LIVES OF THE FOUNDERS
EDITED BY JOSIAH BUNTING III
ALSO IN SERIES:
AN INCAUTIOUS MAN: THE LIFE OF GOUVER NEUR MORRIS
Melanie Randolph Miller
FORGOTTEN FOUNDER,
DRUNKEN PROPHET
WILMINGTON, DELAWARE
To the staff—past, present, and future—
of the Richmond Memorial Library,
cultural heart of my beloved Batavia
CONTENTS
Acknowledgments
Introduction
The People Who Lost
Part One
The Philadelphia Story
Part Two
Maryland, My Maryland; Or, Luther Martin’s Theses
Part Three
Of Chase and Burr and Unmarked Graves
Notes
Index
ACKNOWLEDGMENTS
IN THE COURSE OF A RAMBLING (IF SPENT LARGELY IN ONE place) life I have found beer to be inspiration, and none more so than Jeremy Beer, editor in chief of ISI Books. Jeremy invited me to tell the story of my favorite Anti-Federalist, Luther Martin, and I toast him for it.
I honed, rather than hoved, I hope, part of this argument in a speech at Tufts University. Thanks to Chad Kifer, a fine man with an unaccountable passion for the Miami Dolphins, for setting that up.
The late William H. Riker, gentleman, scholar, and Federalist, sparked my interest in the Philadelphia convention during my malisoned graduate school pit stop almost twenty-five years ago. Thank you, Professor Riker. Sorry for dissing Madison.
Many thanks to Katie Papas and Brenda Reeb of Rush Rhees Library at the University of Rochester, who good-naturedly helped this techno-idiot use, if not understand, machines far beyond my comprehension. Thanks, too, to the staff of the Maryland Historical Society Library, whose archives contained several gems. I am again indebted to Paula Meyer of the Richmond Memorial Library for hunting down elusive books.
Finally, and firstly, this book does not exist without my family. I am forever grateful for the mysteries.
INTRODUCTION
THE PEOPLE WHO LOST
“SO LET US THINK ABOUT THE PEOPLE WHO LOST,” WROTE THE historian William Appleman Williams, who did not mean by that the 1925 Rochester Jeffersons but rather those unloved, perhaps unlovable, certainly defenderless, conservative presidents John Quincy Adams and Herbert Hoover, whose reclamation the left-wing Iowa patriot Williams undertook.1
We have a nasty habit of flushing down the memory hole “the people who lost.” Or demonizing them. Going back in time and painting Snidely Whiplash mustaches on their luckless countenances.
Historians have not, on the whole, been kind to the Anti-Federalists, the misleading name slapped on those who opposed ratification of the Constitution. In the main—but not by Main, as we shall see—they have been written off as bucolic bumpkins unable to grasp the exquisiteness of the Madisonian argument or as agrarian radicals motivated by antipathy toward wealth, commerce, and table manners. They are sometimes, grudgingly, with many qualifications, given credit for siring, indirectly, the Bill of Rights, but more often they are swept aside as beetle-browed brutes incapable of appreciating the majesty of the Constitution or, as the old canard goes, as rural debtors fearful that the new Constitution would prevent states from issuing worthless paper money with which they could discharge the debts they had so imprudently run up. Well, hell, I’m a rural debtor myself, so permit me to say a few words for the Anti-Federalists: the original “people who lost.”
“Men of little faith,” the historian Cecelia M. Kenyon called them. Faith, that is, in the ability of other men to design a tentacular government that would come to cover the better part of a continent. “The Antifederalists reflected a relatively early stage in the evolution of modern republican thought,” asseverated Kenyon, who conceded that while their ideas were “less advanced than those of the Federalists,” they were “not uninteresting.”2 Cheapjack praise indeed. I’m not sure why an author would undertake a book on a subject for which she can muster no praise more lavish than that it is “not uninteresting.”
