The Life of John Marshall
Chapter 45 : Randolph then reviewed the state of the country under the Confederation: Congress power

Randolph then reviewed the state of the country under the Confederation: Congress powerless, public credit ruined, treaties violated, prices falling, trade paralyzed, "and justice trampled under foot." The world looks upon Americans "as little wanton bees, who had played for liberty, but had no sufficient solidity or wisdom" to keep it. True, the Federal Convention had exceeded its authority, but there was nothing else to be done. And why not use the expression "We, the people"? Was the new Government not for them? The Union is now at stake, and, exclaimed he, "I am a friend to the Union."[1173]

The secret was out, at last; the Const.i.tutionalists' _coup_ was revealed. His speech placed Randolph openly and unreservedly on their side. "The Governor has ... thrown himself fully into the federal scale," gleefully reported the anxious Madison to the supreme Nationalist chieftain at Mount Vernon.[1174] "The G[overno]r exhibited a curious spectacle to view. Having refused to sign the paper [the Const.i.tution] everybody supposed him against it," was Jefferson's comment on Randolph's change of front.[1175] Was.h.i.+ngton, perfectly informed, wrote Jay in New York that "Mr. Randolph's declaration will have considerable effect with those who had hitherto been wavering."[1176] Theodoric Bland wrote bitterly to Arthur Lee that, "Our chief magistrate has at length taken his party and appears to be reprobated by the honest of both sides.... He has openly declared for posterior amendments, or in other words, unconditional submission."[1177]

All of Randolph's influence, popularity, and prestige of family were to be counted for the Const.i.tution without previous amendment; and this was a far weightier force, in the practical business of getting votes for ratification, than oratory or argument.[1178] So "the sanguine friends of the Const.i.tution counted upon a majority of twenty ... which number they imagine will be greatly increased."[1179]

Randolph's sensational about-face saved the Const.i.tution. Nothing that its advocates did during these seething three weeks of able discussion and skillful planning accomplished half so much to secure ratification.

Was.h.i.+ngton's tremendous influence, aggressive as it was tactful, which, as Monroe truly said, "carried" the new National plan, was not so practically effective as his work in winning Randolph. For, aside from his uncloaked support, the Virginia Governor at that moment had a doc.u.ment under lock and key which, had even rumor of it got abroad, surely would have doomed the Const.i.tution, ended the debate abruptly, and resulted in another Federal Convention to deal anew with the Articles of Confederation.

By now the Anti-Const.i.tutionalists, or Republicans as they had already begun to call themselves, also were acting in concert throughout the country. Their tactics were c.u.mbersome and tardy compared with the prompt celerity of the well-managed Const.i.tutionalists; but they were just as earnest and determined. The Society of the Federal Republicans had been formed in New York to defeat the proposed National Government and to call a second Federal Convention. It opened correspondence in most of the States and had agents and officers in many of them.

New York was overwhelmingly against the Const.i.tution, and her Governor, George Clinton, was the most stubborn and resourceful of its foes. On December 27, 1787, Governor Randolph, under the formal direction of Virginia's Legislature, had sent the Governors of the other States a copy of the act providing for Virginia's Convention, which included the clause for conferring with her sister Commonwealths upon the calling of a new Federal Convention. The one to Clinton of New York was delayed in the mails for exactly two months and eleven days, just long enough to prevent New York's Legislature from acting on it.[1180]

After pondering over it for a month, the New York leader of the Anti-Const.i.tutionalist forces wrote Governor Randolph, more than three weeks before the Virginia Convention a.s.sembled, the now famous letter stating that Clinton was sure that the New York Convention, to be held June 17, "will, with great cordiality, hold a communication with any sister State on the important subject [a new Federal Convention] and especially with one so respectable in point of importance, ability, and patriotism as Virginia"; and Clinton a.s.sumed that the Virginia Convention would "commence the measures for holding such communications."[1181]

