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

"That restless firebrand, the Printer of your city [Oswald, editor of the "Independent Gazetteer"], is running about as if driven by the Devil," wrote a New York merchant to a Philadelphia business correspondent, "seemingly determined to do all the mischief he can; indeed, in my opinion he is an actual incendiary & ought to be the object of legal restraint. He is in his own person a strong argument of the necessity of speedily adopting the new System & putting it into immediate motion."1047

And "firebrands," indeed, the Anti-Constitutionalists prove themselves in every possible way.

Madison was alarmed. He writes to Jefferson that the "minority … of Pennsylvania has been extremely intemperate and continues to use very bold and menacing language."1048 Little did Madison then foresee that the very men and forces he now was fighting were laying the foundation for a political party which was to make him President. Far from his thought, at this time, was the possibility of that antipodal change which public sentiment and Jefferson's influence wrought in him two years later. When the fight over the Constitution was being waged, there was no more extreme Nationalist in the whole country than James Madison.

So boiled the stormy Pennsylvania waters through which the Constitution was hastened to port and such was the tempest that strained its moorings after it was anchored in the harbor of ratification.

In Massachusetts, "all the men of abilities, of property and of influence,"1049 were quite as strong for the Constitution as the same class in Pennsylvania; but, impressed by the revolt against the tactics of hurry and force which the latter had employed, the Constitutionalists of the Bay State took an opposite course. Craft, not arrogance, was their policy. They were "wise as serpents," but appeared to be "as harmless as doves." Unlike the methods of the Pennsylvania Constitutionalists, they were moderate, patient, conciliatory, and skillful. They put up Hancock for President of the Convention, in order, as they said, "that we might have advantage of [his] … name – whether capable of attending or not."1050

The Massachusetts adversaries of the Constitution were without a leader. Among them "there was not a single character capable of uniting their wills or directing their measures."1051 Their inferiority greatly impressed Madison, who wrote to Pendleton that "there was scarce a man of respectability" among them.1052 They were not able even to state their own case.

"The friends of the Constitution, who in addition to their own weight … represent a very large proportion of the good sense and property of this State, have the task not only of answering, but also of stating and bringing forward the objections of their opponents," wrote King to Madison.1053 The opponents admitted this themselves. Of course, said they, lawyers, judges, clergymen, merchants, and educated men, all of whom were in favor of the Constitution, could make black look white; but "if we had men of this description on our side" we could run these foxes to earth.1054 Mr. Randall hoped "that these great men of eloquence and learning will not try to make arguments to make this Constitution go down, right or wrong… It takes the best men in this state to gloss this Constitution… Suppose … these great men would speak half as much against it, we might complete our business and go home in forty-eight hours."1055

The election of members to the Massachusetts Convention had shown widespread opposition to the proposed establishment of a National Government. Although the Constitutionalists planned well and worked hard, some towns did not want to send delegates at all; forty-six towns finally refused to do so and were unrepresented in the Convention.1056 "Biddeford has backsliden & fallen from a state of Grace to a state of nature, met yesterday & a dumb Devil seized a Majority & they voted not to send, & when called on for a Reason they were dumb, mirabile dictu!"1057 King Lovejoy was chosen for Vassalborough; but when the people learned that he would support the Constitution they "called another Meeting, turned him out, & chose another in his room who was desidedly against it."1058

The division among the people in one county was: "The most reputable characters … on … the right side [for the Constitution] … but the middling & common sort … on the opposite";1059 and in another county "the Majority of the Common people" were opposed,1060 which seems to have been generally true throughout the State. Of the sentiment in Worcester, a certain E. Bangs wrote: "I could give you but a very disagreeable account: The most of them entertain such a dread of arbitrary power, that they are afraid even of limited authority… Of upwards of 50 members from this county not more than 7 or 8 delegates are" for the Constitution, "& yet some of them are good men – Not all [Shays's] insurgents I assure you."1061

