The subject of the Judiciary did not seriously arise again until the vote on the adoption of the entire constitution was imminent. As it turned out, the constitution, when adopted, contained, in substance, the Judiciary provisions which Marshall had written and reported at the beginning of that body's deliberations.[1354]
The other and the commanding problem, for the solution of which the contention had been called, was made up of the associated questions of suffrage, taxation, and representation. Broadly speaking, the issue was that of white manhood suffrage and representation based upon the enumeration of whites, as against suffrage determined by property and taxation, representation to be based on an enumeration which included three fifths of the slave population.[1355]
In these complex and tangled questions the State and the convention were divided; so fierce were the contending factions, and so diverse were opinions on various elements of the confused problem, especially among those demanding reform, that at times no solution seemed possible. The friends of reform were fairly well organized and coöperated in a spirit of unity uncommon to liberals. But, as generally happens, the conservatives had much better discipline, far more harmony of opinion and conduct. The debate on both sides was able and brilliant.[1356]
Finally the convention seemingly became deadlocked. Each side declared it would not yield.[1357] Then came the inevitable reaction—a spirit of conciliation mellowed everybody. Sheer human nature, wearied of strife, sought the escape that mutual accommodation alone afforded. The moment came for which Marshall had been patiently waiting. Rising slowly, as was his wont, until his great height seemed to the convention to be increased, his soothing voice, in the very gentleness of its timbre, gave a sense of restfulness and agreement so grateful to, and so desired by, even the sternest of the combatants.
"No person in the House," began the Chief Justice, "can be more truly gratified than I am, at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal and honest manner, adapted to the situation of the different parts of the Commonwealth, which are to be affected."
The warring factions, said Marshall, were at last in substantial accord. "That the Federal numbers [the enumeration of slaves as fixed in the National Constitution] and the plan of the white basis shall be blended together so as to allow each an equal portion of power, seems to be very generally agreed to." The only difference now was that one faction insisted on applying this plan to both Houses of the Legislature, while the other faction would restrict the white basis to the popular branch, leaving the Senate to be chosen on the combined free white and black slave enumeration.
This involves the whole theory of property. One gentleman, in particular, "seems to imagine that we claim nothing of republican principles, when we claim a representation for property." But "republican principles" do not depend on "the naked principle of numbers." On the contrary, "the soundest principles of republicanism do sanction some relation between representation and taxation.... The two ought to be connected.... This was the principle of the revolution.... This basis of Representation is ... so important to Virginia" that everybody had thought about it before this convention was called.
"Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis of population alone; a basis compounded of taxation and white population, (or which is the same thing, a basis of Federal numbers:).... Now, of these various propositions, the basis of white population, and the basis of taxation alone are the two extremes." But, "between the free population, and the white population, there is almost no difference: Between the basis of total population and the basis of taxation, there is but little difference."
Frankly and without the least disguise of his opinions, Marshall admitted that he was a conservative of conservatives: "The people of the East," of whom he avowed himself to be one, "thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the Federal numbers. We thought that we had republican precedent for this—a precedent given us by the wisest and truest patriots that ever were assembled: but that is now past.
"We are now willing to meet on a new middle ground." Between the two extremes "the majority is too small to calculate upon.... We are all uncertain as to the issue. But all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle, and produce I know not what mischief." The conservatives were now the majority of the convention, yet they were again willing to make concessions. Avoiding both extremes, Marshall proposed, "as a compromise," that the basis of representation "shall be made according to an exact compound of the two principles, of the white basis and of the Federal numbers, according to the Census of 1820."[1358]