Finally, on the 25th of March Madison wrote to Randolph, evidently in reply to the information given by the latter on the 1st of the month: "The refusal of Mr. Henry to join in the task of revising the Confederation is ominous; and the more so, I fear, if he means to be governed by the event which you conjecture."[361]

That Patrick Henry did not attend the great convention, everybody knows; but the whole meaning of his refusal to do so, everybody may now understand somewhat more clearly, perhaps, than before.

FOOTNOTES:

[341] MS.

[342] MS.

[343] Hening, xi. 525-526.

[344] MS.

[345] Sparks, Corr. Rev. iv. 93-96. See, also, Washington's letter to Henry, for Nov. 30, 1785, in Writings of W. xii. 277-278.

[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 CONSTITUTION

The great convention at Philadelphia, after a session of four months, came to the end of its noble 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 Constitution 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 Constitution, 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 Constitution. 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 Constitution 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 Assembly, 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 Constitution, 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 circumstances, 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 attitude of Patrick Henry was then removed. After mentioning that a majority of the people of Virginia seemed to be in favor of the Constitution, 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 Constitution. 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 Constitution. 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 Constitution 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 Constitution, 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 canvass against the Constitution:—

"Before the Constitution 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 constituents, 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 assembled 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 assembly-room in the city.

Eight States had already adopted the Constitution. 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 classes, 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 Constitution. Such was not the case in Virginia. Of the conservative classes throughout that State, quite as many were against the new Constitution as were in favor of it. Of the four distinguished citizens who had been its governors, since Virginia had assumed 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 Constitution, 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 attitude 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 Constitution."[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 document.

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 assisted, 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 Constitution 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 acumen, 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 constitute 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 Constitution 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 Constitution, "a modern scepticism concerning Patrick Henry's abilities; but I cannot share it.... The manner in which he carried on the opposition to the Constitution 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 Constitution?

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 Constitution. 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 Constitution 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 Constitution embody such amendments? On the contrary, that Constitution, 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 Constitution 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 Constitution 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 assertion, 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]

Then, in addition to his objections to the general character of the Constitution, namely, as a consolidated government, unrestrained by an express guarantee of rights, he applied his criticisms in great detail, and with merciless rigor, to each department of the proposed government,—the legislative, the executive, and the judicial; and with respect to each one of these he insisted that its intended functions were such as to inspire distrust and alarm. Of course, we cannot here follow this fierce critic of the Constitution into all the detail of his criticisms; but, as a single example, we may cite a portion of his assault upon the executive department,—an assault, as will be seen, far better suited to the political apprehensions of his own time than of ours:—

"The Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy. And does not this raise indignation in the breast of every true American? Your president may easily become king.... Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men. And, sir, would not all the world, from the eastern to the western hemispheres, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty.... If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands; and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design. And, sir, will the American spirit solely relieve you when this happens? I would rather infinitely—and I am sure most of this convention are of the same opinion—have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.... Will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your president! we shall have a king. The army will salute him monarch. Your militia will leave you, and assist in making him king, and fight against you. And what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?"[383]

Without reproducing here, in further detail, Patrick Henry's objections to the new Constitution, it may now be stated that they all sprang from a single idea, and all revolved about that idea, namely, that the new plan of government, as it then stood, seriously endangered the rights and liberties of the people of the several States. And in holding this opinion he was not at all peculiar. Very many of the ablest and noblest statesmen of the time shared it with him. Not to name again his chief associates in Virginia, nor to cite the language of such men as Burke and Rawlins Lowndes, of South Carolina; as Timothy Bloodworth, of North Carolina; as Samuel Chase and Luther Martin, of Maryland; as George Clinton, of New York; as Samuel Adams, John Hancock, and Elbridge Gerry, of Massachusetts; as Joshua Atherton, of New Hampshire, it may sufficiently put us into the tone of contemporary opinion upon the subject, to recall certain grave words of Jefferson, who, watching the whole scene from the calm distance of Paris, thus wrote on the 2d of February, 1788, to an American friend:—

"I own it astonishes me to find such a change wrought in the opinions of our countrymen since I left them, as that three fourths of them should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. That is a degeneracy in the principles of liberty, to which I had given four centuries, instead of four years."[384]

