[393] St. George Tucker, MS.

[394] Elliot, _Debates_, iii. 580.

[395] St. George Tucker, MS.

[396] Elliot, _Debates_, iii. 625.

[397] Wirt, 296-297. Also Spencer Roane, MS.

CHAPTER XIX

THE AFTER-FIGHT FOR AMENDMENTS

Thus, on the question of adopting the new Const.i.tution, the fight was over; but on the question of amending that Const.i.tution, now that it had been adopted, the fight, of course, was only just begun.

For how could this new Const.i.tution be amended? A way was provided,--but an extremely strait and narrow way. No amendment whatsoever could become valid until it had been accepted by three fourths of the States; and no amendment could be submitted to the States for their consideration until it had first been approved, either by two thirds of both houses of Congress, or else by a majority of a convention specially called by Congress at the request of two thirds of the States.

Clearly, the framers of the Const.i.tution intended that the supreme law of the land, when once agreed to, should have within it a principle of fixedness almost invincible. At any rate, the process by which alone alterations can be made, involves so wide an area of territory, so many distinct groups of population, and is withal, in itself, so manifold and complex, so slow, and so liable to entire stoppage, that any proposition looking toward change must inevitably perish long before reaching the far-away goal of final endors.e.m.e.nt, unless that proposition be really impelled by a public demand not only very energetic and persistent, but well-nigh universal. Indeed, the const.i.tutional provision for amendments seemed, at that time, to many, to be almost a const.i.tutional prohibition of amendments.

It was, in part, for this very reason that Patrick Henry had urged that those amendments of the Const.i.tution which, in his opinion, were absolutely necessary, should be secured before its adoption, and not be left to the doubtful chance of their being obtained afterward, as the result of a process ingeniously contrived, as it were, to prevent their being obtained at all. But at the close of that June day on which he and his seventy-eight a.s.sociates walked away from the convention wherein, on this very proposition, they had just been voted down, how did the case stand? The Const.i.tution, now become the supreme law of the land, was a Const.i.tution which, unless amended, would, as they sincerely believed, effect the political ruin of the American people. As good citizens, as good men, what was left for them to do?

They had fought hard to get the Const.i.tution amended before adoption.

They had failed. They must now fight hard to get it amended after adoption. Disastrous would it be, to a.s.sume that the needed amendments would now be carried at any rate. True, the Virginia convention, like the conventions of several other States, had voted to recommend amendments. But the hostility to amendments, as Patrick Henry believed, was too deeply rooted to yield to mere recommendations. The necessary amendments would not find their way through all the hoppers and tubes and valves of the enormous mill erected within the Const.i.tution, unless forced onward by popular agitation,--and by popular agitation widespread, determined, vehement, even alarming. The powerful enemies of amendments must be convinced that, until amendments were carried through that mill, there would be no true peace or content among the surrounding inhabitants.

This gives us the clew to the policy steadily and firmly pursued by Patrick Henry as a party leader, from June, 1788, until after the ratification of the first ten amendments, on the 15th of December, 1791. It was simply a strategic policy dictated by his honest view of the situation; a bold, manly, patriotic policy; a policy, however, which was greatly misunderstood, and grossly misrepresented, at the time; a policy, too, which grieved the heart of Washington, and for several years raised between him and his ancient friend the one cloud of distrust that ever cast a shadow upon their intercourse.

In fact, at the very opening of the Virginia convention, and in view of the possible defeat of his demand for amendments, Patrick Henry had formed a clear outline of this policy, even to the extent of organizing throughout the State local societies for stirring up, and for keeping up, the needed agitation. All this is made evident by an important letter written by him to General John Lamb of New York, and dated at Richmond, June 9, 1788,--when the convention had been in session just one week. In this letter, after some preliminary words, he says:--

It is matter of great consolation to find that the sentiments of a vast majority of Virginians are in unison with those of our Northern friends. I am satisfied four fifths of our inhabitants are opposed to the new scheme of government. Indeed, in the part of this country lying south of James River, I am confident, nine tenths are opposed to it. And yet, strange as it may seem, the numbers in convention appear equal on both sides: so that the majority, which way soever it goes, will be small. The friends and seekers of power have, with their usual subtilty, wriggled themselves into the choice of the people, by a.s.suming shapes as various as the faces of the men they address on such occasions.

