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

At last the supreme hour is striking. The Virginians, about to assemble in State Convention, will determine the fate of that unauthorized and revolutionary plan for a National Government,980 the National Constitution. The movement for a second general Convention to have another try at framing a Constitution has made distinct progress by the time the Virginia representatives gather at the State Capital.981 There is widespread, positive, and growing resentment at the proposed new form of government; and if Virginia, the largest and most populous of the States, rejects it, the flames of opposition are certain to break out in every part of the country. As Washington asserts, there is, indeed, "combustible material" everywhere.

Thus it is that the room where Virginia's Convention is about to meet in June, 1788, will become the "bloody angle" in the first great battle for Nationalism. And Marshall will be there, a combatant as he had been at Great Bridge and Brandywine. Not for John Marshall the pallid rôle of the trimmer, but the red-blooded part of the man of conviction.

CHAPTER IX

THE STRUGGLE FOR RATIFICATION

The plot thickens fast. A few short weeks will determine the political fate of America. (Washington.)

On Sunday, June 1, 1788, the dust lay deep in the streets of the little town of Richmond. Multitudes of horses were tethered here and there or stabled as best the Virginia Capital's meager accommodations permitted. Cavalcades of mounted men could be seen from Shockoe Hill, wending their way over the imperfect earthen roads from every direction to the center of interest.982 Some of these had come hundreds of miles and arrived in the garb of the frontier, pistol and hanger at belt.983 Patrick Henry, prematurely old at fifty-two, came in a one-horse, uncovered gig; Pendleton, aged, infirm, and a cripple, arrived in a phaeton.984

As we have seen, it was very hard for members of Virginia's Legislature to get to the seat of the State Government even from counties not far distant; and a rainy season, or even one week's downpour during the latter part of May, would have kept large numbers of the members of the Virginia Convention from reaching their destination in time and perhaps have decided the impending struggle985 before it began. The year's great social and sporting event added to the throng and colored the dark background of political anxiety and apprehension with a faint tinge of gayety.986

Although seven months had elapsed since the Federal Convention had finished its work, there was, nevertheless, practically no accurate knowledge among the people of the various parts of the "New Plan" of government. Even some members of the Virginia State Convention had never seen a copy of the Constitution until they arrived in Richmond to deliberate upon it and decide its fate.987 Some of the most inquiring men of this historic body had not read a serious or convincing argument for it or against it.988 "The greater part of the members of the [Virginia] convention will go to the meeting without information on the subject," wrote Nicholas to Madison immediately after the election of delegates.989

One general idea, however, had percolated through the distances and difficulties of communication to the uninformed minds of the people – the idea that the new Constitution would form a strong, consolidated National Government, superior to and dominant over the State Governments; a National Sovereignty overawing State Sovereignties, dangerous to if not entirely destructive of the latter; a general and powerful authority beyond the people's reach, which would enforce contracts, collect debts, impose taxes; above all, a bayonet-enforced rule from a distant point, that would imperil and perhaps abolish "liberty."990

So a decided majority of the people of Virginia were against the proposed fundamental law;991 for, as in other parts of the country, few of Virginia's masses wanted anything stronger than the weak and ineffective Government of the State and as little even of that as possible. Some were "opposed to any system, was it even sent from heaven, which tends to confirm the union of the States."992 Madison's father reported the Baptists to be "generally opposed to it"; and the planters who went to Richmond to sell their tobacco had returned foes of the "new plan" and had spread the uprising against it among others "who are no better acquainted with the necessity of adopting it than they themselves."993 At first the friends of the Constitution deceived themselves into thinking that the work of the Philadelphia Convention met with approval in Virginia; but they soon found that "the tide next took a sudden and strong turn in the opposite direction."994 Henry wrote to Lamb that "Four-fifths of our inhabitants are opposed to the new scheme of government"; and he added that south of the James River "I am confident nine-tenths are opposed to it."995