The history of weights and measures is “not uninteresting.” The jurisprudence of Sandra Day O’Connor is, maybe, if we’re in a really generous mood, “not uninteresting.” The radical and rooted objections of early American patriots to the Constitution are, I venture to say, downright interesting.
The Antis are the men—and women, I add, not as a P.C. genuflection but in recognition of the Bay State’s Mercy Otis Warren, playwright and historian and among the most literary Anti-Federalists—who considered what the delegates to the Constitutional Convention had wrought in that sweltering Philadelphia summer of 1787 and said No. They included dissenting delegates to that convention, like George Mason of Virginia; patriots still afire with the spirit of ’76, like Patrick Henry; and backcountry farmers and cobblers and libertarian editors and malcontent lay-abouts. They were “not simply blockheads standing in the way of progress,” wrote Robert Rutland in The Ordeal of the Constitution, “but … serious, oftentimes brilliant, citizens who viewed the Constitution in 1787–88 with something less than awe.”3
The Anti-Federalists regarded consolidation of governmental power with what seems to me a meet suspicion, though it has seemed to others to verge on paranoia. One of my favorite Anti-Fed pseudonyms was taken by the writer who called himself “None of the Well-Born Conspirators.”
They often made wild predictions about where this all would lead. For instance, George Clinton—not the funky parliamentarian but the New York Anti-Federalist—prophesied that the federal city created by the Constitution, later known as Washington, D.C., “would be the asylum of the base, idle, avaricious and ambitious.”4 Gee, thank God that never happened.
The Anti-Federalists raised a central question of political philosophy: Where ought political power to reside? In a remote central authority, or hard by the people? (My invidious phrasing, I admit.) A prominent Federalist—which is to say, using the down-is-up nomenclature devised by those crafty consolidationists, an advocate of the new Constitution—lectured that “we must forget our local habits and attachments,”5 but this is only possible for those who have no local habits or attachments. One might as well enjoin that “we must forget our heart and lungs.”
The sheer scope of this new system, the audacity of bringing thirteen far-flung states under one central government, astonished the Anti-Federalists. James Winthrop of Massachusetts marveled, “The idea of an uncompounded republick, on an average one thousand miles in length, and eight hundred in breadth, and containing six millions of white inhabitants all reduced to the same standard of morals, of habits, and of laws, is in itself an absurdity, and contrary to the whole experience of mankind.… Large and consolidated empires may indeed dazzle the eyes of a distant spectator with their splendour, but if examined more nearly are always found to be full of misery.”6
More poetically, a Charleston versifier lamented:
Ye, who have bled in Freedom’s sacred cause,
Ah, why desert her maxims and her laws?
When thirteen states are moulded into one
Your rights are vanish’d and your honors gone;
The form of Freedom alone shall remain,
As Rome had Senators when she hugg’d the chain.7
The Antis were not quibblers, not captious carpers arguing about dotted i’s and uncrossed t’s. Their objections cut to the heart of the new Constitution. Indeed, they began with the preamble. Samuel Adams, brewer and sometime Anti-Federalist, upon reading “We the People of the United States,” remarked wryly, “as I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States.”8 Patrick Henry stumbled, too: “The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America”—a locution that was “extremely pernicious, impolitic, and dangerous.”9
While the Federalists admired the finely wrought constitutional machinery, with its balance of powers, its cunning methods of nullifying the harmful effects of faction, of cupidity, of powerlust, the Anti-Federalists struck at the root. “For the Anti-Federalists,” wrote the historian Herbert J. Storing, “government is seen as itself the major problem.”10
They objected to almost every feature of the Constitution. Anti-Federalists wanted annual elections. A larger House of Representatives whose members were paid by the states, not the central government, so that they did not forget on which side their bread was buttered. Rotation in office, or term limits. A Bill of Rights. Limitations on standing armies. No “general welfare” clause, which, as the Biddeford, Massachusetts, Anti-Federalist Silas Lee predicted, would “be construed to extend to every matter of legislation.”11
At the head of this unitary state was a single executive whose powers were insufficiently checked. “Who can deny,” asked “Philadelphiensis,” that “the president general will be … a king elected to command a standing army?”12
The Anti-Federalists stood for decentralism, local democracy, antimilitarism, and a deep suspicion of central governments. And they stood on what they stood for. Local attachments. Local knowledge. While the Pennsylvania Federalist Gouverneur Morris “flattered himself he came here in some degree as a Representative of the whole human race,”13 Anti-Federalists understood that one cannot love an abstraction such as “the whole human race.” One loves particular flesh-and-blood members of that race. “My love must be discriminate / or fail to bear its weight,”14 in the words of a modern Anti-Federalist, the Kentucky poet-farmer Wendell Berry. He who loves the whole human race seldom has much time for individual members thereof.