Judge Sewall reported from York that the delegates there had been chosen "to Oppose the Business… Sanford had one meeting and Voted not to Send any – But Mr. S. come down full charged with Gass and Stirred up a 2nd Meeting and procured himself Elected, and I presume will go up charged like a Baloon."1062 Nathaniel Barrell of York, a successful candidate for the Massachusetts Convention, "behaved so indecently before the Choice, as extorted a severe Reprimand from Judge Sewall, and when chosen modestly told his Constituents, he would sooner loose his Arm than put his Assent to the new proposed Constitution, it is to be feared many of his Brethern are of his mind."1063

Barrell explained to Thatcher: "I see it [the Constitution] pregnant with the fate of our libertys… I see it entails wretchedness on my posterity – Slavery on my children; … twill not be so much for our advantage to have our taxes imposed & levied at the pleasure of Congress as [by] the method now pursued … a Continental Collector at the head of a standing army will not be so likely to do us justice in collecting the taxes… I think such a Government impracticable among men with such high notions of liberty as we americans."1064

The "Address of the Minority" of Pennsylvania's Convention had reached a few men in Massachusetts, notwithstanding the alleged refusal of the post-office to transmit it; and it did some execution. To Thomas B. Wait it "was like the Thunder of Sinai – its lightenings were irresistible" to him. He deplored the "darkness, duplicity and studied ambiguity … running thro' the whole Constitution," which, to his mind, made it certain that "as it now stands but very few individuals do or ever will understand it… The vast Continent of America cannot long be subjected to a Democracy if consolidated into one Government – you might as well attempt to rule Hell by Prayer."1065

Christopher Gore condensed into one sentence the motives of those who favored the Constitution as the desire for "an honorable & efficient Govt. equal to the support of our national dignity – & capable of protecting the property of our citizens."1066

The spirit of Shays's Rebellion inspired the opponents of the Constitution in Massachusetts. "Many of the [Shays's] insurgents are in the Convention," Lincoln informed Washington; "even some of Shays's officers. A great proportion of these men are high in the opposition. We could hardly expect any thing else; nor could we … justly suppose that those men, who were so lately intoxicated with large draughts of liberty, and who were thirsting for more would … submit to a Constitution which would further take up the reins of Government, which, in their opinion, were too straight before."1067

Out of three hundred and fifty-five members of the Massachusetts Convention, one hundred and sixty-eight held out against the Constitution to the very last, uninfluenced by the careful, able, and convincing arguments of its friends, unmoved by their persuasion, unbought by their promises and deals.1068 They believed "that some injury is plotted against them – that the system is the production of the rich and ambitious," and that the Constitution would result in "the establishment of two orders in Society, one comprehending the opulent and great, the other the poor and illiterate."1069 At no time until they won over Hancock, who presided over the Massachusetts Convention, were the Constitutionalists sure that a majority was not against the new plan.

The struggle of these rude and unlearned Massachusetts men against the cultured, disciplined, powerful, and ably led friends of the Constitution in that State was pathetic. "Who, sir, is to pay the debts of the yeomanry and others?" exclaimed William Widgery. "Sir, when oil will quench fire, I will believe all this [the high-colored prophesies of the Constitutionalists] and not till then… I cannot see why we need, for the sake of a little meat, swallow a great bone, which, if it should happen to stick in our throats, can never be got out."1070

Amos Singletary "wished they [the Constitutionalists] would not play round the subject with their fine stories like a fox round a trap, but come to it."1071 "These lawyers," said he, "and men of learning and moneyed men, that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into Congress themselves; they expect to be the managers of this Constitution, and get all the power and all the money, into their own hands, and then they will swallow up all us little folks like the great Leviathan; … yes, just as the whale swallowed up Jonah."1072 Replying to the Constitutionalist argument that the people's representatives in Congress would be true to their constituents, Abraham White said that he "would not trust a 'flock of Moseses.'"1073

The opposition complained that the people knew little or nothing about the Constitution – and this, indeed, was quite true. "It is strange," said General Thompson, "that a system which its planners say is so plain, that he that runs may read it, should want so much explanation."1074 "Necessity compelled them to hurry,"1075 declared Widgery of the friends of the Constitution. "Don't let us go too fast… Why all this racket?" asked the redoubtable Thompson.1076 Dr. John Taylor was sure that Senators "once chosen … are chosen forever."1077