When Clinton thus wrote to Randolph, he supposed, of course, that the Virginia Governor was against the Const.i.tution. Had the New York Executive known that Randolph had been proselyted by the Const.i.tutionalists, Clinton would have written to Henry, or Mason, or taken some other means of getting his letter before the Virginia Convention. Randolph kept all knowledge of Clinton's fatal communication from everybody excepting his Executive Council. He did not make it public until after the long, hard struggle was ended; when, for the first time, too late to be of any effect, he laid the New York communication before the Virginia Legislature which a.s.sembled just as the Convention was adjourning.[1182]

Weighty as were the arguments and brilliant the oratory that made the Virginia debate one of the n.o.blest displays of intellect and emotion which the world ever has seen, yet nothing can be plainer than that other practices on both sides of that immortal struggle were more decisive of the result than the amazing forensic duel that took place on the floor of the Convention hall.

When one reflects that although the weight of fact and reason was decisively in favor of the Const.i.tutionalists; that their forces were better organized and more ably led; that they had on the ground to help them the most astute politicians from other States as well as from Virginia; that Was.h.i.+ngton aggressively supported them with all his incalculable moral influence; that, if the new National Government were established, this herculean man surely would be President with all the practical power of that office, of which patronage was not the least--when one considers that, notwithstanding all of these and many other crus.h.i.+ng advantages possessed by the Const.i.tutionalists, their majority, when the test vote finally came, was only eight out of a total vote of one hundred and sixty-eight; when one takes into account the fact that, to make up even this slender majority, one or two members violated their instructions and several others voted against the known will of their const.i.tuents, it becomes plain how vitally necessary to their cause was the Const.i.tutionalists' capture of the Virginia Governor.[1183]

The opponents of the proposed National Government never forgave him nor was his reputation ever entirely reestablished. Mason thereafter scathingly referred to Randolph as "young A[rno]ld."[1184]

Answering Randolph, Mason went to the heart of the subject. "Whether the Const.i.tution be good or bad," said he, "it is a national government and no longer a Confederation ... that the new plan provides for." The power of direct taxation alone "is calculated to annihilate totally the state governments." It means, said Mason, individual taxation "by two different and distinct powers" which "cannot exist long together; the one will destroy the other." One National Government is not fitted for an extensive country. "Popular governments can only exist in small territories." A consolidated government "is one of the worst curses that can possibly befall a nation." Clear as this now was, when the Convention came to consider the Judiciary clause, everybody would, Mason thought, "be more convinced that this government will terminate in the annihilation of the state governments."

But here again the author of Virginia's Bill of Rights made a tactical mistake from the standpoint of the management of the fight, although it was big-hearted and statesmanlike in itself. "If," said he, "such amendments be introduced as shall exclude danger ... I shall most heartily make the greatest concessions ... to obtain ... conciliation and unanimity."[1185] No grindstone, this, to sharpen activity--no hammer and anvil, this, to shape and harden an unorganized opposition into a single fighting blade, wielded to bring victory or even to force honorable compromise. The suggestion of conciliation before the first skirmish was over was not the way to arouse the blood of combat in the loose, undisciplined ranks of the opposition.

Swift as any hawk, the Const.i.tutionalists pounced upon Mason's error, but they seized it gently as a dove. "It would give me great pleasure,"

cooed Madison, "to concur with my honorable colleague in any conciliatory plan." But the hour was now late, and he would postpone further remarks for the time being.[1186]

So the Convention adjourned and the day ended with the Const.i.tutionalists in high spirits.[1187] Madison wrote to Was.h.i.+ngton that "Henry & Mason made a lame figure & appeared to take different and awkward ground. The Federalists [Const.i.tutionalists][1188] are a good deal elated by the existing prospect." Nevertheless, the timid Madison fluttered with fear. "I dare not," wrote he, "speak with certainty as to the decision. Kentucky has been extremely tainted and is supposed to be generally adverse, and every possible piece of address is going on privately to work on the local interests & prejudices of that & other quarters."[1189]

The next day the building of the New Academy, where the Convention met, was packed with an eager throng. Everybody expected Madison to engage both Henry and Mason as he had intimated that he would do. But once more the excellent management of the Const.i.tutionalists was displayed.