Contra the court historians, the Antis were cautious, prudent, grounded, attached. They were not the party of vainglory in 1787–88. “Under no circumstances did Antifederalists think of themselves as immortals winning undying fame for themselves,” wrote Michael Lienesch. “In fact, they were at their rhetorical best in scoffing at the pretentions [sic] of those Federalists who pictured themselves in the role of classical legislators.”15
They were plain people whose homely dreams ran not to national greatness. What to men of station was the periphery was to them the heart. Massachusetts Anti Amos Singletary of Worcester County told the state’s ratifying convention that “These lawyers and men of learning, and moneyed men that talk so finely, and gloss over matters so smoothly, to make us, poor illiterate people, swallow down the pill, expect to get into Congress themselves; they expect to be the managers of this Constitution, and get all the power and all the money into their own hands, and then they will swallow up all us little folks … just as the whale swallowed up Jonah.”16
Things were spiralling out of control. The scale was getting too big. Anti-Federalist Samuel Chase of Maryland (whose path we will cross again) objected that “the distance between the people and their Representatives will be so very great that there is no probability of a Farmer or Planter being chosen. Mechanics of every Branch will be excluded by a general voice from a Seat. Only the Gentry, the Rich & well born will be elected.”17
This seems to me incontrovertibly true, and never more so than today. In smaller polities representatives are, in some sense, representative. My town council includes an electrician, a housewife, a custodian, and my lovely wife, whose academic training was in philosophy. This, I daresay, is a far more representative body than the U.S. Congress, and the town council’s nearness to its constituency endows it with a legitimacy I may not always agree with its acts but I can remonstrate, face to face, with those who make the local laws. I cannot do so at the national level. And our town council, whatever mistakes it might make, does not have blood dripping from its claws.
This exordium leads us, finally, to my subject, the Anti’s Anti, the man who is, without doubt, the least honored delegate to the Constitutional Convention.
Martin Luther launched a reformation. Martin Luther King Jr. got a national holiday. Yet what does their nominal inversion, Luther Martin, get? No respect. The total eclipse of this unfortunate son was observed as early as January 1869, when the Saturday Bulletin noted of Martin: “He has only been dead about forty years, and yet his name has almost passed into oblivion.… As it is, his fame is mainly traditionary, and in another generation will be almost forgotten.”18 In 1903, after recounting Martin’s eventful life, Ashley M. Gould told the Maryland State Bar Association, “No monuments are erected to do reverence to his memory; there is no published edition of his works.”19
I am no account as a monument builder but among my venial sins I am a novelist, and I’ve wondered for nigh unto twenty-five years now why no one has written a novelistic treatment of Luther Martin’s life.
He was … well, let’s take a look at his press clippings.
William Pierce, the Georgia delegate who left us capsule sketches of his fellow immortals, wrote of Martin that “This Gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him.”20
Chief Justice Roger Taney remembered Martin’s “utter disregard of good taste and refinement in his dress and language and … manner of eating.”21 (Aha, says my wife, the long-suffering Lucine, who has identified me as a housemartin.)
