The Life of John Marshall
Chapter 27 : John Marshall, of course, voted for it. While there is no record that he took part in t

John Marshall, of course, voted for it. While there is no record that he took part in the debate, yet it is plain that the contest strengthened his fast-growing Nationalist views. The extravagance of those who saw in the Bill of Rights only a hazy "liberty" which hid evil-doers from the law, and which caused even the cautious Madison to favor a "qualified interpretation" of that instrument, made a lasting impression on Marshall's mind.

But Marshall's support was not wholly influenced by the prudence and Nationalism of the measure. He wished to protect the Indians from the frontiersmen. He believed, with Henry, in encouraging friendly relations with them, even by white and red amalgamation. He earnestly supported Henry's bill for subsidizing marriages of natives and whites[743] and was disappointed by its defeat.

"We have rejected some bills," writes Marshall, "which in my conception would have been advantageous to the country. Among these, I rank the bill for encouraging intermarriages with the Indians. Our prejudices however, oppose themselves to our interests, and operate too powerfully for them."[744]

During the period between 1784 and 1787 when Marshall was out of the Legislature, the absolute need of a central Government that would enable the American people to act as a Nation became ever more urgent; but the dislike for such a Government also crystallized. The framing of the Const.i.tution by the Federal Convention at Philadelphia in 1787 never could have been brought about by any abstract notions of National honor and National power, nor by any of those high and rational ideas of government which it has become traditional to ascribe as the only source and cause of our fundamental law.

The people at large were in no frame of mind for any kind of government that meant power, taxes, and the restrictions which accompany orderly society. The determination of commercial and financial interests to get some plan adopted under which business could be transacted, was the most effective force that brought about the historic Convention at Philadelphia in 1787. Indeed, when that body met it was authorized only to amend the Articles of Confederation and chiefly as concerned the National regulation of commerce.[745]

Virginia delayed acting upon the Const.i.tution until most of the other States had ratified it. The Old Dominion, which had led in the Revolution, was one of the last Commonwealths to call her Convention to consider the "new plan" of a National Government. The opposition to the proposed fundamental law was, as we shall see, general and determined; and the foes of the Const.i.tution, fiercely resisting its ratification, were striving to call a second general Convention to frame another scheme of government or merely to amend the Articles of Confederation.

To help to put Virginia in line for the Const.i.tution, John Marshall, for the third time, sought election to the Legislature. His views about government had now developed maturely into a broad, well-defined Nationalism; and he did not need the spur of the wrathful words which Was.h.i.+ngton had been flinging as far as he could against the existing chaos and against everybody who opposed a strong National Government.

If Marshall had required such counsel and action from his old commander, both were at hand; for in all his volcanic life that Vesuvius of a man never poured forth such lava of appeal and denunciation as during the period of his retirement at Mount Vernon after the war was over and before the Const.i.tution was adopted.[746]

But Marshall was as hot a Nationalist as Was.h.i.+ngton himself. He was calmer in temperament, more moderate in language and method, than his great leader; but he was just as determined, steady, and fearless. And so, when he was elected to the Legislature in the early fall of 1787, he had at heart and in mind but one great purpose. Army life, legislative experience, and general observation had modified his youthful democratic ideals, while strengthening and confirming that Nationalism taught him from childhood. Marshall himself afterwards described his state of mind at this period and the causes that produced it.

"When I recollect," said he, "the wild and enthusiastic notions with which my political opinions of that day were tinctured, I am disposed to ascribe my devotion to the Union and to a government competent to its preservation, at least as much to casual circ.u.mstances as to judgment.

I had grown up at a time when the love of the Union, and the resistance to the claims of Great Britain were the inseparable inmates of the same bosom; when patriotism and a strong fellow-feeling with our suffering fellow-citizens of Boston were identical; when the maxim, 'United we stand, divided we fall,' was the maxim of every orthodox American.

"And I had imbibed these sentiments so thoroughly that they const.i.tuted a part of my being. I carried them with me into the army, where I found myself a.s.sociated with brave men from different States, who were risking life and everything valuable in a common cause, believed by all to be most precious; and where I was confirmed in the habit of considering America as my country, and Congress as my government.... My immediate entrance into the State Legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings [of the army]; and the general tendency of State politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized General Government."[747]

On the third day of the fall session of the Virginia Legislature of 1787, the debate began on the question of calling a State Convention to ratify the proposed National Const.i.tution.[748] On October 25 the debate came to a head and a resolution for calling a State Convention pa.s.sed the House.[749] The debate was over the question as to whether the proposed Convention should have authority either to ratify or reject the proposed scheme of government entirely; or to accept it upon the condition that it be altered and amended.

Francis Corbin, a youthful member from Middles.e.x, proposed a flat-footed resolution that the State Convention be called either to accept or reject the "new plan." He then opened the debate with a forthright speech for a Convention to ratify the new Const.i.tution as it stood.

Patrick Henry instantly was on his feet. He was for the Convention, he said: "No man was more truly federal than himself." But, under Corbin's resolution, the Convention could not propose amendments to the Const.i.tution. There were "errors and defects" in that paper, said Henry.

He proposed that Corbin's resolution should be changed so that the State Convention might propose amendments[750] as a condition of ratification.

The debate waxed hot. George Nicholas, one of the ablest men in the country, warmly attacked Henry's idea. It would, declared Nicholas, "give the impression" that Virginia was not for the Const.i.tution, whereas "there was, he believed, a decided majority in its favor."

Henry's plan, said Nicholas, would throw cold water on the movement to ratify the Const.i.tution in States that had not yet acted.

George Mason made a fervid and effective speech for Henry's resolution.

