[346] _Jour. Va. House Del._ for Nov. 25, 1786.

[347] For example, Curtis, _Hist. Const._ ii. 553-554.

[348] Rives, _Life of Madison_, i. 536-537.

[349] Madison, _Letters_, etc. i. 80.

[350] Bancroft, _Hist. Const._ i. 162.

[351] Madison, _Letters_, etc. i. 264.

[352] _Secret Jour. Cong._ iv. 44-63.

[353] Rives, _Life of Madison_, ii. 122.

[354] Rives, _Life of Madison_, ii. 119-120.

[355] _Jour. Va. House Del._ 66-67.

[356] Madison, _Letters_, etc. i. 264.

[357] Rives, _Life of Madison_, ii. 238-239.

[358] R. H. Lee, _Life of A. Lee_, ii. 321.

[359] Sparks, _Corr. Rev._ iv. 168.

[360] _Madison Papers_, ii. 623.

[361] _Madison Papers_, 627.

CHAPTER XVIII

THE BATTLE IN VIRGINIA OVER THE NEW CONSt.i.tUTION

The great convention at Philadelphia, after a session of four months, came to the end of its n.o.ble labors on the 17th of September, 1787.

Washington, who had been not merely its presiding officer but its presiding genius, then hastened back to Mt. Vernon, and, in his great anxiety to win over to the new Const.i.tution the support of his old friend Patrick Henry, he immediately dispatched to him a copy of that instrument, accompanied by a very impressive and conciliatory letter,[362] to which, about three weeks afterwards, was returned the following reply:--

RICHMOND, October 19, 1787.

DEAR SIR,--I was honored by the receipt of your favor, together with a copy of the proposed federal Const.i.tution, a few days ago, for which I beg you to accept my thanks. They are also due to you from me as a citizen, on account of the great fatigue necessarily attending the arduous business of the late convention.

I have to lament that I cannot bring my mind to accord with the proposed Const.i.tution. The concern I feel on this account is really greater than I am able to express. Perhaps mature reflections may furnish me with reasons to change my present sentiments into a conformity with the opinions of those personages for whom I have the highest reverence. Be that as it may, I beg you will be persuaded of the unalterable regard and attachment with which I shall be,

Dear Sir, your obliged and very humble servant,

P. HENRY.[363]

Four days before the date of this letter the legislature of Virginia had convened at Richmond for its autumn session, and Patrick Henry had there taken his usual place on the most important committees, and as the virtual director of the thought and work of the House. Much solicitude was felt concerning the course which he might advise the legislature to adopt on the supreme question then before the country,--some persons even fearing that he might try to defeat the new Const.i.tution in Virginia by simply preventing the call of a state convention. Great was Washington's satisfaction on receiving from one of his correspondents in the a.s.sembly, shortly after the session began, this cheerful report:--

"I have not met with one in all my inquiries (and I have made them with great diligence) opposed to it, except Mr.

Henry, who I have heard is so, but could only conjecture it from a conversation with him on the subject.... The transmissory note of Congress was before us to-day, when Mr. Henry declared that it transcended our powers to decide on the Const.i.tution, and that it must go before a convention. As it was insinuated he would aim at preventing this, much pleasure was discovered at the declaration."[364]

On the 24th of October, from his place in Congress, Madison sent over to Jefferson, in Paris, a full account of the results of the Philadelphia convention, and of the public feeling with reference to its work: "My information from Virginia is as yet extremely imperfect.... The part which Mr. Henry will take is unknown here. Much will depend on it. I had taken it for granted, from a variety of circ.u.mstances, that he would be in the opposition, and still think that will be the case. There are reports, however, which favor a contrary supposition."[365] But, by the 9th of December, Madison was able to send to Jefferson a further report, which indicated that all doubt respecting the hostile att.i.tude of Patrick Henry was then removed. After mentioning that a majority of the people of Virginia seemed to be in favor of the Const.i.tution, he added: "What change may be produced by the united influence and exertions of Mr. Henry, Mr.