A New Jersey farmboy of modest origins, a top scholar at the College of New Jersey (later Princeton), a teacher in Maryland, a young lawyer on the make, Luther Martin’s humble origins and eccentric behavior left him “a misfit in the Maryland aristocracy,” as Forrest McDonald writes.22
Popular accounts of the Constitutional Convention designate Martin as the villain—think a circa-1973 hybrid of Dennis Hopper and Ernest Borgnine, endlessly talkative but fitfully coherent, an obstructionist, a naysayer. He is the town drunk, the class bore, the motormouth. Though at Princeton he had been active in the Well Meaning Society, a debate club, this seems to have affected him rather as the Catholic catechism did young Ted Kennedy. It didn’t take. Martin tried well meaning, found it wanting, and lit out for Verbosity Hill.
Historians have not been kind to Luther Martin. “He proved to be a tiresome speaker,”23 says Max Farrand, who ascribes this fault to Martin’s “school-teaching days.”24 To Clinton Rossiter he is “garrulous, sour, and pigheaded,” albeit “an influential pricker of egos and consciences.”25 Catherine Drinker Bowen refers to “his boisterous and interminable harangues”; Martin, as she describes him in Philadelphia, “was about forty, broad of shoulder, carelessly dressed, with short hair, a long nose, a rough voice and a convivial liking for the bottle which later was to lead him into insolvency and disgrace. He was impulsive, undisciplined, altogether the wild man of the Convention, furious defender of state sovereignty, by no means foolish in all he said.”26
In any event, Martin is glimpsed through a shot glass, darkly. The imagery of alcohol, of dipsomania, surrounds him, imbibes him. Brandy—what a good wife she would be. Martin never denied his habitual intoxication but offered only this exculpatory remark: “In the heat of the summer my health requires that I should drink in abundance to supply the amazing waste from perspiration.”27 The sweat defense.
His villainy extends even into Jean Fritz’s popular children’s book, Shh! We’re Writing the Constitution (1987). Her Martin is “a tall, mussed-up looking man who loved the sound of his own voice so much that once he started talking, he couldn’t bear to stop. He … was so boring that Madison didn’t even bother to write it all down and Benjamin Franklin went to sleep.”28 Well, look: Franklin would have fallen asleep during a lap dance, and Madison was a selective, not to mention tendentious, secretary. Jean Fritz also accuses Martin of swiping books from the Philadelphia library I suppose that only a word-count-conscious editor kept her from indicting poor Luther for chewing gum in class and running in the halls.
Yet scratch hard enough and the tarnish of eleven score years fades to reveal another Martin. He was also, as the historian M. E. Bradford has written, “The tireless champion of the sovereignty of the states … A cheerful pessimist … and a great original.”29 His eristic talents were widely celebrated. Chief Justice William H. Rehnquist called Martin “one of the great lawyers in American history, and also one of the great iconoclasts of the American legal profession.”30 In his marvelous novel Burr (1973), Gore Vidal’s narrator describes his hero’s attorney as “the redoubtable Tory, the drunk, the brilliant, the incomparable Luther Martin (easily the best trial lawyer of our time).”31
“The federalistic principles found in the Constitution are largely a result of concessions to [Martin’s] demands,” wrote historian Everett D. Obrecht. “Without his presence in the convention, the new national government would have been far more powerful.”32 Yet it was still too powerful for Luther Martin. He left Philadelphia on September 4, 1787, and though he did not return to give “my solemn negative” to the document, he did phone in a request, as it were: “that as long as the history of mankind shall record the appointment of the late Convention, and the system which has been proposed by them, it is my highest ambition that my name also be recorded as one who considered the system injurious to my country, and as such opposed it.”33
Consider it done, Luther.
Let us revisit the Philadelphia experiment.…
PART ONE
THE PHILADELPHIA STORY
THE MOST TEDIOUS SECTION OF ANY BIOGRAPHY OF A FOUND-ing Father—or Confounding Father, as per Luther Martin—is that three- or four-page stretch of genealogy that we impatiently browse to get to the good stuff. I am tempted to follow Elmore Leonard’s sage advice to novelists to “leave out all the parts readers skip,”1 especially given the paucity of extant information on “all that David Copperfield” stuff about Luther Martin.
