The Life of John Marshall
Chapter 44 : Intelligence of the New Hamps.h.i.+re Convention, of their success in which the Const.i

Intelligence of the New Hamps.h.i.+re Convention, of their success in which the Const.i.tutionalists 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 a.s.sured 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."; a.s.suring Madison, as King did Langdon, that "all expense shall be thankfully and liberally paid."[1113]

The Const.i.tutionalists, great and small, in other States were watching Virginia's Convention through the gla.s.ses of an infinite apprehension.

"I fear that overwhelming torrent, Patrick Henry," General Knox confided to King.[1114] Even before Ma.s.sachusetts had ratified, one Jeremiah Hill thought that "the fate of this Const.i.tution and the political Salvation of the united States depend cheifly on the part that Virginia and this State [Ma.s.sachusetts] take in the Matter."[1115] Hamilton's lieutenant, King, while in Boston helping the Const.i.tutionalists there, wrote to Madison: "You can with difficulty conceive the real anxiety experienced in Ma.s.sachusetts concerning your decision."[1116] "Our chance of success depends on you," was Hamilton's own despairing appeal to the then leader of the Southern Const.i.tutionalists. "If you do well there is a gleam of hope; but certainly I think not otherwise."[1117] The worried New York Const.i.tutionalist commander was sure that Virginia would settle the fate of the proposed National Government. "G.o.d 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 preeminent in the part she had taken in the Revolution, and in the distinction of her sons like Henry, Jefferson, and Was.h.i.+ngton, 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 Const.i.tutionalists 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 Const.i.tutionalists as candidates in places where the people, otherwise, would have chosen antagonists to the Const.i.tution.

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 Was.h.i.+ngton 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 Const.i.tution.[1122]

No practical detail of election day had been overlooked by the Const.i.tutionalists. 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 Const.i.tutionalists 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 Was.h.i.+ngton was Virginia's most conspicuous delegate to the Federal Convention, had refused to sign the Const.i.tution 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 pa.s.s upon the amendments of the various States, and, thereafter, the Const.i.tution 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 Was.h.i.+ngton. 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 Const.i.tution 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 Const.i.tution as a condition of ratification, and of calling a second Federal Convention; and these were the means by which the Anti-Const.i.tutionalists 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 Const.i.tutionalists were also busy with the Governor and with greater effect. Was.h.i.+ngton wrote an adroit and persuasive letter designed to win him entirely over to a whole-hearted and unqualified advocacy of the Const.i.tution. The question was, said Was.h.i.+ngton, the acceptance of the Const.i.tution 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 Const.i.tution fully and without reserve. If only Randolph had stood for the Const.i.tution, wrote Madison, "it would have given it a decided and unalterable preponderancy," and Henry would have been "baffled."

The New England opposition, Madison a.s.sured 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 wis.h.i.+ng 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 Const.i.tution even to the point of resisting the very plan he had himself proposed and insisted upon; but n.o.body, with the possible exception of Was.h.i.+ngton, was informed of this Const.i.tutionalist master-stroke until the Convention met;[1131] and, if Was.h.i.+ngton knew, he kept the secret.

Thus, although the Const.i.tutionalists 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 Const.i.tution. 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 Const.i.tution."[1132] The people chose their beloved young Governor, never imagining that he would appear as the leading champion of the Const.i.tution 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 Const.i.tutionalists 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 Const.i.tutionalist 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-Const.i.tutionalist 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 Const.i.tution; and declared that he owed his own election to his individual strength with the people.[1136] Thus two strong champions of the Const.i.tution had been secured from an Anti-Const.i.tutionalist const.i.tuency; and these were only examples of other cases.