Mason, and the governor, with some pretty able auxiliaries, is uncertain.... Mr. Henry is the great adversary who will render the event precarious. He is, I find, with his usual address, working up every possible interest into a spirit of opposition."[366]

Long before the date last mentioned, the legislature had regularly declared for a state convention, to be held at Richmond on the first Monday in June, 1788, then and there to determine whether or not Virginia would accept the new Const.i.tution. In view of that event, delegates were in the mean time to be chosen by the people; and thus, for the intervening months, the fight was to be transferred to the arena of popular debate. In such a contest Patrick Henry, being once aroused, was not likely to take a languid or a hesitating part; and of the importance then attached to the part which he did take, we catch frequent glimpses in the correspondence of the period. Thus, on the 19th of February, 1788, Madison, still at New York, sent this word to Jefferson: "The temper of Virginia, as far as I can learn, has undergone but little change of late. At first, there was an enthusiasm for the Const.i.tution. The tide next took a sudden and strong turn in the opposite direction. The influence and exertions of Mr. Henry, Colonel Mason, and some others, will account for this.... I am told that a very bold language is held by Mr. Henry and some of his partisans."[367] On the 10th of April, Madison, then returned to his home in Virginia, wrote to Edmund Randolph: "The declaration of Henry, mentioned in your letter, is a proof to me that desperate measures will be his game."[368] On the 22d of the same month Madison wrote to Jefferson: "The adversaries take very different grounds of opposition.

Some are opposed to the substance of the plan; others, to particular modifications only. Mr. Henry is supposed to aim at disunion."[369] On the 24th of April, Edward Carrington, writing from New York, told Jefferson: "Mr. H. does not openly declare for a dismemberment of the Union, but his arguments in support of his opposition to the Const.i.tution go directly to that issue. He says that three confederacies would be practicable, and better suited to the good of commerce than one."[370] On the 28th of April, Washington wrote to Lafayette on account of the struggle then going forward; and after naming some of the leading champions of the Const.i.tution, he adds sorrowfully: "Henry and Mason are its great adversaries."[371]

Finally, as late as on the 12th of June, the Rev. John Blair Smith, at that time president of Hampden-Sidney College, conveyed to Madison, an old college friend, his own deep disapproval of the course which had been pursued by Patrick Henry in the management of the canva.s.s against the Const.i.tution:--

"Before the Const.i.tution appeared, the minds of the people were artfully prepared against it; so that all opposition [to Mr. Henry] at the election of delegates to consider it, was in vain. That gentleman has descended to lower artifices and management on the occasion than I thought him capable of.... If Mr. Innes has shown you a speech of Mr. Henry to his const.i.tuents, which I sent him, you will see something of the method he has taken to diffuse his poison.... It grieves me to see such great natural talents abused to such purposes."[372]

On Monday, the 2d of June, 1788, the long-expected convention a.s.sembled at Richmond. So great was the public interest in the event that a full delegation was present, even on the first day; and in order to make room for the throngs of citizens from all parts of Virginia and from other States, who had flocked thither to witness the impending battle, it was decided that the convention should hold its meetings in the New Academy, on Shockoe Hill, the largest a.s.sembly-room in the city.

Eight States had already adopted the Const.i.tution. The five States which had yet to act upon the question were New Hampshire, Rhode Island, New York, North Carolina, and Virginia. For every reason, the course then to be taken by Virginia would have great consequences.

Moreover, since the days of the struggle over independence, no question had so profoundly moved the people of Virginia; none had aroused such hopes and such fears; none had so absorbed the thoughts, or so embittered the relations of men. It is not strange, therefore, that this convention, consisting of one hundred and seventy members, should have been thought to represent, to an unusual degree, the intelligence, the character, the experience, the reputation of the State. Perhaps it would be true to say that, excepting Washington, Jefferson, and Richard Henry Lee, no Virginian of eminence was absent from it.