But let me instead recommend the only biography of Martin ever published—Luther Martin of Maryland (1970) by Paul S. Clarkson and R. Samuel Jett.2 Coauthor Clarkson was a book collector, Sherlock Holmesian, highly decorated Baker Street Irregular, and founder of the Six Napoleons of Baltimore. Clarkson and Jett did an uncommonly fine job filling in the details of Martin’s legal career. Theirs was a labor of Maryland piety and of love.
What little we know of Luther Martin’s early life comes from the horse’s disputatious mouth, for Martin left an autobiographical fragment in the form of a curious five-part pamphlet titled Modern Gratitude (1802).
Invective-filled, freeswinging, written at white heat and white hate and directed at the cad who seduced his fifteen-year-old daughter, Modern Gratitude is the source of most of our knowledge of Martin’s life before his Philadelphia summer. Rather like a blog, it lacked an editorial filter, and so the foulest calumnies are hurled at Richard Raynal Keene, the Baltimore Lothario who insinuated himself into Martin’s home and stole dear Eleonora. Daddy, as was his wont, came out swinging. But more on that anon.
“I am an American born, of the fourth or fifth generation,” declared Martin, lest anyone suspect from his periodic uncouthness that he was fresh off the boat. His forbears had come to the new world from the west of England as early as 1623 and settled in the Piscataqua region of what is now New Hampshire. Clarkson and Jett fix as the fall of 1666 the migration of the leading families of Piscataqua to an area east of New Brunswick, New Jersey, near the Raritan River. The settlers named their new place Piscataqua, after that which they had left. It was “an uncultivated wilderness,” Martin reminds us, “inhabited by its copper-coloured aborigines.”3 Today it is Piscataway, best known as home of the Rutgers Scarlet Knights.
“My ancestors were, and most of their descendants have been, of that class or ‘sect’ of people known as agriculturalists or cultivators of the earth,” writes Martin, who cannot record even such boilerplate without setting aside a clause in which he sneers at the hated “sage philosopher” Thomas Jefferson’s estimation that such are “God’s chosen people.”4 Why did he detest Jefferson, the Founding deity nighest unto the Anti-Federalist persuasion? Patience, dear reader. No shortcuts via the index, please.
Martin’s birth year is variously dated at 1744 and 1748, though by his own account the latter date seems accurate. Clarkson and Jett, the most trustworthy of later sources, estimate his day of birth at February 20, 1748. He was the third of nine children borne by Hannah Martin of her husband Benjamin. All lived to maturity— a rare nonuple.
In August of his thirteenth year, young man Luther “was sent to Princeton college,”5 then known as the College of New Jersey, seedbed of the Constitutional Convention. His college chums included a fellow New Jerseyan, William Paterson, who proposed the true federalist alternative in Philadelphia in 1787, and thus is the father of the constitutional republic of the America that never happened.
Of the thirty-one (Martin says thirty-five) members of his Princeton class of 1766, Martin ranked first in languages and, by his own account, “second to none in the sciences.”6 (Martin was as liberal in the use of italics as he was of intoxicants. Herein I’ve saved the reader from enduring much, but not all, of Martin’s eager emphasis.) He had been an organizer, along with future convention delegates Paterson and Oliver Ellsworth of Connecticut, who would abuse Martin in a postconventlon open letter so stinging that its venom lingers to this day, of the puckishly named Well Meaning Society, whose meaning, perhaps, was understood all too well by the divines of the college, who suppressed the society and its rival, the Plain Dealing Society (The Well Meaning Society resurfaced in 1770 as the Cliosophic Society, which to this day kisses up to influential personages.)
James Madison, Aaron Burr, Philip Freneau, Benjamin Rush: Princetonians were represented—how well we venture not to say—at the Founding. Nine delegates at Philadelphia were Princeton graduates. Republicans, if not Anti-Federalists, were grown at the College of New Jersey.