The Anti-Const.i.tutionalists, 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 Const.i.tution] ... is addressed more to the pa.s.sions than to the reason,"

declared Was.h.i.+ngton.[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, Was.h.i.+ngton a.s.serted that "their a.s.siduity stands unrivalled";[1141] and he informed Trumbull that "the opponents of the Const.i.tution are indefatigable."[1142]

"Every art that could inflame the pa.s.sions 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 Const.i.tution."[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 Const.i.tution "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 Const.i.tution, complained Was.h.i.+ngton.[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 Const.i.tution, the counties south of the James unfriendly members, the "intermediate district" a mixed members.h.i.+p, with Kentucky divided. In this report, Madison counts Marshall fifth in importance of all Const.i.tutionalists 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 Const.i.tutionalists 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 a.s.sociate, 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-Const.i.tutionalists 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 Const.i.tutionalists 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 opposition[1150] as a Const.i.tutionalist maneuver.[1151] Marshall was appointed a member of the committee[1152]

which examined the returns of the elections of members and also heard several contested election cases.[1153]

[Ill.u.s.tration: GEORGE WYTHE]

At the beginning the Anti-Const.i.tutionalists did not decide upon a plan of action--did not carefully weigh their course of procedure. No sooner had rules been adopted, and the Const.i.tution and official doc.u.ments 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution. 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." G.o.d's curse would be small compared with "what will justly fall upon us, if from any sinister views we obstruct the fullest inquiry." The Const.i.tution, declared Mason, should be debated, "clause by clause," before any question was put.[1155]

The Const.i.tutionalists, keen-eyed for any strategic blunder of their adversaries, took instant advantage of Mason's bad generals.h.i.+p. Madison suavely agreed with Mason,[1156] and it was unanimously resolved that the Const.i.tution 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 Const.i.tutionalists 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 Const.i.tutionalists lay in a general debate on the large theory and results of the Const.i.tution; their safety, in presenting in detail the merits of its separate parts.

While the fight over the Const.i.tution was partly an economic cla.s.s 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 Const.i.tution.

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 ma.s.ses, 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 Const.i.tution 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 a.s.sault 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-Const.i.tutionalists were hampered throughout the debate by this initial error in parliamentary strategy.[1159]

And now the Const.i.tutionalists were eager to push the fighting. The soldierly Lee was all for haste. The Anti-Const.i.tutionalists 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 neck[1161]--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 Const.i.tution 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 Const.i.tution had acted without authority, Virginia's Legislature afterwards had referred it to the people who had elected the present Convention to pa.s.s 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 Const.i.tution were laid before the committee and the destiny-determining debate began.

The Const.i.tutionalists, 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," s.h.a.ggy 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 Const.i.tution'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 flas.h.i.+ng 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 Const.i.tutionalists proposed, solemnly a.s.serted Henry. What right, he asked, had the framers of the Const.i.tution to say, "_We, the people_, instead of _We, the states_"? He demanded the cause of that fundamental change. "Even from that ill.u.s.trious man [Was.h.i.+ngton] who saved us by his valor, I would have a reason for his conduct." The Const.i.tution-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]

Thus Henry put the Const.i.tutionalists on the defensive. But they were ready. Instantly, Randolph was on his feet. He was thirty-seven years of age, fas.h.i.+oned on n.o.ble physical lines, with handsome face and flowing hair. His was one of Virginia's most distinguished families, his connections were influential, and he himself was the petted darling of the people. His luxuriant mind had been highly trained, his rich and sonorous voice gave an added charm to his words.[1170] He was the ostensible author[1171] of the plan on the broad lines of which the Const.i.tution finally had been built. His refusal to sign it because of changes which he thought necessary, and his conversion to the extreme Const.i.tutionalist position, which he now, for the first time, was fully to disclose, made him the strongest single a.s.set the Const.i.tutionalists had acquired. Randolph's open, bold, and, to the public, sudden champions.h.i.+p of the Const.i.tution was the explosion in the opposition's camp of a bomb which they had hoped and believed their own ammunition.

Never before, said Randolph, had such a vast event come to a head without war or force. It might well be feared that the best wisdom would be unequal to the emergency and that pa.s.sion might prevail over reason.

He warned the opposition that the chair "well knows what is order, how to command obedience, and that political opinions may be as honest on one side as on the other." Randolph then tried to explain his change. "I had not even the glimpse of the genius of America," said he of his refusal to sign the report of the Federal Convention. But it was now so late that to insist on amendments before ratification would mean "inevitable ruin to the Union";[1172] and he would strike off his arm rather than permit that.