Holding such objections to the proposed Constitution, what were Patrick Henry and his associates in the Virginia convention to do? Were they to reject the measure outright? Admitting that it had some good features, they yet thought that the best course to be taken by Virginia would be to remit the whole subject to a new convention of the States,—a convention which, being summoned after a year or more of intense and universal discussion, would thus represent the later, the more definite, and the more enlightened desires of the American people. But despairing of this, Patrick Henry and his friends concentrated all their forces upon this single and clear line of policy: so to press their objections to the Constitution as to induce the convention, not to reject it, but to postpone its adoption until they could refer to the other States in the American confederacy the following momentous proposition, namely, "a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the undeniable rights of the people, together with amendments to the most exceptionable parts of the said constitution of government."[385]

Such, then, was the real question over which in that assemblage, from the first day to the last, the battle raged. The result of the battle was reached on Wednesday, the 25th of June; and that result was a victory for immediate adoption, but by a majority of only ten votes, instead of the fifty votes that were claimed for it at the beginning of the session. Moreover, even that small majority for immediate adoption was obtained only by the help, first, of a preamble solemnly affirming it to be the understanding of Virginia in this act that it retained every power not expressly granted to the general government; and, secondly, of a subsidiary resolution promising to recommend to Congress "whatsoever amendments may be deemed necessary."

Just before the decisive question was put, Patrick Henry, knowing that the result would be against him, and knowing, also, from the angry things uttered within that House and outside of it, that much solicitude was abroad respecting the course likely to be taken by the defeated party, then and there spoke these noble words:—

"I beg pardon of this House for having taken up more time than came to my share, and I thank them for the patience and polite attention with which I have been heard. If I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. My head, my hand, and my heart shall be at liberty to retrieve the loss of liberty, and remove the defects of that system in a constitutional way. I wish not to go to violence, but will wait, with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the Revolution yet lost. I shall therefore patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness of the people."[386]

Those words of the great Virginian leader proved to be a message of reassurance to many an anxious citizen, in many a State,—not least so to that great citizen who, from the slopes of Mount Vernon, was then watching, night and day, for signs of some abatement in the storm of civil discord. Those words, too, have, in our time, won for the orator who spoke them the deliberate, and the almost lyrical, applause of the greatest historian who has yet laid hand on the story of the Constitution: "Henry showed his genial nature, free from all malignity. He was like a billow of the ocean on the first bright day after the storm, dashing itself against the rocky cliff, and then, sparkling with light, retreating to its home."[387]

Long after the practical effects of the Virginia convention of 1788 had been merged in the general political life of the country, that convention was still proudly remembered for the magnificent exertions of intellectual power, and particularly of eloquence, which it had called forth. So lately as the year 1857, there was still living a man who, in his youth, had often looked in upon that famous convention, and whose enthusiasm, in recalling its great scenes, was not to be chilled even by the frosts of his ninety winters:—

"The impressions made by the powerful arguments of Madison and the overwhelming eloquence of Henry can never fade from my mind. I thought them almost supernatural. They seemed raised up by Providence, each in his way, to produce great results: the one by his grave, dignified, and irresistible arguments to convince and enlighten mankind; the other, by his brilliant and enrapturing eloquence to lead whithersoever he would."[388]

Those who had heard Patrick Henry on the other great occasions of his career were ready to say that his eloquence in the convention of 1788 was, upon the whole, fully equal to anything ever exhibited by him in any other place. The official reports of his speeches in that assemblage were always declared to be inferior in "strength and beauty" to those actually made by him there.[389] "In forming an estimate of his eloquence," says one gentleman who there heard him, "no reliance can be placed on the printed speeches. No reporter whatever could take down what he actually said; and if he could, it would fall far short of the original."[390]

In his arguments against the Constitution Patrick Henry confined himself to no systematic order. The convention had indeed resolved that the document should be discussed, clause by clause, in a regular manner; but in spite of the complaints and reproaches of his antagonists, he continually broke over all barriers, and delivered his "multiform and protean attacks" in such order as suited the workings of his own mind.