Immodestly, perhaps, Martin urged those who doubted his character to seek out his old classmates, for they would testify to “the friendliness of my disposition, the correctness of my manners … my assiduity in my studies … [and] my literary attainments.”7
Martin was graduated from Princeton five months shy of his nineteenth birthday. His resolve “fixed upon the profession of law,”8 he sought a position in Philadelphia, vainly. But in the course of application he learned that the master of the Free-School of Queen Anne’s County on Maryland’s Eastern Shore had recently dropped dead. He got the job. (A Reverend Keene, uncle of the rascal who would seduce Martin’s daughter, was among the school’s trustees.)
Viewing the teaching post as a temporary stop on the path to the bar, Martin plied the pedagogical arts at Queen Anne’s until April 1770. We have no reason at this point to doubt his sobriety, but the improvidence that would beggar him till his dying day was already in evidence. Not that Martin felt any shame about his indebtedness. “I am not even yet,” he wrote in 1802, “I was not then, nor have I ever been, an economist of anything but time.” The cost of food, lodging, clothing, and a twenty-one-year-old’s incidentals add up, so “No person will think it a matter of surprize [sic], much less of disgrace, that I did not rigidly restrain my expenditures to my income—or that a youth of my age, of a warm and generous heart, left so totally to his own guidance, should become indebted beyond his power of immediate payment.”9 Would that every spendthrift lad with a maxed-out credit card were as eloquent!
His creditors were unmoved. Five writs were served upon him. (Though his cumulative debts, he tells us, were a “paltry sum, not exceeding two hundred dollars!”) In March 1770, they were “struck off” at the county court.10 Martin left Queen Anne’s County shortly thereafter. The venomous Keene would imply much later that Martin’s path out of town was garlanded by drink and damsels, but this likely is a roorback, for Martin seems to have been well regarded by the superintending Board of Visitors. (In 1779, Martin would engage in a brief broadside war with a critic who suggested that the young teacher left town just ahead of an irate father. Martin sprayed his accuser with an impressive staccato of invective and added, primly, that he had overcome “the extreme reluctance, which I naturally have for news-paper controversies.”11 He professed to “hate controversies as I hate ratbane.”12 That didn’t last long.)
Martin made his way down the Eastern Shore to Virginia, where he taught for a year at the unfortunately named Onancock Grammar School. By night he studied law, and in September 1771 he was examined at Williamsburg by the formidable duo of Virginia Attorney General John “the Tory” Randolph (not to be confused with the brilliant and eccentric Tertium Quid of the same name) and George Wythe, who in fewer than five years would sign the Declaration of Independence. Martin was granted license to practice in the county courts of Virginia. Thus began the career of “one of the ablest lawyers which our country has produced.”13
The call of his ancestral Jersey home must have been dim indeed, for Martin determined upon a Virginia residence. In April 1772 the new lawyer traveled to Williamsburg as part of a tour “to determine on the place” where he might cast down his bucket.14 Here he befriended another garrulous Anti-Federalist of the future, Patrick Henry. For six months he ranged and reconnoitered through the Old Dominion, visiting friends and frontiersmen. Upon returning to the Eastern Shore he was informed that a trio of able lawyers had passed on to their rewards. New shingles were begging to be hanged. Luther Martin commenced his practice in four Eastern Shore counties, two in Virginia and two in Maryland. He made a home—for the nonce—in Somerset County, Maryland, natal place of the Maryland revolutionary Samuel Chase. Soon he was earning, by his own account, one thousand pounds per year, though as an economist of nothing but time, his creditors were never scarce.
