Chapter XIII: In the Virginia State Convention (1829)

The first Constitution of Virginia was formed in 1776. Though born amid the throes and convulsions of the great Revolutionary struggle, it may be doubted whether it has been improved upon by any of the several constitutions which have succeeded it. It endured without amendment, in war and in peace, to 1830, a period of more than half a century, and seemed so well adapted to secure the peace and safety of the Commonwealth that many of her wisest citizens greatly lamented when the spirit of innovation stirred the people to the new fashion of holding a convention and fabricating a successor to it. John Marshall was one of those who deprecated and opposed the change; but when he found the result inevitable, he wisely resolved to fall in with the popular sentiment, and to aid others of the like faith in an endeavor to save what was most valuable and dear in the existing order of things.

The chief justice, with ex-Presidents Madison and Monroe, and many of the conscript fathers of the republic, became members of the convention. Mr. Monroe was its chosen president, but owing to the increasing feebleness of age was seldom able to preside, and the chair was generally occupied by a skillful parliamentarian in Judge Philip P. Barbour of Orange County, who presided with great acceptance.

A contemporary writer and spectator of the scene has sketched the personnel and the leading characters of the convention:

“Mr. Madison sat on the left of the speaker; Mr. Monroe, when not in the chair, on the right. Mr. Madison spoke once for half an hour, but although a pin might have been heard to drop, so low was his tone that from the gallery I could distinguish only one word and that was constitution. He stood not more than six feet from the speaker. When he rose a great part of the members left their seats and clustered round the aged statesman. Mr. Madison was a small man, with an ample forehead and some obliquity of vision (I thought the defect probably of age), his eyes appearing to be slightly introverted. His dress was plain, his overcoat a faded brown surtout. Mr. Monroe was very wrinkled and weather-beaten, ungraceful in attitude and gesture, and his speeches only commonplace.”

Other conspicuous members were, Mr. Giles, then governor of the State; Mr. Tazewell, John Randolph of Roanoke, P. P. Barbour, Philip Doddridge of Brooke, Mr. Powell of Frederick, Chapman Johnson of Augusta, and Benjamin Watkins Leigh of Richmond City. The latter made a distinguished figure in the convention, and was armed at all points as the leader of the lowland or eastern party. Judge Marshall is thus described by the writer above quoted:

“Judge Marshall, whenever he spoke, which was seldom, and for only a short time, attracted great attention. His appearance was Revolutionary and patriarchal. Tall, in a long surtout of blue, with a face of genius and an eye of fire, his mind possessed the rare faculty of condensation; he distilled an argument down to its essence. There were two parties in the house; the western or radical, and the eastern or conservative. Judge Marshall proposed something in the nature of a compromise.” [1]

The principal questions which engaged the deliberations of the convention involved the extension of the right of suffrage, the eligibility of government officers by the vote of the people, the readjustment of the basis of representation in the legislature, and the reform of the state judiciary. The particular subject which excited the warmest interest, and which threatened at one time to divide and dismember the State, related to the basis of representation in the state legislature. It became at length a sectional and geographical struggle for power; the western part of the State insisting on a purely white basis, and the eastern counties urging a mixed basis founded on a combination of persons and property.

Much irritation prevailed in the debates on these propositions, and serious consequences seemed to threaten the harmony of the Commonwealth. The discussion had lasted through several weeks, with little prospect of agreement. It was in this crisis that the venerable chief justice suggested a compromise. He addressed the convention. His voice was somewhat feeble at first, but as he proceeded and grew warm with the patriotic inspiration of his theme he was distinctly heard throughout the hall; and the manliness, candor, and courtesy of his manner conciliated the confidence of all parties. He said:

“No person in the house 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. As to the general propositions which have been offered, there is no essential difference between them. That the federal numbers and the plan of the white basis shall be blended together so as to allow each an equal portion of power seems very generally agreed to. The difference is that one party applies these two principles separately, the one

to the Senate, the other to the House of Delegates; while the other party proposes to unite the two principles, and to carry them in their blended form through the whole legislature. One gentleman differs in the whole outline of this plan. He seems to imagine that we claim nothing of republican principles when we claim a representation for property. Permit me to set him right. I do not say that I hope to satisfy him, or others who say that republican government depends on adopting the naked principle of numbers, that we are right; but I think we can satisfy him that we do entertain a different opinion. I think the soundest principles of republicanism do sanction some relation between representation and taxation. Certainly no opinion has received the sanction of wiser statesmen and patriots. I think the two ought to be connected. I think this was the principle of the Revolution, the ground on which the colonies were torn from the mother country and made independent states.”

“I shall not however go into that discussion now. The house has already heard much said about it. I would observe that this basis of representation is a matter so important to Virginia that the subject was reviewed by every thinking individual before this convention assembled. Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis compounded of taxation and white population (or, which is the same thing, a basis of federal numbers); two other bases were also proposed, one referring to the total population of the State, the other to taxation alone. Now of these various propositions, the basis of

white population and the basis of taxation alone are the two extremes. 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. The people of the east thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, on 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, beyond what we thought was a middle ground and the extreme on the other side. We consider the federal numbers as middle ground, and we may, perhaps, now carry that proposition. The gentleman assumed too much when he said that question was decided. It cannot be considered as decided until it has come before the house. The majority is too small to calculate upon it as certain in the final decision. 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 majority also are now content once more to divide the ground and to take a new middle ground. The only difficulty is whether the compromise shall be effected by applying one principle to the House of Delegates and the other to the Senate, or by mingling the two principles and applying them in the same form to both branches of the legislature. I incline to the latter opinion. I do not know and have not heard any sufficient reason assigned for adopting different principles; and there will be just the same divisions between the two, as appears in this convention. It can produce no good, and may, I fear, produce some mischief. It will be said that one branch is the representation of one division of the State, and the other branch of an other division of it. Ought they not both to represent the whole? Yet I am ready to submit to such an arrangement, if it shall be the opinion of a majority of this house. If this convention shall think it best that the House of Delegates shall be organized in one way and the Senate in another, I shall not withhold my assent. Give me a constitution that shall be received by the people; a constitution in which I can consider their different interests to be duly represented, and I will take it, though it may not be that I most approve.”