In the course of that long and eager controversy, he had several passages of sharp personal collision with his opponents, particularly with Governor Randolph, whose vacillating course respecting the Constitution had left him exposed to the most galling comments, and who on one occasion, in his anguish, turned upon Patrick Henry with the exclamation: "I find myself attacked in the most illiberal manner by the honorable gentleman. I disdain his aspersions and his insinuations. His asperity is warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, let it fall, like Lucifer, never to rise again."[391] Like all very eloquent men, he was taunted, of course, for having more eloquence than logic; for "his declamatory talents;" for his "vague discourses and mere sports of fancy;" for discarding "solid argument;" and for "throwing those bolts" which he had "so peculiar a dexterity at discharging."[392] On one occasion, old General Adam Stephen tried to burlesque the orator's manner of speech;[393] on another occasion, that same petulant warrior bluntly told Patrick that if he did "not like this government," he might "go and live among the Indians," and even offered to facilitate the orator's self-expatriation among the savages: "I know of several nations that live very happily; and I can furnish him with a vocabulary of their language."[394]

Knowing, as he did, every passion and prejudice of his audience, he adopted, it appears, almost every conceivable method of appeal. "The variety of arguments," writes one witness, "which Mr. Henry generally presented in his speeches, addressed to the capacities, prejudices, and individual interests of his hearers, made his speeches very unequal. He rarely made in that convention a speech which Quintilian would have approved. If he soared at times, like the eagle, and seemed like the bird of Jove to be armed with thunder, he did not disdain to stoop like the hawk to seize his prey,—but the instant that he had done it, rose in pursuit of another quarry."[395]

Perhaps the most wonderful example of his eloquence, if we may judge by contemporary descriptions, was that connected with the famous scene of the thunder-storm, on Tuesday, the 24th of June, only one day before the decisive vote was taken. The orator, it seems, had gathered up all his forces for what might prove to be his last appeal against immediate adoption, and was portraying the disasters which the new system of government, unless amended, was to bring upon his countrymen, and upon all mankind: "I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere." Thus far the stenographer had proceeded, when he suddenly stopped, and placed within brackets the following note: "[Here a violent storm arose, which put the House in such disorder, that Mr. Henry was obliged to conclude.]"[396] But the scene which is thus quietly despatched by the official reporter of the convention was again and again described, by many who were witnesses of it, as something most sublime and even appalling. After having delineated with overpowering vividness the calamities which were likely to befall mankind from their adoption of the proposed frame of government, the orator, it is said, as if wielding an enchanter's wand, suddenly enlarged the arena of the debate and the number of his auditors; for, peering beyond the veil which shuts in mortal sight, and pointing "to those celestial beings who were hovering over the scene," he addressed to them "an invocation that made every nerve shudder with supernatural horror, when, lo! a storm at that instant rose, which shook the whole building, and the spirits whom he had called seemed to have come at his bidding. Nor did his eloquence, or the storm, immediately cease; but availing himself of the incident, with a master's art, he seemed to mix in the fight of his ethereal auxiliaries, and, 'rising on the wings of the tempest, to seize upon the artillery of heaven, and direct its fiercest thunders against the heads of his adversaries.' The scene became insupportable; and the House rose without the formality of adjournment, the members rushing from their seats with precipitation and confusion."[397]

FOOTNOTES:

[362] Writings of Washington, ix. 265-266.

[363] MS.

[364] Writings of Washington, ix. 273.

[365] Madison, Letters, etc. i. 356.

[366] Ibid. i. 364-365.

[367] Madison, Letters, etc. i. 378.

[368] Ibid. i. 387.

[369] Madison, Letters, i. 388.

[370] Bancroft, Hist. Const., ii. 465.

[371] Writings of Washington, ix. 356.

[372] Rives, Life of Madison, ii. 544, note.

[373] Rives, Life of Madison, ii. 541.

[374] Hist. Mag. for 1873, 274.

[375] Elliot, Debates, i. 491; v. 502, 534-535.

[376] Elliot, Debates, iii.

[377] Curtis, Hist. Const. ii. 561, note.

[378] Writings of Washington, ix. 266, note.

[379] Elliot, Debates, iii. 161, 57, 63.

[380] Elliot, Debates, iii. 23, 52, 44, 156.

[381] Elliot, Debates, iii. 150, 462, 445-446.

[382] Elliot, Debates, iii. 149-150.

[383] Elliot, Debates, iii. 58-60.

[384] Bancroft, Hist. Const. ii. 459-460.

[385] Elliot, Debates, iii. 653.

[386] Elliot, Debates, iii. 652.

[387] Bancroft, Hist. Const. ii. 316-317.

[388] Rives, Life of Madison, ii. 610.

[389] Kennedy, Life of Wirt, i. 345.

[390] Spencer Roane, MS.

[391] Elliot, Debates, iii. 187.

