Further debate ensued, during which animosity seemed about to come to life again, when the Chief Justice once more exerted his mollifying influence. "Two propositions respecting the basis of Representation have divided this Convention almost equally," he said. "The question has been discussed, until discussion has become useless. It has been argued, until argument is exhausted. We have now met on the ground of compromise." It is no longer a matter of the triumph of either side. The only consideration now is whether the convention can agree on some plan to lay before the people "with a reasonable hope that it may be adopted. Some concession must be made on both sides.... What is the real situation of the parties?" Unquestionably both are sincere. "To attempt now to throw considerations of principle into either scale, is to add fuel to a flame which it is our purpose to extinguish. We must lose sight of the situation of parties and state of opinion, if we make this attempt."
The convention is nearly evenly balanced. At this moment those favoring a white basis only have a trembling majority of two. This may change—the reversal of a single vote would leave the House "equally divided."
The question must be decided "one way or the other"; but, if either faction prevails by a bare majority, the proposed constitution will go to the people from an almost equally divided convention. That means a tremendous struggle, a riven State. Interests in certain parts of the Commonwealth will surely resist "with great force" a purely white basis of representation, especially if no effective property qualification for suffrage is provided. This opposition is absolutely certain "unless human nature shall cease to be what it has been in all time."
No human power can forecast the result of further contest. But one thing is certain: "To obtain a just compromise, concession must not only be mutual—it must be equal also.... Each ought to concede to the other as much as he demands from that other.... There can be no hope that either will yield more than it gets in return."
The proposal that white population and taxation "mixed" with Federal numbers in "equal proportions" shall "form the basis of Representation in both Houses," is equal and just. "All feel it to be equal." Yet the conservatives now go still further—they are willing to place the House on the white basis and apply the mixed basis to the Senate only. Why refuse this adjustment? Plainly it will work well for everybody: "If the Senate would protect the East, will it not protect the West also?"
Marshall's satisfaction was "inexpressible" when he heard from both sides the language of conciliation. "I hailed these auspicious appearances with as much joy, as the inhabitant of the polar regions hails the re-appearance of the sun after his long absence of six tedious months. Can these appearances prove fallacious? Is it a meteor we have seen and mistaken for that splendid luminary which dispenses light and gladness throughout creation? It must be so, if we cannot meet on equal ground. If we cannot meet on the line that divides us equally, then take the hand of friendship, and make an equal compromise; it is vain to hope that any compromise can be made."[1359]
The basis of representation does not appear in the constitution, the number of Senators and Representatives being arbitrarily fixed by districts and counties; but this plan, in reality, gave the slaveholding sections almost the same preponderance over the comparatively non-slaveholding sections as would have resulted from the enumeration of three fifths of all slaves in addition to all whites.[1360]
While the freehold principle was abandoned, as Marshall foresaw that it would be, the principle of property qualification as against manhood suffrage was triumphant.[1361] With a majority against them, the conservatives won by better management, assisted by the personal influence of the Chief Justice, to which, on most phases of the struggle, was added that of Madison and Giles.
Nearly a century has passed since these happenings, and Marshall's attitude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. He wanted good government, safe government. He was not in the least concerned in the rule of the people as such. Indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted.
He feared that sheer majorities would be unjust, intolerant, tyrannical; and he was certain that they would be untrustworthy and freakishly changeable. These convictions would surely have dictated his course in the Virginia Constitutional Convention of 1829-30, had no other considerations influenced him.