His sympathies were squarely with the incipient revolution. In 1774 he was—“in my absence and without being consulted,” he hastens to add—selected by the people of Somerset to serve as a delegate to a November statewide meeting in Annapolis that had been called by Maryland’s Continental Congress delegation for the purpose of protesting British policies. Martin attended, and of his fervent patriotism he was ever proud. He was no sunshine patriot, waving flags as Johnny came marching home in victory; as he recalled in Modern Gratitude, “there was a period of considerable duration, throughout which, not only myself, but many others, acting in the same manner, did not lay down one night on their beds, without the hazard of waking on board a British armed ship, or in the other world.”15
Martin fought the Revolution with writ, pen, handbill, and perhaps even blunderbuss. He distributed—“at great personal risk”—the first copies of Thomas Paine’s Common Sense in Somerset County.16 (He certainly would have agreed with Paine’s famous distinction that “Society in every state is a blessing, but government, even in its best state, is but a necessary evil.”)17 He self-published and distributed his response (first appearing in the September 9, 1777, Maryland Gazette) to General William Howe’s pledge that the king’s army would not plunder the property or “molest the persons of any of his Majesty’s WELL DISPOSED SUBJECTS.”
No one ever accused Luther Martin of a well disposition; he fired back against the “cruel and deceitful enemy” and reprehended His Majesty’s loyalists as “base coward[s]” who were the “enem[ies] to virtue and freedom.”18
He would soon be in position to do something about it, if not on the field of battle (though he did serve, with something less than Valley Forge-ish arduousness, with the Baltimore Light Dragoons), then in the court of law. With the sponsorship of Samuel Chase, with whom Martin’s career would intersect so many times over the years, he was appointed by Governor Thomas Johnson as attorney general of Maryland on February 11, 1778. He went after bellicose loyalists with especial vigor, but his conduct in office was generally praised.
As if coalescing the regions of his adopted state, the young Eastern Shore lawyer, now resident in Baltimore, wed the daughter of a prominent western Maryland frontier family. On Christmas Day, 1783, he married Maria Cresap, in whose home he had tarried during his postgraduate tour of the outback.
The details of Martin’s attorney generalship, ably traced by Clarkson and Jett, are of limited interest to us. His courtroom comportment, however, is directly relevant. Contemporaneous observers conceded his considerable talents while dwelling on the unorthodox means he employed to achieve his goal. “Mr. Martin seemed indifferent to everything else, provided he impressed upon the Court the idea he wished to convey,” recalled Roger B. Taney. Martin lacked an internal editor; he spoke without organization, throwing out anything that might stick to its target. “Martin would plunge into a case when he had not even read the record,” wrote Taney, “relying on the fulness of readiness of his own mind; and, if he found unexpected difficulties, would waste a day in a rambling, pointless, and wearisome speech against time, in order to gain a night to look into the case.”19
We will hear more about wearisome two-day speeches.
By the mid-1780s, he was well on his way to becoming the state drunkard. Tales of his bibulosity are common, and as is often the case with tosspots they can partake of both pathos and humor, usually in some uneasy combination. In one trial he undertook a definition of his frequent condition: “A man is drunk when after drinking liquor he says or does that which he would not otherwise have said or done.”20 If true, it will not matter how much he drinks in the taverns of the City of Brotherly Love—he meant every word he said in Independence Hall.
Money, like alcohol, ran through Luther Martin. His “chief faults,” according to the Dictionary of American Biography, “were his intemperance and his improvidence in financial affairs.”21 He never met a dollar worthy of saving. Martin’s finances were as unsteady as a drunkard’s gait. Having not the advantages of hereditary wealth or a nearby discount liquor store, making due as a schoolteacher and then a tyro lawyer, he was ever bobbing on a sea of indebtedness. This “want of economy in his pecuniary affairs,” in James B. Longacre’s cushiony phrase, “was prominent through life.”22
Even a sympathetic historian called him “a profligate spendthrift of the worst type.”23 Yet he was not greedy, nor was he a chiseler. He cheated no man. He spent freely, though he sometimes spent money he had not made. Not yet. But if the gentleman creditor would just be patient, the prospects for repayment were favorable. Eftsoons, my good man, eftsoons. The check is in the mail.
