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

by Albert J. Beveridge

When one reflects that although the weight of fact and reason was decisively in favor of the Constitutionalists; 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 Washington 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 crushing advantages possessed by the Constitutionalists, 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 constituents, it becomes plain how vitally necessary to their cause was the Constitutionalists' capture of the Virginia Governor.[1183]

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

Answering Randolph, Mason went to the heart of the subject. "Whether the Constitution 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 Constitutionalists 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 Constitutionalists in high spirits.[1187] Madison wrote to Washington that "Henry & Mason made a lame figure & appeared to take different and awkward ground. The Federalists [Constitutionalists][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 Constitutionalists 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 Constitutionalists combined the ermine and the sword. Virginia's most venerated jurist and her most dashing 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 Massachusetts 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 Constitutionalists 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 shield 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 Constitution] 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 reëchoed 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]