That keen and ever-watchful merchant, Minton Collins, thus reported to the head of his commercial house in Philadelphia: "The New Federal Constitution will meet with much opposition in this State [Virginia] for many pretended patriots has taken a great deal of pains to poison the minds of the people against it… There are two Classes here who oppose it, the one is those who have power & are unwilling to part with an atom of it, & the others are the people who owe a great deal of money, and are very unwilling to pay, as they are afraid this Constitution will make them Honest Men in spite of their teeth."996

And now the hostile forces are to meet in final and decisive conflict. Now, at last, the new Constitution is to be really debated; and debated openly before the people and the world. For the first time, too, it is to be opposed in argument by men of the highest order in ability, character, and standing – men who cannot be hurried, or bullied, or shaken, or bought. The debates in the Virginia Convention of 1788 are the only masterful discussions on both sides of the controversy that ever took place.

While the defense of the Constitution had been very able in Pennsylvania and Massachusetts (and later in New York was to be most brilliant), the attack upon it in the Virginia Convention was nowhere equaled or approached in power, learning, and dignity. Extravagant as the assertion appears, it nevertheless is true that the Virginia contest was the only real debate over the whole Constitution. It far surpassed, especially in presenting the reasons against the Constitution, the discussion in the Federal Convention itself, in weight of argument and attractiveness of presentation, as well as in the ability and distinction of the debaters.

The general Federal Convention that framed the Constitution at Philadelphia was a secret body; and the greatest pains were taken that no part of its proceedings should get to the public until the Constitution itself was reported to Congress. The Journals were confided to the care of Washington and were not made public until many years after our present Government was established. The framers of the Constitution ignored the purposes for which they were delegated; they acted without any authority whatever; and the document, which the warring factions finally evolved from their quarrels and dissensions, was revolutionary.997 This capital fact requires iteration, for it is essential to an understanding of the desperate struggle to secure the ratification of that then unpopular instrument.

"Not one legislature in the United States had the most distant idea when they first appointed members for a [Federal] convention, entirely commercial … that they would without any warrant from their constituents, presume on so bold and daring a stride," truthfully writes the excitable Gerry of Massachusetts in his bombastic denunciation of "the fraudulent usurpation at Philadelphia."998 The more reliable Melancton Smith of New York testifies that "previous to the meeting of the Convention the subject of a new form of government had been little thought of and scarcely written upon at all… The idea of a government similar to" the Constitution "never entered the minds of the legislatures who appointed the Convention and of but very few of the members who composed it, until they had assembled and heard it proposed in that body."999

"Had the idea of a total change [from the Confederation] been started," asserts the trustworthy Richard Henry Lee of Virginia, "probably no state would have appointed members to the Convention… Probably not one man in ten thousand in the United States … had an idea that the old ship [Confederation] was to be destroyed. Pennsylvania appointed principally those men who are esteemed aristocratical… Other States … chose men principally connected with commerce and the judicial department." Even so, says Lee, "the non-attendance of eight or nine men" made the Constitution possible. "We must recollect, how disproportionately the democratic and aristocratic parts of the community were represented" in this body.1000

This "child of fortune,"1001 as Washington called the Constitution, had been ratified with haste and little or no discussion by Delaware, New Jersey, Connecticut, and Georgia. The principal men in the first three Commonwealths felt that the Constitution gave those States large commercial advantages and even greater political consequence;1002 and Georgia, with so small a population as to be almost negligible, felt the need of some strong Government to defend her settlers against the Indians. It is doubtful whether many of the people of these four States had read the Constitution or had heard much about it, except that, in a general way, they were to be better off under the new than under the old arrangement. Their ratification carried no weight other than to make up four of the nine States necessary to set the new system in motion.