Madison, personally, was not popular,[1190] he was physically unimpressive, and strong only in his superb intellect. The time to discharge the artillery of that powerful mind had not yet come. Madison was not the man for this particular moment. But Pendleton was, and so was "Light-Horse Harry" Lee. The Const.i.tutionalists combined the ermine and the sword. Virginia's most venerated jurist and her most das.h.i.+ng soldier were ordered to the front. In them there was an appeal to much that the Old Dominion still reverenced and loved, in spite of the "levelling spirit" manifest there as well as in Ma.s.sachusetts and other States. So when all eyes were turned on Madison's seat, they beheld it vacant. Madison had stayed away. Had he been present, he could not have avoided speaking.

Dramatic, indeed, appeared the white-haired, crippled jurist, as, struggling to his feet, he finally stood upon his crutches and faced the Convention. He had been unused to public debate for many years, and was thought to be so infirm that no one expected him to do more than make or decide points of order and give his vote. Yet there the feeble old man stood to answer the resistless Henry and the learned Mason. His ancient friend and brother justice, Wythe, leaned forward from his chair to catch the tones of the beloved voice. Tears rolled down the cheeks of some of the oldest members who for decades had been Pendleton's friends.[1191] The Const.i.tutionalists had set the stage to catch the emotions which they affected to despise, with the very character whose strength was in that pure reasoning on which they pretended solely to rely.

Without wasting a word, Pendleton came to the point. Henry, he said, had declared that all was well before "this Federal system was thought of."

Was that accurate? In a few short sentences he showed that it was not.

There was, said Pendleton, "no quarrel between government and liberty; the former is s.h.i.+eld and protector of the latter. The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society to preserve liberty." Why are the words "We, the people," improper? "Who but the people have a right to form government?... What have the state governments to do with it?" Had the Federal Convention exceeded its powers? No. Because those powers were "to propose, not to determine."

"Suppose," asked the venerable Pendleton, "the paper on your table [the Const.i.tution] dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?" Of course. "Then the question must be between this government and the Confederation," which "is no government at all." The Confederation did not carry us through the war; "common danger and the spirit of America" did that. The cry "United we stand--divided we fall,"

which "echoed and reechoed through America--from Congress to the drunken carpenter"--saved us in that dark hour. And Pendleton clearly, briefly, solidly, answered every objection which Mason and Henry had made.

Nothing could have been more practically effective than his close. He was of no party, Pendleton avowed; and his "age and situation" proved that nothing but the general good influenced him.[1192]

The smouldering fires in Henry's blood now burned fiercely. This was the same Pendleton who had fought Henry in his immortal resolution on the Stamp Act in 1765 and in every other of those epochal battles for liberty and human rights which Henry had led and won.[1193] But the Const.i.tutionalists gave the old war horse no chance to charge upon his lifelong opponent. A young man, thirty-two years of age, rose, and, standing within a few feet of the chair, was recognized. Six feet tall, beautiful of face, with the resounding and fearless voice of a warrior, Henry Lee looked the part which reputation a.s.signed him. Descended from one of the oldest and most honorable families in the colony, a graduate of Princeton College, one of the most daring, picturesque, and attractive officers of the Revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant Lee was a perfect contrast to the venerable Pendleton.[1194]

Lee paid tribute to Henry's s.h.i.+ning talents; but, said he, "I trust that he [Henry] is come to judge, and not to alarm." Henry had praised Was.h.i.+ngton; yet Was.h.i.+ngton was for the Const.i.tution. What was there wrong with the expression "We, the people," since upon the people "it is to operate, if adopted"? Like every Const.i.tutionalist speaker, Lee painted in somber and forbidding colors the condition of the country, "all owing to the imbecility of the Confederation."[1195]

At last Henry secured the floor. At once he struck the major note of the opposition. "The question turns," said he, "on that poor little thing--the expression, 'We, the _people_; instead of the _states_.'" It was an "alarming transition ... a revolution[1196] as radical as that which separated us from Great Britain.... Sovereignty of the states ...

rights of conscience, trial by jury, liberty of the press, ... all pretensions of human rights and privileges" were imperiled if not lost by the change.