If they shall carry their point, and preclude previous amendments, which we have ready to offer, it will become highly necessary to form the society you mention. Indeed, it appears the only chance for securing a remnant of those invaluable rights which are yielded by the new plan. Colonel George Mason has agreed to act as chairman of our republican society. His character I need not describe. He is every way fit; and we have concluded to send you by Colonel Oswald a copy of the Bill of Rights, and of the particular amendments we intend to propose in our convention. The fate of them is altogether uncertain; but of that you will be informed. To a.s.similate our views on this great subject is of the last moment; and our opponents expect much from our dissension.

As we see the danger, I think it is easily avoided.

I can a.s.sure you that North Carolina is more decidedly opposed to the new government than Virginia. The people there seem rife for hazarding all, before they submit.

Perhaps the organization of our system may be so contrived as to include lesser a.s.sociations dispersed throughout the State. This will remedy in some degree the inconvenience arising from our dispersed situation. Colonel Oswald's short stay here prevents my saying as much on the subject as I could otherwise have done. And after a.s.suring you of my ardent wishes for the happiness of our common country, and the best interests of humanity, I beg leave to subscribe myself, with great respect and regard,

Sir, your obedient, humble servant, P. HENRY.[398]

On the 27th of June, within a few hours, very likely, after the final adjournment of the convention, Madison hastened to report to Washington the great and exhilarating result, but with this anxious and really unjust surmise respecting the course then to be pursued by Patrick Henry:--

"Mr. H----y declared, previous to the final question, that although he should submit as a quiet citizen, he should seize the first moment that offered for shaking off the yoke in a const.i.tutional way. I suspect the plan will be to encourage two thirds of the legislatures in the task of undoing the work; or to get a Congress appointed in the first instance that will commit suicide on their own authority."[399]

At the same sitting, probably, Madison sent off to Hamilton, at New York, another report, in which his conjecture as to Patrick Henry's intended policy is thus stated:--

"I am so uncharitable as to suspect that the ill-will to the Const.i.tution will produce every peaceable effort to disgrace and destroy it. Mr. Henry declared ... that he should wait with impatience for the favorable moment of regaining, in a const.i.tutional way, the lost liberties of his country."[400]

Two days afterward, by which time, doubtless, Madison's letter had reached Mount Vernon, Washington wrote to Benjamin Lincoln of Ma.s.sachusetts, respecting the result of the convention:--

"Our accounts from Richmond are that ... the final decision exhibited a solemn scene, and that there is every reason to expect a perfect acquiescence therein by the minority. Mr.

Henry, the great leader of it, has signified that, though he can never be reconciled to the Const.i.tution in its present form, and shall give it every const.i.tutional opposition in his power, yet he will submit to it peaceably."[401]

Thus, about the end of June, 1788, there came down upon the fierce political strife in Virginia a lull, which lasted until the 20th of October, at which time the legislature a.s.sembled for its autumnal session. Meantime, however, the convention of New York had adopted the Const.i.tution, but after a most bitter fight, and by a majority of only three votes, and only in consequence of the pledge that every possible effort should be made to obtain speedily those great amendments that were at last called for by a determined public demand. One of the efforts contemplated by the New York convention took the form of a circular letter to the governors of the several States, urging almost pathetically that "effectual measures be immediately taken for calling a convention" to propose those amendments which are necessary for allaying "the apprehensions and discontents" then so prevalent.[402]