In other States its friends had whipped up all possible speed. Not a week had passed after the Federal Convention had laid the proposed Constitution before Congress when a resolution was introduced in the Legislature of Pennsylvania for the election, within five weeks,1003 of delegates to a State Convention to ratify the "New Plan." When its opponents, failing in every other device to delay or defeat it, refused to attend the sessions, thus breaking a quorum, a band of Constitutionalists "broke into their lodgings, seized them, dragged them though the streets to the State House and thrust them into the Assembly room with clothes torn and faces white with rage." And there the objecting members were forcibly kept until the vote was taken. Thus was the quorum made and the majority of the Legislature enabled to "pass" the ordinance for calling the Pennsylvania State Convention to ratify the National Constitution.1004 And this action was taken before the Legislature had even received from Congress a copy of that document.

The enemies in Pennsylvania of the proposed National Government were very bitter. They said that the Legislature had been under the yoke of Philadelphia – a charge which, indeed, appears to be true. Loud were the protests of the minority against the feverish haste. When the members of the Pennsylvania Convention, thus called, had been chosen and had finished their work, the Anti-Constitutionalists asserted that no fair election had really taken place because it "was held at so early a period and want of information was so great" that the people did not know that such an election was to be held; and they proved this to their own satisfaction by showing that, although seventy thousand Pennsylvanians were entitled to vote, only thirteen thousand of them really had voted and that the forty-six members of the Pennsylvania Convention who ratified the Constitution had been chosen by only sixty-eight hundred voters. Thus, they pointed out, when the State Convention was over, that the Federal Constitution had been ratified in Pennsylvania by men who represented less than one tenth of the voting population of the State.1005

Indeed, a supporter of the Constitution admitted that only a small fraction of the people did vote for members of the Pennsylvania State Convention; but he excused this on the ground that Pennsylvanians seldom voted in great numbers except in contested elections; and he pointed out that in the election of the Convention which framed the State's Constitution itself, only about six thousand had exercised their right of suffrage and that only a little more than fifteen hundred votes had been cast in the whole Commonwealth to elect Pennsylvania's first Legislature.1006

The enemies of the proposed plan for a National Government took the ground that it was being rushed through by the "aristocrats"; and the "Independent Gazetteer" published "The humble address of the low born of the United States of America, to their fellow slaves scattered throughout the world," which sarcastically pledged that "we, the low born, that is, all the people of the United States, except 600 or thereabouts, well born," would "allow and admit the said 600 well born immediately to establish and confirm this most noble, most excellent, and truly divine constitution."1007

James Wilson, they said, had been all but mobbed by the patriots during the Revolution; he never had been for the people, but always "strongly tainted with the spirit of high aristocracy."1008 Yet such a man, they declared, was the ablest and best person the Constitutionalists could secure to defend "that political monster, the proposed Constitution"; "a monster" which had emerged from "the thick veil of secrecy."1009

When the Pennsylvania State Convention had assembled, the opponents of the Constitution at once charged that the whole business was being speeded by a "system of precipitancy."1010 They rang the changes on the secret gestation and birth of the Nation's proposed fundamental law, which, said Mr. Whitehill, "originates in mystery and must terminate in despotism," and, in the end, surely would annihilate the States.1011 Hardly a day passed that the minority did not protest against the forcing tactics of the majority.1012 While much ability was displayed on both sides, yet the debate lacked dignity, courtesy, judgment, and even information. So scholarly a man as Wilson said that "Virginia has no bill of rights";1013 and Chief Justice McKean, supported by Wilson, actually declared that none but English-speaking peoples ever had known trial by jury.1014

"Lack of veracity," "indecent," "trifling," "contempt for arguments and person," were a few of the more moderate, polite, and soothing epithets that filled Pennsylvania's Convention hall throughout this so-called debate. More than once the members almost came to blows.1015 The galleries, filled with city people, were hot for the Constitution and heartened its defenders with cheers. "This is not the voice of the people of Pennsylvania," shouted Smilie, denouncing the partisan spectators. The enemies of the Constitution would not be "intimidated," he dramatically exclaimed, "were the galleries filled with bayonets."1016 The sarcastic McKean observed in reply that Smilie seemed "mighty angry, merely because somebody was pleased."1017

