Volume IV Part 56 (1/2)
Giles ”had, however, such high respect” for Marshall's standing, ”that he always doubted his own opinion when put in opposition” to that of the Chief Justice. He had not intended, he avowed, ”to throw reproach upon the Judges in office.” Far be it from him to reflect ”in the least degree on their honour and integrity.” His point was that, by Marshall's plan, ”responsibility was rather avoided than sought to be secured.”
Giles was willing to risk his liberty thus far--”if a Judge became odious to the people, let him be removed from office.”[1348]
The debate continued upon another amendment by Thompson. Viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[1349] and steadily they gained votes.[1350]
Again Marshall spoke, this time crossing swords with Benjamin W. S.
Cabell and James Madison, over a motion of the former that judges whose courts were abolished, and to whom the Legislature a.s.signed no new duties, should not receive salaries: ”There were upwards of one hundred Inferior Courts in Virginia.... No gentleman could look at the dockets of these courts, and possibly think” that the judges would ever have no business to transact.
Cabell's amendment ”stated an impossible case,” said Marshall,--a ”case where there should be no controversies between man and man, and no crimes committed against society. It stated a case that could not happen--and would the convention encounter the real hazard of putting almost every Judge in the Commonwealth in the power of the Legislature, for the sake of providing for an impossible case?”[1351] But in spite of Marshall's opposition, Cabell's amendment was adopted by a vote of 59 to 36.[1352] Two weeks later, however, the convention reversed itself by two curious and contradictory votes.[1353] So in the end Marshall won.
The subject of the Judiciary did not seriously arise again until the vote on the adoption of the entire const.i.tution was imminent. As it turned out, the const.i.tution, 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 a.s.sociated 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 cooperated 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 Const.i.tution] 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 a.s.sembled: 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]
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 const.i.tution 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 friends.h.i.+p, 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 const.i.tution, 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, a.s.sisted 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 pa.s.sed since these happenings, and Marshall's att.i.tude 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 Const.i.tutional Convention of 1829-30, had no other considerations influenced him.
But, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in Virginia ninety years ago. Had the convention reached any other conclusion than that to which Marshall gently guided it, it is certain that the State would have been torn by dissension, and it is not improbable that there would have been bloodshed. All things considered, it seems unsafe to affirm that Marshall's course was not the wisest for that immediate period and for that particular State.