitting--it is thought that the number of Executors [executions] that would issue ... would be too heavy for our government to bear and that such a rapid transfer of Property would altogether stop the movement of our Machine." (Logan and Story, to Stephen Collins, Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.)

[1311] This form of argument by asking questions to which the answers must needs be favorable to his contention was peculiarly characteristic of Marshall.

[1312] The reporter makes Mason a.s.sert the reverse.

[1313] It is hard to see how Marshall arrived at this conclusion. But for the fact that Marshall prepared this speech, one would think the reporter erred.

[1314] See Marshall's argument in Hite _vs._ Fairfax, chap, V, _supra_; and see vol. III of this work.

Randolph made the clearest statement of the whole debate on the Fairfax question:--