Persons not members of the Convention managed to get on the floor and laughed at the arguments of those who were against the Constitution. Findley was outraged at this "want of sense of decency and order."1018 Justice McKean treated the minority with contempt and their arguments with derision. "If the sky falls, we shall catch larks; if the rivers run dry, we shall catch eels," was all, said this conciliatory advocate of the Constitution, that its enemies' arguments amounted to; they made nothing more than a sound "like the working of small beer."1019

The language, manners, and methods of the supporters of the Constitution in the Pennsylvania Convention were resented outside the hall. "If anything could induce me to oppose the New Constitution," wrote a citizen signing himself "Federalist," "it would be the indecent, supercilious carriage of its advocates towards its opponents."1020

While the Pennsylvania State Convention was sitting, the Philadelphia papers were full of attacks and counter-attacks by the partisans of either side, some of them moderate and reasonable, but most of them irritating, inflammatory, and absurd. A well-written petition of citizens was sent to the Convention begging it to adjourn until April or May, so that the people might have time to inform themselves on the subject: "The people of Pennsylvania have not yet had sufficient time and opportunity afforded them for this purpose. The great bulk of the people, from the want of leisure from other avocations; their remoteness from information, their scattered situation, and the consequent difficulty of conferring with each other" did not understand the Constitution, declared this memorial.

"The unaccountable zeal and precipitation used to hurry the people into premature decision" had excited and alarmed the masses, "and the election of delegates was rushed into before the greater part of the people … knew what part to take in it." So ran the cleverly drawn indictment of the methods of those who were striving for ratification in Pennsylvania.1021 In the State Convention, the foes of the Constitution scathingly denounced to the very last the jamming-through conduct of its friends; and just before the final vote, Smilie dared them to adjourn that the sense of the people might be taken.1022

Even such of the people as could be reached by the newspapers were not permitted to be enlightened by the Convention "debates"; for reports of them were suppressed.1023 Only the speeches of James Wilson and Chief Justice McKean, both ardent advocates of the Constitution, were allowed to be published.1024

But although outnumbered two to one, cuffed and buffeted without mercy in debate, scoffed at and jeered at by the people of the Quaker City, the minority was stiff-necked and defiant. Their heads were "bloody but unbowed." Three days after the vote for ratification, forty-six "ayes" to twenty-three "nays," had been taken, the minority issued an address to their constituents.1025 It relates the causes which led to the Federal Convention, describes its members, sets forth its usurpation of power, details the efforts to get popular support for the Constitution even "whilst the gilded chains were forging in the secret conclave."

The address recounts the violence by which the State Convention was called, "not many hours" after the "New Plan" had "issued forth from the womb of suspicious secrecy"; and reaffirms the people's ignorance of the Constitution, the trifling vote, the indecorous, hasty, "insulting" debate. It gives the amendments asked for by the minority, and finally presents most if not all the arguments which before had been or since have been advanced against the Constitution, and especially the National principle which pervades it.

The powers given Congress would produce "one consolidated government, which, from the nature of things, will be an iron handed despotism"; the State Governments would be annihilated; the general welfare clause would justify anything which "the will and pleasure of congress" dictated; that National body, "with complete and unlimited power over the purse and the sword," could1026 by taxation "command the whole or any part of the property of the people" – imposts, land taxes, poll taxes, excises, duties – every kind of tax on every possible species of property and written instrument could be laid by the "monster" of National power. By the Judiciary provided in the Constitution "the rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays … and the poor man being plunged in the bottomless pit of legal discussion" could not get justice.1027

Two coördinate "sovereignties," State and National, "would be contrary to the nature of things"; the Constitution without a bill of rights "would of itself necessarily produce a despotism"; a standing army might be used to collect the most burdensome taxes and with it "an ambitious man … may step up into the throne and seize upon absolute power"1028– such are the broad outlines of the document with which the undismayed enemies of the Constitution began their campaign against it among the people of Pennsylvania after the Convention had ratified it.