Furthermore, the line of division, which from the outset parted into two hostile sections these one hundred and seventy Virginians, was something quite unparalleled. In other States it had been noted that the conservative cla.s.ses, the men of education and of property, of high office, of high social and professional standing, were nearly all on the side of the new Const.i.tution. Such was not the case in Virginia. Of the conservative cla.s.ses throughout that State, quite as many were against the new Const.i.tution as were in favor of it. Of the four distinguished citizens who had been its governors, since Virginia had a.s.sumed the right to elect governors,--Patrick Henry, Jefferson, Nelson, and Harrison,--each in turn had denounced the measure as unsatisfactory and dangerous; while Edmund Randolph, the governor then in office, having attended the great convention at Philadelphia, and having there refused to sign the Const.i.tution, had published an impressive statement of his objections to it, and, for several months thereafter, had been counted among its most formidable opponents.

Concerning the att.i.tude of the legal profession,--a profession always inclined to conservatism,--Madison had written to Jefferson: "The general and admiralty courts, with most of the bar, oppose the Const.i.tution."[373] Finally, among Virginians who were at that time particularly honored and trusted for patriotic services during the Revolution, such men as these, Theodoric Bland, William Grayson, John Tyler, Meriwether Smith, James Monroe, George Mason, and Richard Henry Lee, had declared their disapproval of the doc.u.ment.

Nevertheless, within the convention itself, at the opening of the session, it was claimed by the friends of the new government that they then outnumbered their opponents by at least fifty votes.[374] Their great champion in debate was James Madison, who was powerfully a.s.sisted, first or last, by Edmund Pendleton, John Marshall, George Nicholas, Francis Corbin, George Wythe, James Innes, General Henry Lee, and especially by that same Governor Randolph who, after denouncing the Const.i.tution for "features so odious" that he could not "agree to it,"[375] had finally swung completely around to its support.

Against all this array of genius, learning, character, logical ac.u.men, and eloquence, Patrick Henry held the field as protagonist for twenty-three days,--his chief lieutenants in the fight being Mason, Grayson, and John Dawson, with occasional help from Harrison, Monroe, and Tyler. Upon him alone fell the brunt of the battle. Out of the twenty-three days of that splendid tourney, there were but five days in which he did not take the floor. On each of several days he made three speeches; on one day he made five speeches; on another day eight. In one speech alone, he was on his legs for seven hours. The words of all who had any share in that debate were taken down, according to the imperfect art of the time, by the stenographer, David Robertson, whose reports, however, are said to be little more than a pretty full outline of the speeches actually made: but in the volume which contains these abstracts, one of Patrick Henry's speeches fills eight pages, another ten pages, another sixteen, another twenty-one, another forty; while, in the aggregate, his speeches const.i.tute nearly one quarter of the entire book,--a book of six hundred and sixty-three pages.[376]

Any one who has fallen under the impression, so industriously propagated by the ingenious enmity of Jefferson's old age, that Patrick Henry was a man of but meagre information and of extremely slender intellectual resources, ignorant especially of law, of political science, and of history, totally lacking in logical power and in precision of statement, with nothing to offset these deficiencies excepting a strange gift of overpowering, dithyrambic eloquence, will find it hard, as he turns over the leaves on which are recorded the debates of the Virginia convention, to understand just how such a person could have made the speeches which are there attributed to Patrick Henry, or how a mere rhapsodist could have thus held his ground, in close hand-to-hand combat, for twenty-three days, against such antagonists, on all the difficult subjects of law, political science, and history involved in the Const.i.tution of the United States,--while showing at the same time every quality of good generalship as a tactician and as a party leader. "There has been, I am aware," says an eminent historian of the Const.i.tution, "a modern scepticism concerning Patrick Henry's abilities; but I cannot share it.... The manner in which he carried on the opposition to the Const.i.tution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence."[377]

But, now, what were Patrick Henry's objections to the new Const.i.tution?