It _was_ the "despised" Confederation that had carried us through the war. Think well, he urged, before you part with it. "Revolutions like this have happened in almost every country in Europe." The new Government may prevent "licentiousness," but also "it will oppress and ruin the people," thundered their champion. The Const.i.tution was clear when it spoke of "sedition," but fatally vague when it spoke of "privileges." Where, asked Henry, were the dangers the Const.i.tutionalists conjured up? Purely imaginary! If any arose, he depended on "the American spirit" to defend us.

The method of amendment provided in the Const.i.tution, exclaimed Henry, was a mockery--it shut the door on amendment. "A contemptible minority can prevent the good of the majority." "A standing army" will "execute the execrable commands of tyranny," shouted Henry. And who, he asked, will punish them? "Will your mace-bearer be a match for a disciplined regiment?" If the Const.i.tution is adopted, "it will be because we like a great splendid" government. "The ropes and chains of consolidation" were "about to convert this country into a powerful and mighty empire." The Const.i.tution's so-called checks and balances, sneered Henry, were "rope-dancing, chain-rattling, ridiculous ... contrivances."

The Const.i.tutionalists talked of danger if the Confederation was continued; yet, under it, declared Henry, "peace and security, ease and content" were now the real lot of all. Why, then, attempt "to terrify us into an adoption of this new form of government?... Who knows the dangers this new system may produce? They are out of sight of the common people; they cannot foresee latent consequences." It was the operation of the proposed National Government "on the middling and lower cla.s.ses of people" that Henry feared. "This government" [the Const.i.tution], cried he, "is not a Virginian but an American government."

Throughout Henry's speech, in which he voiced, as he never failed to do, the thought of the ma.s.ses, a National Government is held up as a foreign power--even one so restricted as the literal words of the Const.i.tution outlined. Had the Const.i.tutionalists acknowledged those Nationalist opinions which, in later years, were to fall from the lips of a young member of the Convention and become the law of the land, the defeat of the Const.i.tution would have been certain, prompt, and overwhelming.

In the Const.i.tution's chief executive, Henry saw "a great and mighty President" with "the powers of a King ... to be supported in extravagant magnificence." The National Government's tax-gatherers would "ruin you with impunity," he warned his fellow members and the people they represented. Did not Virginia's own "state sheriffs, those unfeeling blood-suckers," even "under the watchful eye of our legislature commit the most horrid and barbarous ravages on our people? ... Lands have been sold," a.s.serted he, "for 5 s.h.i.+llings which were worth one hundred pounds." What, then, would happen to the people "if their master had been at Philadelphia or New York?" asked Henry. "These harpies may search at any time your houses and most secret recesses." Its friends talked about the beauty of the Const.i.tution, but to Henry its features were "horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy."

The President, "your American chief," can make himself absolute, dramatically exclaimed the great orator. "If ever he violates the laws ... he will come at the head of his army to carry everything before him; or he will give bail, or do what Mr. Chief Justice will order him."

But will he submit to punishment? Rather, he will "make one bold push for the American throne," prophesied Henry. "We shall have a king; the army will salute him monarch: your militia will leave you, and a.s.sist in making him king and fight against you."[1197] It would be infinitely better, he avowed, to have a government like Great Britain with "King, Lords, and Commons, than a government so replete with such insupportable evils" as the Const.i.tution contained.

Henry spoke of the danger of the power of Congress over elections, and the treaty-making power. A majority of the people were against the Const.i.tution, he said, and even "the adopting states have already heart-burnings and animosity and repent their precipitate hurry....