Time and again the idea cropped out of a National Government as a kind of foreign rule. "I beg the indulgence of this honorable body," implored Samuel Nason, "to permit me to make a short apostrophe to Liberty. O Liberty! thou greatest good! thou fairest property! with thee I wish to live – with thee I wish to die! Pardon me if I drop a tear on the peril to which she is exposed: I cannot, sir, see this brightest of jewels tarnished – a jewel worth ten thousand worlds; and shall we part with it so soon? O no."1078 And Mr. Nason was sure that the people would part with this brightest of jewels if the Constitution was adopted. As to a standing army, let the Constitutionalists recall Boston on March 5, 1770. "Had I a voice like Jove," cried Nason, "I would proclaim it throughout the world; and had I an arm like Jove, I would hurl from the globe those villains that would dare attempt to establish in our country a standing army."1079

These "poor, ignorant men," as they avowed themselves to be, were rich in apostrophes. The reporter thus records one of General Thompson's efforts: "Here the general broke out in the following pathetic apostrophe: 'O my country, never give up your annual elections! Young men, never give up your jewel.'"1080 John Holmes showed that the Constitution gave Congress power to "institute judicatories" like "that diabolical institution, the Inquisition." "Racks," cried he, "and gibbets, may be amongst the most mild instruments of their [Congress's] discipline."1081 Because there was no religious test, Major Thomas Lusk "shuddered at the idea that Roman Catholics, Papists, and Pagans might be introduced into office, and that Popery and the Inquisition may be established in America";1082 and Singletary pointed out that under the Constitution a "Papist, or an Infidel, was as eligible as … a Christian."1083

Thus the proceedings dragged along. The overwhelming arguments of the advocates of the Constitution were unanswered and, apparently, not even understood by its stubborn foes. One Constitutionalist, indeed, did speak their language, a farmer named Jonathan Smith, whom the Constitutionalist managers put forward for that purpose. "I am a plain man," said Mr. Smith, "and get my living by the plough. I am not used to speak in public, but I beg leave to say a few words to my brother plough-joggers in this house"; and Mr. Smith proceeded to make one of the most effective speeches of the Convention.1084 But all to no purpose. Indeed, the pleadings and arguments for the Constitution seemed only to harden the feeling of those opposed to it. They were obsessed by an immovable belief that a National Government would destroy their liberties; "and," testifies King, "a distrust of men of property or education has a more powerful effect upon the minds of our opponents than any specific objections against the Constitution."1085

Finally, in their desperation, the Constitutionalist managers won Hancock,1086 whose courting of the insurgents in Shays's Rebellion had elected him Governor. He had more influence with the opposition than any other man in New England. For the same reason, Governor Bowdoin's friends, who included most of the men of weight and substance, had been against Hancock. By promising the latter their support and by telling him that he would be made President if Washington was not,1087 the Constitutionalist leaders induced Hancock to offer certain amendments which the Massachusetts Convention should recommend to Congress along with its ratification of the Constitution. Hancock offered these proposals as his own, although they were drawn by the learned and scholarly Parsons.1088 Samuel Adams, hitherto silent, joined in this plan.

Thus the trick was turned and the Massachusetts Convention ratified the Constitution a few days later by a slender majority of nineteen out of a vote of three hundred and fifty-five.1089 But not without bitter protest. General Thompson remarked that "he could not say amen to them [the amendments], but they might be voted for by some men – he did not say Judases."1090 The deal by which the Constitutionalists won Hancock was suspected, it appears, for Dr. Charles Jarvis denied that "these amendments have been artfully introduced to lead to a decision which would not otherwise be had."1091 Madison in New York, watching the struggle with nervous solicitude, thought that the amendments influenced very few members of the Massachusetts opposition because of "their objections being levelled against the very essence of the proposed Government."1092 Certainly, those who changed their votes for ratification had hard work to explain their conversion.