First of all, let it be noted that his objections did not spring from any hostility to the union of the thirteen States, or from any preference for a separate union of the Southern States. Undoubtedly there had been a time, especially under the provocations connected with the Mississippi business, when he and many other Southern statesmen sincerely thought that there might be no security for their interests even under the Confederation, and that this lack of security would be even more glaring and disastrous under the new Const.i.tution.

Such, for example, seems to have been the opinion of Governor Benjamin Harrison, as late as October the 4th, 1787, on which date he thus wrote to Washington: "I cannot divest myself of an opinion that ... if the Const.i.tution is carried into effect, the States south of the Potomac will be little more than appendages to those to the northward of it."[378] It is very probable that this sentence accurately reflects, likewise, Patrick Henry's mood of thought at that time.

Nevertheless, whatever may have been his thought under the sectional suspicions and alarms of the preceding months, it is certain that, at the date of the Virginia convention, he had come to see that the thirteen States must, by all means, try to keep together. "I am persuaded," said he, in reply to Randolph, "of what the honorable gentleman says, 'that separate confederacies will ruin us.'" "Sir," he exclaimed on another occasion, "the dissolution of the Union is most abhorrent to my mind. The first thing I have at heart is American liberty; the second thing is American union." Again he protested: "I mean not to breathe the spirit, nor utter the language, of secession."[379]

In the second place, he admitted that there were great defects in the old Confederation, and that those defects ought to be cured by proper amendments, particularly in the direction of greater strength to the federal government. But did the proposed Const.i.tution embody such amendments? On the contrary, that Const.i.tution, instead of properly amending the old Confederation, simply annihilated it, and replaced it by something radically different and radically dangerous.

"The federal convention ought to have amended the old system; for this purpose they were solely delegated; the object of their mission extended to no other consideration."

"The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates who were sent to Philadelphia a power to propose a consolidated government, instead of a confederacy?" "Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the States will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, so inconsiderately by others." "A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality.

If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the state governments, and swallow the liberties of the people, without giving previous notice. If gentlemen are willing to run the hazard, let them run it; but I shall exculpate myself by my opposition and monitory warnings within these walls."[380]

But, in the third place, besides transforming the old confederacy into a centralized and densely consolidated government, and clothing that government with enormous powers over States and over individuals, what had this new Const.i.tution provided for the protection of States and of individuals? Almost nothing. It had created a new and a tremendous power over us; it had failed to cover us with any shield, or to interpose any barrier, by which, in case of need, we might save ourselves from the wanton and fatal exercise of that power. In short, the new Const.i.tution had no bill of rights. But "a bill of rights," he declared, is "indispensably necessary."

"A general positive provision should be inserted in the new system, securing to the States and the people every right which was not conceded to the general government." "I trust that gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper." "Mr.

Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before. I have observed already that the sense of European nations, and particularly Great Britain, is against the construction of rights being retained which are not expressly relinquished. I repeat, that all nations have adopted the construction, that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from delegated powers.... Let us consider the sentiments which have been entertained by the people of America on this subject. At the Revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.... She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon. She is called upon now to abandon them, and dissolve that compact which secured them to her.... Will she do it? This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.... If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw,--a government that has abandoned all its powers,--the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers--pointed where? Pointed against your weakened, prostrated, enervated, state government! You have a bill of rights to defend you against the state government--which is bereaved of all power, and yet you have none against Congress--though in full and exclusive possession of all power. You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?"[381]

Again and again, in response to his demand for an express a.s.sertion, in the instrument itself, of the rights of individuals and of States, he was told that every one of those rights was secured, since it was naturally and fairly implied. "Even say," he rejoined, "it is a natural implication,--why not give us a right ... in express terms, in language that could not admit of evasions or subterfuges? If they can use implication for us, they can also use implication against us. We are giving power; they are getting power; judge, then, on which side the implication will be used." "Implication is dangerous, because it is unbounded; if it be admitted at all, and no limits prescribed, it admits of the utmost extension." "The existence of powers is sufficiently established. If we trust our dearest rights to implication, we shall be in a very unhappy situation."[382]