Pennsylvania has been tricked into" ratification. "If other states who have adopted it have not been tricked, still they were too much hurried.[1198] ... I have not said the one hundred thousandth part of what I have on my mind and wish to impart"--with these words of warning to the Const.i.tutionalists, Henry closed by apologizing for the time he had taken. He admitted that he had spoken out of order, but trusted that the Convention would hear him again.[1199]

Studying this attack and defense of master swordsmen, following the tactical maneuvers of America's ablest politicians, a partisan on one side, yet personally friendly with members of the other, John Marshall was waiting for the call that should bring him into the battle and, by the method which he employed throughout his life, preparing to respond when the Const.i.tutionalist managers should give the word. He was listening to the arguments on both sides, a.n.a.lyzing them, and, by that process of absorption with which he was so peculiarly and curiously gifted, mastering the subjects under discussion. Also, although casual, humorous, and apparently indifferent, he nevertheless was busy, we may be sure, with his winning ways among his fellow members.

Patrick Henry's effort was one of the two or three speeches made during the three weeks of debate which actually may have had an effect upon votes.[1200] The Const.i.tutionalists feared that Henry would take the floor next morning to follow up his success and deepen the profound impression he had made. To prevent this and to break the force of Henry's onslaught, they put forward Governor Randolph, who was quickly recognized by the chair. Madison and Nicholas were held in reserve.[1201]

But in vain did Randolph employ his powers of oratory, argument, and persuasion in the great speech beginning "I am a child of the Revolution," with which he attempted to answer Henry. There is no peace; "the tempest growls over you.... Justice is suffocated," he said; legal proceedings to collect debts are "obscured by legislative mists." As an ill.u.s.tration of justice, consider the case of Josiah Philips, executed without trial or witness, on a bill of attainder pa.s.sed without debate on the mere report of a member of the Legislature: "_This made the deepest impression on my heart and I cannot contemplate it without horror_."[1202] As to "the American spirit" expressed through the militia being competent to the defense of the State, Randolph asked: "Did ever militia defend a country?"

Randolph's speech was exhaustive and reached the heights of real eloquence. It all came to this, he said, Union or Dissolution, thus again repeating the argument Was.h.i.+ngton had urged in his letter to Randolph. "Let that glorious pride which once defied the British thunder, reanimate you again," he cried dramatically.[1203] But his fervor, popularity, and influence were not enough.

Marshall, when he came to speak later in the debate, made the same mistake. No more striking ill.u.s.tration exists of how public men, in the hurry and pressure of large affairs, forget the most important events, even when they themselves were princ.i.p.al actors in them.

Although the time had not properly come for the great logician of the Const.i.tution to expound it, the situation now precipitated the psychological hour for him to strike. The chair recognized a slender, short-statured man of thirty-seven, wearing a handsome costume of blue and buff with doubled straight collar and white ruffles on breast and at wrists. His hair, combed forward to conceal baldness, was powdered and fell behind in the long beribboned queue of fas.h.i.+on. He was so small that he could not be seen by all the members; and his voice was so weak that only rarely could he be heard throughout the hall.[1204] Such was James Madison as he stood, hat in hand and his notes in his hat, and began the first of those powerful speeches, the strength of which, in spite of poor reporting, has projected itself through more than a hundred years.

At first he spoke so low that even the reporter could not catch what he said.[1205] He would not, remarked Madison, attempt to impress anybody by "ardent professions of zeal for the public welfare." Men should be judged by deeds and not by words. The real point was whether the Const.i.tution would be a good thing or a bad thing for the country. Henry had mentioned the dangers concealed in the Const.i.tution; let him specify and prove them. One by one he caught and crushed Henry's points in the jaws of merciless logic.