Nathaniel Barrell, who had pledged his constituents that he would part with his arm rather than vote for the "Slavery of my children," had abandoned his vow of amputation and decided to risk the future bondage of his offspring by voting for the Constitution. In trying to justify his softened heroism, he said that he was "awed in the presence of this august assembly"; he knew "how little he must appear in the eyes of those giants of rhetoric, who have exhibited such a pompous display of declamation"; but although he did not have the "eloquence of Cicero, or the blaze of Demosthenian oratory," yet he would try to explain. He summarized his objections, ending with his wish that "this Constitution had not been, in some parts of the continent, hurried on, like the driving of Jehu, very furiously." So he hoped the Convention would adjourn, but if it would not – well, in that case, Mr. Barrell would brave the wrath of his constituents and vote for ratification with amendments offered by Hancock.1093

Just as the bargain with Hancock secured the necessary votes for the Constitution in the Massachusetts Convention, so did the personal behavior of the Constitutionalists forestall any outbreak of protest after ratification. "I am at Last overcome," wrote Widgery, "by a majority of 19, including the president [Hancock] whose very Name is an Honour to the State, for by his coming in and offering Som Amendments which furnished many with Excuses to their Constituants, it was adopted to the great Joy of all Boston."1094 The triumphant Constitutionalists kept up their mellowing tactics of conciliation after their victory and with good results, as appears by Mr. Widgery's account.

The "great bone" which had been thrust into his throat had not stuck there as he had feared it would. The Constitutionalists furnished materials to wash it down. "After Taking a parting Glass at the Expense of the Trades men in Boston we Disolved";1095 but not before the mollified Widgery announced that the Constitution "had been carried by a majority of wise and understanding men… After expressing his thanks for the civility which the inhabitants of this town [Boston] have shown to the Convention, … he concluded by saying that he should support the … Constitution" with all his might.1096

"One thing I mus menchen," relates Widgery, "the Gallerys was very much Crowded, yet on the Desition of so emportant a Question as the present you might have heard a Copper fall on the Gallery floor, their was Sush a profound Silance; on thirs Day we got throw all our Business and on Fry Day, there was a federal Ship Riged and fixd on a Slead, hald by 13 Horses, and all Orders of Men Turnd out and formed a procession in the following ordor Viz first the Farmers with the plow and Harrow Sowing grain, and Harrowing it in as they went Som in a Cart Brakeing and Swingeing Flax … Tradesmen of all sorts, … the Bakers [with] their Bread peal … the Federal Ship ful Riged … the Merchants … a nother Slead, Halled by 13 Horses on which was a Ship yard, and a Number of smaul Ships &c. on that. in this order thay marchd to the House of Each of their Delegates in the Town of Boston, and returned to Fanuels Aall where the Merchants gave them 3 or 4 Hogsheads of Punch and as much wine cake & cheese as they could make way with … one thing more Notwithstanding my opposition to the Constitution, and the anxiety of Boston for its adoption I most Tel you I was never Treated with So much politeness in my Life as I was afterwards by the Treadesmen of Boston Merchants & every other Gentleman."1097

Thus did the Massachusetts Constitutionalists take very human and effective measures to prevent such revolt against the Constitution, after its ratification, as the haughty and harsh conduct of their Pennsylvania brothers had stirred up in the City and State of Brotherly Love. "The minority are in good temper," King advises Madison; "they have the magnanimity to declare that they will devote their lives and property to support the Government."1098 While there was a little Anti-Constitutionalist activity among the people after the Convention adjourned, it was not virulent. Gerry, indeed, gave one despairing shriek over departing "liberty" which he was sure the Constitution would drive from our shores; but that lament was intended for the ears of New York. It is, however, notable as showing the state of mind of such Anti-Constitutionalists as the Constitution's managers had not taken pains to mollify.