“The principle, then, which I propose as a compromise is, that the apportionment 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.”

There was a considerable discussion, following Judge Marshall’s speech. The “exact compound” would have given, as was said, the whole white population and three tenths of the colored, whether bond or free. When Judge Marshall again addressed the convention, his speech, though brief, “was at the time regarded as an unrivaled specimen of lucid and conclusive reasoning.” [2]

“Two propositions,” he said, “respecting the basis of representation have divided this convention almost equally. One party has supported the basis of white population alone, the other has supported a basis compounded of white population and taxation, or, which is the same thing in its results, the basis of federal numbers. 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… . One party proposes that the House of Delegates shall be formed on the basis of white population exclusively, and the Senate on the mixed basis of white population and taxation, or on the federal numbers. The other party proposes that the white population shall be combined with federal numbers, and shall, mixed in equal proportions, form the basis of representation in both houses. This last proposition must be equal. All feel it to be equal. If the two principles are combined exactly, and, thus combined, form the basis of both houses, the compromise must be perfectly equal… .”

“After the warm language (to use the mildest phrase) which has been mingled with argument on both sides, I heard with inexpressible satisfaction propositions for compromise proposed by both parties in the language of conciliation. I hail these auspicious appearances with as much joy as the inhabitant of the polar regions hails the reappearance 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.”

The wise and conciliatory terms for compromising the formidable disputes which had grown out of the discussion of the basis question, especially the candid spirit in which Marshall presented those terms, led to a better temper in the convention, and powerfully conduced to the acceptance of the form of settlement which was finally adopted and incorporated into the new Constitution. It was upon the grand principle of mutual concession that the chief justice yielded at length his cordial assent to that instrument, though many of its provisions were in opposition to his settled convictions.

The question of changing the manner of appointing the judges and magistrates of the Commonwealth, and their tenure of office, naturally awakened earnest solicitude in the mind of the chief justice. On this subject he spoke with unwonted earnestness and power. He was especially desirous to preserve the county court system of Virginia, a system, by the way, which was regarded by Mr. Jefferson with great aversion:

“The justices of these courts,” said the latter, “are self-chosen, are for life, and perpetuate their own body in succession forever, so that a faction once possessing themselves of the bench of a county can never be broken up, but hold their county in chains forever indissoluble. Yet these justices are the real executive, as well as judiciary, in all our minor and most ordinary concerns. They tax us at will, and fill the office of sheriff… . The juries our judges of all fact, and of the law when they choose it are not selected by the people nor amenable to them. They are chosen by an officer named by the court and executive.” [3]

Judge Marshall, on the contrary, well versed in the practical operation and the wholesome conservative influence exerted by these tribunals, earnestly advocated their preservation and a continuance in the present mode of appointing the justices. He said:

“I am not in the habit of bestowing extravagant eulogies upon my countrymen; I would rather hear them pronounced by others; but it is a truth that no State in the Union has hitherto enjoyed more complete internal quiet than Virginia. There is no part of America where less disquiet and less ill-feeling between man and man is to be found than in this Commonwealth; and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our county courts. The magistrates who compose those courts consist in general of the best men in their respective counties. They act in the spirit of peacemakers, and allay rather than excite the small disputes and differences which will some times arise among neighbors. It is certainly much owing to this that so much harmony prevails amongst us. These courts must be preserved; if we part with them, can we be sure that we shall retain among our justices of the peace the same respectability and weight of character as are now to be found? I think not… .”

“I have grown old in the opinion that there is nothing more dear to Virginia, or that ought to be dearer to her statesmen, and that the best interests of our country are secured by it. Advert, sir, to the duties of a judge. He has to pass between the government and the man whom that government is prosecuting; between the most powerful individual in the community and the poorest and most unpopular. It is of the last importance that, in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depend on that fairness? The judicial department comes home, in its effects, to every man’s fireside; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? … We have heard about sinecures and judicial pensioners. Sir, the weight of such terms is well known here. To avoid creating a sinecure you take away a man’s duties when he wishes them to remain; you take away the duty of one man and give it to another; and this is a sinecure. What is this in substance but saying that there is and can be and ought to be no such thing as judicial independence? … I have always thought, from my earliest youth until now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people was an ignorant, a corrupt, or a dependent judiciary. Our ancestors thought so; we thought so till very lately; and I trust the vote of this day will show that we think so still. Will you draw down this curse on Virginia?”

The chief justice was now seventy-five years of age, and this service in the Virginia Convention closed his political life. But, though somewhat enfeebled physically by age and infirmity, he retained and actively discharged the duties of his judicial office until his death, like Moses, with “his eye not dimmed nor his natural force abated.”

  1. Howe’s Virginia Historical Collections, p. 313.  Return to text.
  2. Southern Literary Messenger, vol. ii. P. 188.  Return to text.
  3. Jefferson’s Works: Letter to Samuel Kerchival, July, 1816. Return to text.