The wrath of the Pennsylvania foes of the Constitution fed and grew upon its own extravagance. The friends of the "New Plan" tried to hold a meeting in Carlisle to rejoice over its ratification; but the crowd broke up their meeting, wrecked their cannon, and burned the Constitution in the very bonfire which the Constitutionalists had prepared to celebrate its victory. Blows were struck and violence done.1029 For almost a year, an Anti-Constitutionalist paper in Philadelphia kept up the bombardment of the Constitution and its advocates, its gunner being a writer signing himself "Centinel."1030 His ammunition was a mixture of argument, statement, charge, and abuse, wrapped up in cartridge paper of blistering rhetoric. The Constitution was, wrote "Centinel," a "spurious brat"; "the evil genius of darkness presided at its birth" and "it came forth under the veil of mystery."1031

Should the small fraction of the people who had voted for the members of the Pennsylvania State Convention bind the overwhelming majority who had not voted, asked "Centinel." No, indeed! The people, wrote he with pen of gall, had nothing but contempt for the "solemn mummery" that had been acted in their name.1032 As to the citizens of Philadelphia, everybody understood, asserted "Centinel," that the "spirit of independency" was dead within their breasts; Philadelphia merchants, as was well known, were mere vassals to a commercial "colossus" (Robert Morris) who held the city in "thraldom."1033

"Mankind in the darkest ages, have never been so insulted," cried "Centinel," as the men of Pennsylvania had been by this "flagrant … audacious … conspiracy [the Constitution] against the liberties of a free people."1034 The whole thing, he declared, was a dastardly plot. The conspirators had disarmed the militia, kept out of the mails such newspapers as had dared to voice the "people's rights";1035 and "all intercourse between the patriots of America is as far as possible cut off; whilst on the other hand the conspirators have the most exact information, a common concert is everywhere evident; they move in unison."1036

The Constitutionalists were not content with their vile work in thrusting upon Pennsylvania "the empire of delusion," charged "Centinel,"1037 but their agents were off for Virginia to do the like there.1038 The whole world knew, said he, that the Constitutionalists had rushed the Constitution through in Pennsylvania;1039 and that the "immaculate convention [that framed the Constitution] … contained a number of the principal public defaulters,"1040 chief of whom was Robert Morris, who, though a bankrupt in the beginning of the Revolution, had, by "peculation and embezzlement of the public property," accumulated "the immense wealth he has dazzled the world with since."1041

If only the address of Pennsylvania's heroic minority, "Centinel" lamented, had reached Boston in time, it would "have enabled patriotism to triumph" there; but, of course, the "high born" Constitutionalist managers of post-offices kept it back.1042 Was not the scandal so foul, asked "Centinel," that, on the petition of Philadelphia printers, Pennsylvania's Legislature appealed to Congress against the suppression of the mails?1043 Of course Philadelphia was for "this system of tyranny"; but three fourths of the people in the eastern counties and nineteen twentieths of those in the middle, northern, and western counties were against it.1044

The grape and canister which its enemies poured upon the Constitution and its friends in Pennsylvania brought an answering fire. The attacks, said the Constitutionalists, had been written by "hireling writers" and "sowers of sedition"; their slanders showed "what falsehoods disappointed ambition is capable of using to impose upon the public." According to the Constitutionalists, their opponents were "incendiaries" with "infamous designs."1045 "If every lie was to be punished by clipping, as in the case of other forgeries, not an ear would be left amongst the whole party," wrote a Constitutionalist of the conduct of the opposition.1046

But the Constitutionalists were no match for their enemies in the language of abuse, recklessness in making charges, or plausibility in presenting their case. Mostly they vented their wrath in private correspondence, which availed nothing. Yet the letters of business men were effective in consolidating the commercial interests. Also they illuminate the situation.