[392] Ibid. iii. 406, 104, 248, 177.

[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 Constitution, the fight was over; but on the question of amending that Constitution, now that it had been adopted, the fight, of course, was only just begun.

For how could this new Constitution 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 Constitution 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 endorsement, unless that proposition be really impelled by a public demand not only very energetic and persistent, but well-nigh universal. Indeed, the constitutional provision for amendments seemed, at that time, to many, to be almost a constitutional prohibition of amendments.

It was, in part, for this very reason that Patrick Henry had urged that those amendments of the Constitution 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 associates walked away from the convention wherein, on this very proposition, they had just been voted down, how did the case stand? The Constitution, now become the supreme law of the land, was a Constitution 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 Constitution amended before adoption. They had failed. They must now fight hard to get it amended after adoption. Disastrous would it be, to assume 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 Constitution, 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 assuming 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 assimilate 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 assure 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 associations 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 assuring 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 constitutional 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 Constitution 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 constitutional 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 Massachusetts, 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 Constitution in its present form, and shall give it every constitutional 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 assembled for its autumnal session. Meantime, however, the convention of New York had adopted the Constitution, 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 Constitution 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 embarrassing disputes, to impede or frustrate its operation.... I assure you I am under painful apprehensions from the single circumstance of Mr. H. having the whole game to play in the Assembly of this State; and the effect it may have in others should be counteracted if possible."[404]

No sooner had the Assembly 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 Assembly 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 Constitution."[406]

Some phrases in one of his resolutions were most offensive to those members of the House who had "befriended the new Constitution," 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 document 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 assembled, having ratified the Constitution submitted to their consideration, this legislature has, in conformity to that act, and the resolutions of the United States in Congress assembled 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 constituents, 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 entitled to your attention. At the same time that, from motives of affection for our sister States, the convention yielded their assent 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 Assembly, 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 Constitution 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 constituents, 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 Constitution, 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 Constitution. 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 Assembly 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 ignoble device in politics,—a device which, when introduced into Massachusetts 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 anticipate the wits of Massachusetts 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 Assembly. 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 Assembly; 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 document 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 passing 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 Constitution 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.

FOOTNOTES:

[398] Leake, Life of Gen. John Lamb, 307-308.

[399] Madison, Letters, etc. i. 402.

[400] Works of Hamilton, i. 463.

[401] Writings of Washington, ix. 392.

[402] Elliot, Debates, ii. 414.

[403] Madison, Letters, etc. i. 418.

[404] Writings of Washington, ix. 433.

[405] Bancroft, Hist. Const. ii. 483.

[406] Corr. Rev. iv. 240-241.

[407] Ibid. iv. 241.

[408] Jour. Va. House Del. 42-43.

[409] Jour. Va. House Del. 32.

[410] Madison, Letters, etc., i. 443-444.

[411] For contemporary allusions to this first example of gerrymandering, see Writings of Washington, ix. 446-447; Writings of Jefferson, ii. 574; Rives, Life of Madison, ii. 653-655; Bancroft, Hist. Const. ii. 485.

[412] Bancroft, Hist. Const. ii. 488-489.

[413] Gales, Debates, i. 258-261.

[414] Marshall, Life of Washington, v. 209-210; Story, Const. i. 211.

[415] Howison, Hist. Va. ii. 333.



CHAPTER XX

LAST LABORS AT THE BAR

The incidents embraced within the last three chapters cover the period from 1786 to 1791, and have been thus narrated by themselves for the purpose of exhibiting as distinctly as possible, and in unbroken sequence, Patrick Henry's relations to each succeeding phase of that immense national movement which produced the American Constitution, with its first ten amendments.

During those same fervid years, however, in which he was devoting, as it might seem, every power of body and mind to his great labors as a party leader, and as a critic and moulder of the new Constitution, he had resumed, and he was sturdily carrying forward, most exacting labors in the practice of the law.