This circular letter "rekindled," as Madison then wrote to Jefferson, "an ardor among the opponents of the federal Const.i.tution for an immediate revision of it by another general convention, ... Mr. Henry and his friends in Virginia enter with great zeal into the scheme."[403] In a letter written by Washington, nearly a month before the meeting of the legislature, it is plainly indicated that his mind was then grievously burdened by the anxieties of the situation, and that he was disposed to put the very worst construction upon the expected conduct of Patrick Henry and his party in the approaching session:--

"Their expedient will now probably be an attempt to procure the election of so many of their own junto under the new government, as, by the introduction of local and embarra.s.sing disputes, to impede or frustrate its operation.... I a.s.sure you I am under painful apprehensions from the single circ.u.mstance of Mr. H. having the whole game to play in the a.s.sembly of this State; and the effect it may have in others should be counteracted if possible."[404]

No sooner had the a.s.sembly met, than Patrick Henry's ascendency became apparent. His sway over that body was such that it was described as "omnipotent." And by the time the session had been in progress not quite a month, Washington informed Madison that "the accounts from Richmond" were "very unpropitious to federal measures." "In one word,"

he added, "it is said that the edicts of Mr. H. are enregistered with less opposition in the Virginia a.s.sembly than those of the grand monarch by his parliaments. He has only to say, Let this be law, and it is law."[405] Within ten days from the opening of the session, the House showed its sensitive response to Patrick Henry's leadership by adopting a series of resolutions, the chief purpose of which was to ask Congress to call immediately a national convention for proposing to the States the required amendments. In the debate on the subject, he is said to have declared "that he should oppose every measure tending to the organization of the government, unless accompanied with measures for the amendment of the Const.i.tution."[406]

Some phrases in one of his resolutions were most offensive to those members of the House who had "befriended the new Const.i.tution," and who, by implication at least, were held forth as "betrayers of the dearest rights of the people." "If Mr. Henry pleases," so wrote a correspondent of Washington, "he will carry the resolution in its present terms, than which none, in my opinion, can be more exceptionable or inflammatory; though, as he is sometimes kind and condescending, he may perhaps be induced to alter it."[407]

In accordance with these resolutions, a formal application to Congress for a national convention was prepared by Patrick Henry, and adopted by the House on the 14th of November. Every word of that doc.u.ment deserves now to be read, as his own account of the spirit and purpose of a measure then and since then so profoundly and so cruelly misinterpreted:--

"The good people of this commonwealth, in convention a.s.sembled, having ratified the Const.i.tution submitted to their consideration, this legislature has, in conformity to that act, and the resolutions of the United States in Congress a.s.sembled to them transmitted, thought proper to make the arrangements that were _necessary_ for carrying it into effect. Having thus shown themselves obedient to the voice of their const.i.tuents, all America will find that, so far as it depends on them, that plan of government will be carried into immediate operation.

"But the sense of the people of Virginia would be but in part complied with, and but little regarded, if we went no further. In the very moment of adoption, and coeval with the ratification of the new plan of government, the general voice of the convention of this State pointed to objects no less interesting to the people we represent, and equally ent.i.tled to your attention. At the same time that, from motives of affection for our sister States, the convention yielded their a.s.sent to the ratification, they gave the most unequivocal proofs that they dreaded its operation under the present form.

"In acceding to a government under this impression, painful must have been the prospect, had they not derived consolation from a full expectation of its imperfections being speedily amended. In this resource, therefore, they placed their confidence,--a confidence that will continue to support them whilst they have reason to believe they have not calculated upon it in vain.

"In making known to you the objections of the people of this Commonwealth to the new plan of government, we deem it unnecessary to enter into a particular detail of its defects, which they consider as involving all the great and unalienable rights of freemen: for their sense on this subject, we refer you to the proceedings of their late convention, and the sense of this General a.s.sembly, as expressed in their resolutions of the day of .

"We think proper, however, to declare that in our opinion, as those objections were not founded in speculative theory, but deduced from principles which have been established by the melancholy example of other nations, in different ages, so they will never be removed until the cause itself shall cease to exist. The sooner, therefore, the public apprehensions are quieted, and the government is possessed of the confidence of the people, the more salutary will be its operations, and the longer its duration.