If Martin took more interest in public affairs than he did in the mere accumulation of material wealth, he did not submit to the biblical injunction and take what he had and give to the poor. Like other striving Maryland men, he bought properties confiscated during the Revolution: four lots at 2,360 pounds from the estate of an English merchant in April 1781; and with three other investors, including Samuel Chase, he bought three lots that had been seized from the Principio Company, absentee British landlords. Expropriating the expropriators, you might say. Of the 3,150 pounds he had invested in confiscated property, almost 600 pounds remained unpaid to the state treasury as of 1788.24
Martin, Chase, William Paca, and other Anti-Federalist speculators in confiscated land were often found on the paper money side of financial debates in Maryland in the mid-1780s, a fact seized upon by critics to establish that they, like virtually every other public figure, may have voted on occasion in self-interest. The debtors primarily owed British creditors and the tax collector—unsympathetic and, by some revolutionary reckonings, illegitimate dunners. Petitioners from rural areas entreated the governor to “mitigate the rigors of tax collection.”25 Maryland courts were clogged with debt suits; sheriffs and taxmen cut their confiscatory swath through the distressed farmlands of the state.
As the economy slumped in the mid-1780s, the yeomanry—as well as lawyers who had speculated none too shrewdly in real estate, such as Samuel Chase—demanded state issuance of cheap paper money by which these dubious debts might be retired. Even in Maryland, by reputation oligarchic rather than populist, popular resistance grew to writ and vendue. In best American fashion, the resistance blended the communal and the libertarian. Neighbors packed public auctions of property seized for nonpayment of taxes. Officers who aided in the confiscation of private property were threatened; tax collectors slept uneasily. The redemption songs of the Shaysites were borne on the night wind.
The Maryland House of Delegates and Senate were at protracted loggerheads over the issuance of paper money and the treatment of debtors. This wrangling was part of the reason why the leaders of the pro– and anti–paper money factions declined appointment to the Philadelphia convention of 1787. Which opened the door to Luther Martin.
The delegates did not gather in Philadelphia with a license to simply rip up the Articles of Confederation and start anew. The pertinent comma-tose congressional resolution of February 21, 1787, read: “Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation (my emphasis) and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.”26
In his elegant dissection Our Enemy, the State (1935), Albert Jay Nock terms the convention “a coup d’Etat, organized by methods which if employed in any other field than that of politics, would be put down at once as not only daring, but unscrupulous and dishonourable.” With Beardian boldness, Nock charges the Founders with “simply tossing the Articles of Confederation into the waste-basket, and drafting a constitution de novo, with the audacious provision that it should go into effect when ratified by nine units instead of all thirteen.”27
The Articles, drawn up and debated in Congress during the Revolutionary dawn of 1776–77, linked the thirteen states in “a firm league of friendship” to secure their liberties and the common defense.28 The powers of this confederacy—the United States of America—were strictly limited, for the authors knew that “men in power naturally lusted for more power and that restraints must be put on officeholders or the liberties of the people would inevitably suffer.”29
The states entered the confederation as perfect equals: each possessed a single vote in Congress, though their delegations might consist of between two and seven members. Significant legislation required a supermajority of nine votes; amendments required a unanimous thirteen. No person could serve in Congress for more than three years in any six-year period. Members could also be recalled at the pleasure of the states. The confederacy had not the power to regulate commerce or prohibit Rhode Island from issuing paper money or levy direct taxes on New Yorkers or any of a thousand other acts that the union would ultimately commit.
The Articles were rescued from Ignominy and obscurity in the 1940s by University of Wisconsin colonial historian Merrill Jensen, a South Dakota farmboy whose populist sympathies and belief that “above all, the Revolution itself was a revolt against centralization of political authority” disposed him to view kindly the Articles of Confederation.30
“[T]he constitution which the radicals created, the Articles of Confederation, was a constitutional expression of the philosophy of the Declaration of Independence,” wrote Merrill Jensen. It was libertarian in its suspicion of state power and decentralist in its preference for dispersed, localized governance. It was based in the “belief that democracy was possible only within fairly small political units whose electorate had a direct check upon the officers of government.”31