Late in the year 1786, as will be remembered, being then poor and in debt, he declined another election to the governorship, and set himself to the task of repairing his private fortunes, so sadly fallen to decay under the noble neglect imposed by his long service of the public. One of his kinsmen has left on record a pleasant anecdote to the effect that the orator happened to mention at that time to a friend how anxious he was under the great burden of his debts. "Go back to the bar," said his friend; "your tongue will soon pay your debts. If you will promise to go, I will give you a retaining fee on the spot."[416] This course, in fact, he had already determined to take; and thus at the age of fifty, at no time robust in health, and at that time grown prematurely old under the storm and stress of all those unquiet years, he again buckled on his professional armor, rusty from long disuse, and pluckily began his life over again, in the hope of making some provision for his own declining days, as well as for the honor and welfare of his great brood of children and grandchildren. To this task, accordingly, he then bent himself, with a grim wilfulness that would not yield either to bodily weakness, or to the attractions or the distractions of politics. It is delightful to be permitted to add, that his energy was abundantly rewarded; and that in exactly eight years thereafter, namely in 1794, he was able to retire, in comfort and wealth, from all public and professional employments of every sort.

Of course the mere announcement, in 1786, that Patrick Henry was then ready once more to receive clients, was enough to excite the attention of all persons in Virginia who might have important interests in litigation. His great renown throughout the country, his high personal character, his overwhelming gifts in argument, his incomparable gifts in persuasion, were such as to ensure an almost dominant advantage to any cause which he should espouse before any tribunal. Confining himself, therefore, to his function as an advocate, and taking only such cases as were worth his attention, he was immediately called to appear in the courts in all parts of the State.

It is not necessary for us to try to follow this veteran and brilliant advocate in his triumphal progress from one court-house to another, or to give the detail of the innumerable causes in which he was engaged during these last eight years of his practice at the bar. Of all the causes, however, in which he ever took part as a lawyer, in any period of his career, probably the most difficult and important, in a legal aspect, was the one commonly referred to as that of the British debts, argued by him in the Circuit Court of the United States at Richmond, first in 1791, and again, in the same place, in 1793.[417]

A glance at the origin of this famous cause will help us the better to understand the significance of his relation to it. By the treaty with Great Britain in 1783, British subjects were empowered "to recover debts previously contracted to them by our citizens, notwithstanding a payment of the debt into a state treasury had been made during the war, under the authority of a state law of sequestration." According to this provision a British subject, one William Jones, brought an action of debt in the federal court at Richmond, against a citizen of Virginia, Thomas Walker, on a bond dated May, 1772. The real question was "whether payment of a debt due before the war of the Revolution, from a citizen of Virginia to British subjects, into the loan office of Virginia, pursuant to a law of that State, discharged the debtor."

The case, as will readily be seen, involved many subtle and difficult points of law, municipal, national, and international; and the defence was contained in the following five pleas: (1.) That of payment, generally; (2.) That of the Virginia act of sequestration, October 20, 1777; (3.) That of the Virginia act of forfeiture, May 3, 1779; (4.) That of British violations of the treaty of 1783; (5.) That of the necessary annulment of the debt, in consequence of the dissolution of the co-allegiance of the two parties, on the declaration of independence.[418]

Some idea of the importance attached to the case may be inferred from the assertion of Wirt, that "the whole power of the bar of Virginia was embarked" in it; and that the "learning, argument, and eloquence" exhibited in the discussion were such "as to have placed that bar, in the estimation of the federal judges, ... above all others in the United States."[419] Associated with Patrick Henry, for the defendant, were John Marshall, Alexander Campbell, and James Innes.

For several weeks before the trial of this cause in 1791, Patrick Henry secluded himself from all other engagements, and settled down to intense study in the retirement of his home in the country. A grandson of the orator, Patrick Henry Fontaine, who was there as a student of the law, relates that he himself was sent off on a journey of sixty miles to procure a copy of Vattel's Law of Nations. From this and other works of international law, the old lawyer "made many quotations; and with the whole syllabus of notes and heads of arguments, he filled a manuscript volume more than an inch thick, and closely written; a book ... bound with leather, and convenient for carrying in his pocket. He had in his yard ... an office, built at some distance from his dwelling, and an avenue of fine black locusts shaded a walk in front of it.... He usually walked and meditated, when the weather permitted, in this shaded avenue.... For several days in succession, before his departure to Richmond to attend the court," the orator was seen "walking frequently in this avenue, with his note-book in his hand, which he often opened and read; and from his gestures, while promenading alone in the shade of the locusts," it was supposed that he was committing his speech to memory.[420] According to another account, so eager was his application to this labor that, in one stage of it, "he shut himself up in his office for three days, during which he did not see his family; his food was handed by a servant through the office door."[421] Of all this preparation, not unworthy to be called Demosthenic, the result was, if we may accept the opinion of one eminent lawyer, that Patrick Henry "came forth, on this occasion, a perfect master of every law, national and municipal, which touched the subject of investigation in the most distant point."[422]

It was on the 14th of November, 1791, that the cause came on to be argued in the court-house at Richmond, before Judges Johnson and Blair of the Supreme Court, and Judge Griffin of that district. The case of the plaintiff was opened by Mr. Counsellor Baker, whose argument lasted till the evening of that day. Patrick Henry was to begin his argument in reply the next morning.