"The cause of amendments we consider as a common cause; and since concessions have been made from political motives, which we conceive may endanger the republic, we trust that a commendable zeal will be shown for obtaining those provisions which, experience has taught us, are necessary to secure from danger the unalienable rights of human nature.

"The anxiety with which our countrymen press for the accomplishment of this important end, will ill admit of delay. The slow forms of congressional discussion and recommendation, if indeed they should ever agree to any change, would, we fear, be less certain of success. Happily for their wishes, the Const.i.tution hath presented an alternative, by admitting the submission to a convention of the States. To this, therefore, we resort, as the source from whence they are to derive relief from their present apprehensions. We do, therefore, in behalf of our const.i.tuents, in the most earnest and solemn manner, make this application to Congress, that a convention be immediately called, of deputies from the several States, with full power to take into their consideration the defects of this Const.i.tution, that have been suggested by the state conventions, and report such amendments thereto, as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity the great and unalienable rights of mankind."[408]

Such was the purpose, such was the temper, of Virginia's appeal, addressed to Congress, and written by Patrick Henry, on behalf of immediate measures for curing the supposed defects of the Const.i.tution. Was it not likely that this appeal would be granted? One grave doubt haunted the mind of Patrick Henry. If, in the elections for senators and representatives then about to occur in the several States, very great care was not taken, it might easily happen that a majority of the members of Congress would be composed of men who would obstruct, and perhaps entirely defeat, the desired amendments. With the view of doing his part towards the prevention of such a result, he determined that both the senators from Virginia, and as many as possible of its representatives, should be persons who could be trusted to help, and not to hinder, the great project.

Accordingly, when the day came for the election of senators by the a.s.sembly of Virginia, he just stood up in his place and named "Richard Henry Lee and William Grayson, Esquires," as the two men who ought to be elected as senators; and, furthermore, he named James Madison as the one man who ought not to be elected as senator. Whereupon the vote was taken; "and after some time," as the journal expresses it, the committee to examine the ballot-boxes "returned into the House, and reported that they had ... found a majority of votes in favor of Richard Henry Lee and William Grayson, Esquires."[409] On the 8th of December, 1788, just one month afterward, Madison himself, in a letter to Jefferson, thus alluded to the incident: "They made me a candidate for the Senate, for which I had not allotted my pretensions. The attempt was defeated by Mr. Henry, who is omnipotent in the present legislature, and who added to the expedients common on such occasions a public philippic against my federal principles."[410]

Virginia's delegation in the Senate was thus made secure. How about her delegation in the lower house? That, also, was an affair to be sharply looked to. Above all things, James Madison, as the supposed foe of amendments, was to be prevented, if possible, from winning an election. Therefore the committee of the House of Delegates, which was appointed for the very purpose, among other things, of dividing the State into its ten congressional districts, so carved out those districts as to promote the election of the friends of the good cause, and especially to secure, as was hoped, the defeat of its great enemy.

Of this committee Patrick Henry was not a member; but as a majority of its members were known to be his devoted followers, very naturally upon him, at the time, was laid the burden of the blame for practising this ign.o.ble device in politics,--a device which, when introduced into Ma.s.sachusetts several years afterward, also by a Revolutionary father, came to be christened with the satiric name of "gerrymandering." Surely it was a rare bit of luck, in the case of Patrick Henry, that the wits of Virginia did not antic.i.p.ate the wits of Ma.s.sachusetts by describing this trick as "henrymandering;" and that he thus narrowly escaped the ugly immortality of having his name handed down from age to age in the coinage of a base word which should designate a base thing,--one of the favorite, shabby manoeuvres of less scrupulous American politicians.[411]