What, for the gentle Madison, was a bold blow at the opposition shows how even he was angered. "The inflammatory violence wherewith it [the Const.i.tution] was opposed by designing, illiberal, and unthinking minds, begins to subside. I will not enumerate the causes from which, in my conception, the heart-burnings of a majority of its opposers have originated." His argument was unanswerable as a matter of pure reason and large statesmans.h.i.+p, but it made little headway and had only slight if any influence. "I am not so sanguine," reported Was.h.i.+ngton's nephew to the General at Mount Vernon, "as to ... flatter myself that he made many converts."[1206]

The third gun of the powerful battery which the Const.i.tutionalists had arranged to batter down the results of Henry's speech was now brought into action. George Nicholas again took the floor. He was surprised that Mason's resolution to debate the Const.i.tution clause by clause had not been followed. But it had not been, and therefore he must speak at large. While Nicholas advanced nothing new, his address was a masterpiece of compact reasoning.[1207]

Age and middle age had spoken for the Const.i.tution; voices from the bench and the camp, from the bar and the seats of the mighty, had pleaded for it; and now the Const.i.tutionalists appealed to the very young men of the Convention through one of the most attractive of their number. The week must not close with Henry's visions of desolation uppermost in the minds of the members. On Sat.u.r.day morning the chair recognized Francis Corbin of Middles.e.x. He was twenty-eight years old and of a family which had lived in Virginia from the early part of the seventeenth century. He had been educated in England at the University of Cambridge, studied law at the Inner Temple, was a trained lawyer, and a polished man of the world.

Corbin made one of the best speeches of the whole debate. On the nonpayment of our debts to foreign nations he was particularly strong.

"What!" said he, "borrow money to discharge interest on what was borrowed?... Such a plan would destroy the richest country on earth." As to a Republican Government not being fitted for an extensive country, he asked, "How small must a country be to suit the genius of Republicanism?" The power of taxation was the "lungs of the Const.i.tution." His defense of a standing army was novel and ingenious.

The speech was tactful in the deference paid to older men, and so captivating in the pride it must have aroused in the younger members that it justified the shrewdness of the Const.i.tutionalist generals in putting forward this youthful and charming figure.[1208]

Of course Henry could not follow a mere boy. He cleverly asked that Governor Randolph should finish, as the latter had promised to do.[1209] Randolph could not avoid responding; and his speech, while very able, was nevertheless an attempt to explode powder already burned.[1210] Madison saw this, and getting the eye of the chair delivered the second of those intellectual broadsides, which, together with his other mental efforts during the Const.i.tutional period, mark him as almost the first, if not indeed the very first, mind of his time.[1211] The philosophy and method of taxation, the history and reason of government, the whole range of the vast subject were discussed,[1212] or rather begun; for Madison did not finish, and took up the subject four days later. His effort so exhausted him physically that he was ill for three days.[1213]

Thus fortune favored Henry. The day, Sat.u.r.day, was not yet spent. After all, he could leave the last impression on the members and spectators, could apply fresh color to the picture he wished his hearers to have before their eyes until the next week renewed the conflict. And he could retain the floor so as to open again when Monday came. The art of Henry in this speech was supreme. He began by stating the substance of Thomas Paine's terrific sentence about government being, at best, "a necessary evil"; and aroused anew that repugnance to any st.u.r.dy rule which was a general feeling in the b.r.e.a.s.t.s of the ma.s.ses.

Both the Confederation and the proposed Const.i.tution were "evils,"

a.s.serted Henry, and the only question was which was the less. Randolph and Madison incautiously had referred to maxims. Henry seized the word with infinite skill. "It is impiously irritating the avenging hand of Heaven ... to desert those maxims which alone can preserve liberty," he thundered. They were lowly maxims, to be sure, "poor little, humble republican maxims"; but "humble as they are" they alone could make a nation safe or formidable. He rang the changes on the catchwords of liberty.

Then Henry spoke of Randolph's change of front. The Const.i.tution "was once execrated" by Randolph. "It seems to me very strange and unaccountable that that which was the object of his execration should now receive his encomiums. Something extraordinary must have operated so great a change in his opinion." Randolph had said that it was too late to oppose the "New Plan"; but, answered Henry, "I can never believe that it is too late to save all that is precious." Henry denied the woeful state of the country which the Const.i.tutionalist speakers had pictured.