"The legislature was then in session; but when eleven o'clock, the hour for the meeting of the court, arrived, the speaker found himself without a house to do business. All his authority and that of his sergeant at arms were unavailing to keep the members in their seats: every consideration of public duty yielded to the anxiety which they felt, in common with the rest of their fellow citizens, to hear this great man on this truly great and extensively interesting question. Accordingly, when the court was ready to proceed to business, the court-room of the capitol, large as it is, was insufficient to contain the vast concourse that was pressing to enter it. The portico, and the area in which the statue of Washington stands, were filled with a disappointed crowd, who nevertheless maintained their stand without. In the court-room itself, the judges, through condescension to the public anxiety, relaxed the rigor of respect which they were in the habit of exacting, and permitted the vacant seats of the bench, and even the windows behind it, to be occupied by the impatient multitude. The noise and tumult occasioned by seeking a more favorable station was at length hushed, and the profound silence which reigned within the room gave notice to those without that the orator had risen, or was on the point of rising. Every eye in front of the bar was riveted upon him with the most eager attention; and so still and deep was the silence that every one might hear the throbbing of his own heart. Mr. Henry, however, appeared wholly unconscious that all this preparation was on his account, and rose with as much simplicity and composure as if the occasion had been one of ordinary occurrence.... It may give the reader some idea of the amplitude of the argument, when he is told that Mr. Henry was engaged three days successively in its delivery; and some faint conception of the enchantment which he threw over it, when he learns that although it turned entirely on questions of law, yet the audience, mixed as it was, seemed so far from being wearied, that they followed him throughout with increased enjoyment. The room continued full to the last; and such was 'the listening silence' with which he was heard, that not a syllable that he uttered is believed to have been lost. When he finally sat down, the concourse rose, with a general murmur of admiration; the scene resembled the breaking up and dispersion of a great theatrical assembly, which had been enjoying, for the first time, the exhibition of some new and splendid drama; the speaker of the House of Delegates was at length able to command a quorum for business; and every quarter of the city, and at length every part of the State, was filled with the echoes of Mr. Henry's eloquent speech."[423]

In the spring of 1793 this cause was argued a second time, before the same district judge, and, in addition, before Mr. Chief Justice Jay, and Mr. Justice Iredell of the Supreme Court. On this occasion, apparently, there was the same eagerness to hear Patrick Henry as before,—an eagerness which was shared in by the two visiting judges, as is indicated in part by a letter from Judge Iredell, who, on the 27th of May, thus wrote to his wife: "We began on the great British causes the second day of the court, and are now in the midst of them. The great Patrick Henry is to speak to-day."[424] Among the throng of people who then poured into the court-room was John Randolph of Roanoke, then a stripling of twenty years, who, having got a position very close to the judges, was made aware of their conversation with one another as the case proceeded. He describes the orator as not expecting to speak at that time; "as old, very much wrapped up, and resting his head on the bar." Meanwhile the chief justice, who, in earlier days, had often heard Henry in the Continental Congress, told Iredell that that feeble old gentleman in mufflers, with his head bowed wearily down upon the bar, was "the greatest of orators." "Iredell doubted it; and, becoming impatient to hear him, they requested him to proceed with his argument, before he had intended to speak.... As he arose, he began to complain that it was a hardship, too great, to put the laboring oar into the hands of a decrepit old man, trembling, with one foot in the grave, weak in his best days, and far inferior to the able associate by him." Randolph then gives an outline of his progress through the earlier and somewhat tentative stages of his speech, comparing his movement to the exercise "of a first-rate, four-mile race-horse, sometimes displaying his whole power and speed for a few leaps, and then taking up again." "At last," according to Randolph, the orator "got up to full speed; and took a rapid view of what England had done, when she had been successful in arms; and what would have been our fate, had we been unsuccessful. The color began to come and go in the face of the chief justice; while Iredell sat with his mouth and eyes stretched open, in perfect wonder. Finally, Henry arrived at his utmost height and grandeur. He raised his hands in one of his grand and solemn pauses.... There was a tumultuous burst of applause; and Judge Iredell exclaimed, 'Gracious God! he is an orator indeed!'"[425] It is said, also, by another witness, that Henry happened that day to wear on his finger a diamond ring; and that in the midst of the supreme splendor of his eloquence, a distinguished English visitor who had been given a seat on the bench, said with significant emphasis to one of the judges, "The diamond is blazing!"[426]