Thus, however, within four weeks from the opening of the session, he had succeeded in pressing through the legislature, in the exact form he wished, all these measures for giving effect to Virginia's demand upon Congress for amendments. This being accomplished, he withdrew from the service of the House for the remainder of the session, probably on account of the great urgency of his professional engagements at that time. The journal of the House affords us no trace of his presence there after the 18th of November; and although the legislature continued in session until the 13th of December, its business did not digress beyond local topics. To all these facts, rather bitter allusion is made in a letter to the governor of New Hampshire, written from Mount Vernon, on the 31st of January, 1789, by the private secretary of Washington, Tobias Lear, who thus reflected, no doubt, the mood of his chief:--

"Mr. Henry, the leader of the opposition in this State, finding himself beaten off the ground by fair argument in the state convention, and outnumbered upon the important question, collected his whole strength, and pointed his whole force against the government, in the a.s.sembly. He here met with but a feeble opposition.... He led on his almost unresisted phalanx, and planted the standard of hostility upon the very battlements of federalism. In plain English, he ruled a majority of the a.s.sembly; and his edicts were registered by that body with less opposition than those of the Grand Monarque have met with from his parliaments. He chose the two senators.... He divided the State into districts, ... taking care to arrange matters so as to have the county, of which Mr. Madison is an inhabitant, thrown into a district of which a majority were supposed to be unfriendly to the government, and by that means exclude him from the representative body in Congress. He wrote the answer to Governor Clinton's letter, and likewise the circular letter to the executives of the several States....

And after he had settled everything relative to the government wholly, I suppose, to his satisfaction, he mounted his horse and rode home, leaving the little business of the State to be done by anybody who chose to give themselves the trouble of attending to it."[412]

How great was the effect of these strategic measures, forced by Patrick Henry through the legislature of Virginia in the autumn of 1788, was not apparent, of course, until after the organization of the first Congress of the United States, in the spring of 1789. Not until the 5th of May could time be found by that body for paying the least attention to the subject of amendments. On that day Theodoric Bland, from Virginia, presented to the House of Representatives the solemn application of his State for a new convention; and, after some discussion, this doc.u.ment was entered on the journals of the House.[413] The subject was then dropped until the 8th of June, when Madison, who had been elected to Congress in spite of Patrick Henry, and who had good reason to know how dangerous it would be for Congress to trifle with the popular demand for amendments, succeeded, against much opposition, in getting the House to devote that day to a preliminary discussion of the business. It was again laid aside for nearly six weeks, and again got a slight hearing on the 21st of July.

On the 13th of August it was once more brought to the reluctant attention of the House, and then proved the occasion of a debate which lasted until the 24th of that month, when the House finished its work on the subject, and sent up to the Senate seventeen articles of amendment. Only twelve of these articles succeeded in pa.s.sing the Senate; and of these twelve, only ten received from the States that approval which was necessary to their ratification. This was obtained on the 15th of December, 1791.

The course thus taken by Congress, in itself proposing amendments, was not at the time pleasing to the chiefs of that party which, in the several States, had been clamorous for amendments.[414] These men, desiring more radical changes in the Const.i.tution than could be expected from Congress, had set their hearts on a new convention,--which, undoubtedly, had it been called, would have reconstructed, from top to bottom, the work done by the convention of 1787. Yet it should be noticed that the ten amendments, thus obtained under the initiative of Congress, embodied "nearly every material change suggested by Virginia;"[415] and that it was distinctly due, in no small degree, to the bitter and implacable urgency of the popular feeling in Virginia, under the stimulus of Patrick Henry's leadership, that Congress was induced by Madison to pay any attention to the subject. In the matter of amendments, therefore, Patrick Henry and his party did not get all that they demanded, nor in the way that they demanded; but even so much as they did get, they would not then have got at all, had they not demanded more, and demanded more, also, through the channel of a new convention, the dread of which, it is evident, drove Madison and his brethren in Congress into the prompt concession of amendments which they themselves did not care for. Those amendments were really a tub to the whale; but then that tub would not have been thrown overboard at all, had not the whale been there, and very angry, and altogether too troublesome with his foam-compelling tail, and with that huge head of his which could batter as well as spout.