Gerry feared the "Gulph of despotism… On these shores freedom has planted her standard, diped in the purple tide that flowed from the veins of her martyred heroes" which was now in danger from "the deep-laid plots, the secret intrigues, … the bold effrontery" of those ambitious to be aristocrats, some of whom were "speculating for fortune, by sporting with public money." Only "a few, a very few [Constitutionalists] … were … defending their country" during the Revolution, said Gerry. "Genius, Virtue, and Patriotism seems to nod over the vices of the times … while a supple multitude are paying a blind and idolatrous homage to … those … who are endeavouring … to betray the people … into an acceptance of a most complicated system of government; marked on the one side with the dark, secret and profound intrigues of the statesman, long practised in the purlieus of despotism; and on the other, with the ideal projects of young ambition, with its wings just expanded to soar to a summit, which imagination has painted in such gawdy colours as to intoxicate the inexperienced votary and send him rambling from State to State, to collect materials to construct the ladder of preferment."1099

Thus protested Gerry; but if the people, in spite of his warnings, would "give their voices for a voluntary dereliction of their privileges" – then, concluded Gerry, "while the statesman is plodding for power, and the courtier practicing the arts of dissimulation without check – while the rapacious are growing rich by oppression, and fortune throwing her gifts into the lap of fools, let the sublimer characters, the philosophic lovers of freedom who have wept over her exit, retire to the calm shades of contemplation, there they may look down with pity on the inconsistency of human nature, the revolutions of states, the rise of kingdoms, and the fall of empires."1100

Such was the resistance offered to the Constitution in Massachusetts, such the debate against it, the management that finally secured its approval with recommendations by that Commonwealth,1101 and the after effects of the Constitutionalists' tactics.

In New Hampshire a majority of the Convention was against the Constitution. "Almost every man of property and abilities … [was] for it," wrote Langdon to Washington; but "a report was circulated … that the liberties of the people were in danger, and the great men … were forming a plan for themselves; together with a thousand other absurdities, which frightened the people almost out of what little senses they had."1102

Very few of the citizens of New Hampshire knew anything about the Constitution. "I was surprised to find … that so little information respecting the Constitution had been diffused among the people," wrote Tobias Lear. "The valuable numbers of Publius are not known… The debates of the Pennsylvania and Massachusetts Conventions have been read by but few persons; and many other pieces, which contain useful information have never been heard of."1103

When the New Hampshire Convention assembled, "a great part of whom had positive instructions to vote against it," the Constitutionalists, after much argument and persuasion, secured an adjournment on February 22 until June.1104 Learning this in New York, nine days later, Madison wrote Pendleton that the adjournment had been "found necessary to prevent a rejection."1105 But, "notwithstanding our late Disappointments and Mortification," the New Hampshire Constitutionalists felt that they would win in the end and "make the people happy in spight of their teeth."1106

When, therefore, Virginia's great Convention met on June 2, 1788, the Nation's proposed fundamental law had not received deliberate consideration in any quarter; nor had it encountered weighty debate from those opposed to it. New York's Convention was not to assemble until two weeks later and that State was known to be hostile. The well-arranged plan was working to combine the strength of the leading enemies of the Constitution in the various States so that a new Federal Convention should be called.1107

"Had the influence of character been removed, the intrinsic merits of the instrument [Constitution] would not have secured its adoption. Indeed, it is scarcely to be doubted, that in some of the adopting States, a majority of the people were in the opposition," writes Marshall many years afterwards in a careful review of the thorny path the Constitution had had to travel.1108 Its foes, says Marshall, were "firmly persuaded that the cradle of the constitution would be the grave of republican liberty."1109

In Virginia's Convention, the array of ability, distinction, and character on both sides was notable, brilliant, and impressive. The strongest debaters in the land were there, the most powerful orators, and some of the most scholarly statesmen. Seldom, in any land or age, has so gifted and accomplished a group of men contended in argument and discussion at one time and place. And yet reasoning and eloquence were not the only or even the principal weapons used by these giant adversaries. Skill in political management, craft in parliamentary tactics, intimate talks with the members, the downright "playing of politics," were employed by both sides. "Of all arguments that may be used at the convention," wrote Washington to Madison, more than four months before the Convention, "the most prevailing one … will be that nine states at least will have acceded to it."1110