As examples of forensic eloquence, on a great subject, before a great and a fit assemblage, his several speeches in the case of the British debts were, according to all the testimony, of the highest order of merit. What they were as examples of legal learning and of legal argumentation, may be left for every lawyer to judge for himself, by reading, if he so pleases, the copious extracts which have been preserved from the stenographic reports of these speeches, as taken by Robertson. Even from that point of view, they appear not to have suffered by comparison with the efforts made, in that cause, on the same side, by John Marshall himself. No inconsiderable portion of his auditors were members of the bar; and those keen and competent critics are said to have acknowledged themselves as impressed "not less by the matter than the manner" of his speeches.[427] Moreover, though not expressly mentioned, Patrick Henry's argument is pointedly referred to in the high compliment pronounced by Judge Iredell, when giving his opinion in this case:—

"The cause has been spoken to, at the bar, with a degree of ability equal to any occasion.... I shall, as long as I live, remember with pleasure and respect the arguments which I have heard in this case. They have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything I have ever witnessed; and some of them have been adorned with a splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has been instructed."[428]

It will be readily understood, however, that while Patrick Henry's practice included important causes turning, like the one just described, on propositions of law, and argued by him before the highest tribunals, the larger part of the practice to be had in Virginia at that time must have been in actions tried before juries, in which his success was chiefly due to his amazing endowments of sympathy, imagination, tact, and eloquence. The testimony of contemporary witnesses respecting his power in this direction is most abundant, and also most interesting; and, for obvious reasons, such portions of it as are now to be reproduced should be given in the very language of the persons who thus heard him, criticised him, and made deliberate report concerning him.

First of all, in the way of preliminary analysis of Henry's genius and methods as an advocate before juries, may be cited a few sentences of Wirt, who, indeed, never heard him, but who, being himself a very gifted and a very ambitious advocate, eagerly collected and keenly scanned the accounts of many who had heard him:—

"He adapted himself, without effort, to the character of the cause; seized with the quickness of intuition its defensible point, and never permitted the jury to lose sight of it. Sir Joshua Reynolds has said of Titian, that, by a few strokes of his pencil, he knew how to mark the image and character of whatever object he attempted; and produced by this means a truer representation than any of his predecessors, who finished every hair. In like manner Mr. Henry, by a few master-strokes upon the evidence, could in general stamp upon the cause whatever image or character he pleased; and convert it into tragedy or comedy, at his sovereign will, and with a power which no efforts of his adversary could counteract. He never wearied the jury by a dry and minute analysis of the evidence; he did not expend his strength in finishing the hairs; he produced all his high effect by those rare master-touches, and by the resistless skill with which, in a very few words, he could mould and color the prominent facts of a cause to his purpose. He had wonderful address, too, in leading off the minds of his hearers from the contemplation of unfavorable points, if at any time they were too stubborn to yield to his power of transformation.... It required a mind of uncommon vigilance, and most intractable temper, to resist this charm with which he decoyed away his hearers; it demanded a rapidity of penetration, which is rarely, if ever, to be found in the jury-box, to detect the intellectual juggle by which he spread his nets around them; it called for a stubbornness and obduracy of soul which does not exist, to sit unmoved under the pictures of horror or of pity which started from his canvas. They might resolve, if they pleased, to decide the cause against him, and to disregard everything which he could urge in the defence of his client. But it was all in vain. Some feint in an unexpected direction threw them off their guard, and they were gone; some happy phrase, burning from the soul; some image fresh from nature's mint, and bearing her own beautiful and genuine impress, struck them with delightful surprise, and melted them into conciliation; and conciliation towards Mr. Henry was victory inevitable. In short, he understood the human character so perfectly; knew so well all its strength and all its weaknesses, together with every path and by-way which winds around the citadel of the best fortified heart and mind, that he never failed to take them, either by stratagem or storm."[429]