This eminent, wealthy, and cultivated man had been a member of the Philadelphia Convention that had framed the Const.i.tution; but he had refused to sign it. He was against it for the reasons which he afterwards gave at great length in the Virginia Convention of 1788.[751]

He had "deeply and maturely weighed every article of the new Const.i.tution," avowed Mason, and if he had signed it, he "might have been justly regarded as a traitor to my country. I would have lost this hand before it should have marked my name to the new government."[752]

At this juncture, Marshall intervened with a compromise. The Const.i.tutionalists were uncertain whether they could carry through Corbin's resolution. They feared that Henry's plan of proposing amendments to the Const.i.tution might pa.s.s the House. The effect of such an Anti-Const.i.tutional victory in Virginia, which was the largest and most populous State in the Union, would be a blow to the cause of the Const.i.tution from which it surely could not recover. For the movement was making headway in various States for a second Federal Convention that should devise another system of government to take the place of the one which the first Federal Convention, after much quarreling and dissension, finally patched up in Philadelphia.[753]

So Marshall was against both Corbin's resolution and Henry's amendment to it; and also he was for the ideas of each of these gentlemen. It was plain, said Marshall, that Mr. Corbin's resolution was open to the criticism made by Mr. Henry. To be sure, the Virginia Convention should not be confined to a straight-out acceptance or rejection of the new Const.i.tution; but, on the other hand, it would never do for the word to go out to the other States that Virginia in no event would accept the Const.i.tution unless she could propose amendments to it. He agreed with Nicholas entirely on that point.

Marshall also pointed out that the people of Virginia ought not to be given to understand that their own Legislature was against the proposed Const.i.tution before the people themselves had even elected a Convention to pa.s.s upon that instrument. The whole question ought to go to the people without prejudice; and so Marshall proposed a resolution of his own "that a Convention should be called and that the new Const.i.tution should be laid before them for their free and ample discussion."[754]

Marshall's idea captured the House. It placated Henry, it pleased Mason; and, of course, it was more than acceptable to Corbin and Nicholas, with whom Marshall was working hand in glove, as, indeed, was the case with all the Const.i.tutionalists. In fact, Marshall's tactics appeared to let every man have his own way and succeeded in getting the Convention definitely called. And it did let the contending factions have their own way for the time being; for, at that juncture, the friends of the new National Const.i.tution had no doubt that they would be able to carry it through the State Convention unmarred by amendments, and its enemies were equally certain that they would be able to defeat or alter it.

Marshall's resolution, therefore, pa.s.sed the House "unanimously."[755]

Other resolutions to carry Marshall's resolution into effect also pa.s.sed without opposition, and it was "ordered that two hundred copies of these resolutions be printed and dispersed by members of the general a.s.sembly among their const.i.tuents; and that the Executive should send a copy of them to Congress and to the Legislature and Executive of the respective states."[756] But the third month of the session was half spent before the Senate pa.s.sed the bill.[757] Not until January 8 of the following year did it become a law.[758]

In addition, however, to defining the privileges of the members and providing money for its expenses, the bill also authorized the Convention to send representatives "to any of the sister states or the conventions thereof which may be then met," in order to gather the views of the country "concerning the great and important change of government which hath been proposed by the federal convention."[759] Thus the advocates of a second general Convention to amend the Articles of Confederation or frame another Const.i.tution scored their point.

So ended the first skirmish of the historic battle soon to be fought out in Virginia, which would determine whether the American people should begin their career as a Nation. Just as John Marshall was among the first in the field with rifle, tomahawk, and scalping-knife, to fight for Independence, so, now, he was among those first in the field with arguments, influence, and political activities, fighting for Nationalism.

FOOTNOTES:

[614] Richmond grew rapidly thereafter. The number of houses was trebled within a decade.

[615] Schoepf, ii, 55-56.

[616] Schoepf, ii, 55-56.

[617] _Ib._; and see Journals.

[618] _Ib._, ii, 57.

[619] Schoepf, 55-56.

[620] _Ib._, 58.

[621] Story, in Dillon, iii, 337. Marshall was a prime favorite of his old comrades all his life. (_Ib._)

[622] Journal, H.D. (Oct. Sess., 1782), 3-10.

[623] The roads were so bad and few that traveling even on horseback was not only toilsome but dangerous. (See _infra_, chap. VII.)

[624] Journal, H.D. (Oct. Sess., 1782), 4-8.

[625] Journal, H.D. (Oct. Sess., 1782.), 9-10.

[626] _Ib._, 10.

[627] _Ib._, 13-15.

[628] _Ib._, 15.

[629] _Ib._, 22; Hening, xi, 111. The "ayes" and "noes" were taken on this bill and Marshall's vote is, of course, without any importance except that it was his first and that it was a little straw showing his kindly and tolerant disposition. Also the fact that the "ayes" and "noes" were called for--something that was very rarely done--shows the popular feeling against Englishmen.

[630] Journal, H.D. (Oct. Sess., 1782), 27-28. Marshall voted in favor of bringing in a bill for strengthening the credit account; and against postponing the consideration of the militia bill. (_Ib._, 45.)

[631] _Ib._, 23, 25, 27, 36, 42, 45.

[632] _Ib._, 23.

[633] Hening, xi, 173-75.

[634] Journal, H.D., 36.

[635] "It greatly behoves the a.s.sembly to revise several of our laws, and to abolish all such as are contrary to the fundamental principles of justice; and by a strict adherence to the distinctions between Right and Wrong for the future, to restore that confidence and reverence ... which has been so greatly impaired by a contrary conduct; and without which our laws can never be much more than a dead letter." (Mason to Henry, May 6,1783, as quoted in Henry, ii, 185.)

[636] _Writings_: Hunt, ii, 397. This notable fact is worthy of repet.i.tion if we are to get an accurate view of the Virginia Legislature of that day. Yet that body contained many men of great ability.