There is no alternative between the adoption of it [the Constitution] and anarchy. (Washington.)I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. (Henry.)
There is no alternative between the adoption of it [the Constitution] and anarchy. (Washington.)
I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. (Henry.)
More, much more, went forward in the Virginia struggle than appeared upon the surface. Noble as was the epochal debate in Virginia's Constitutional Convention, it was not so influential on votes of the members as were other methods[1111]employed by both sides. Very practical politicians, indeed, were these contending moulders of destiny.
Having in mind the Pennsylvania storm; with the picture before them of the delicate and skillful piloting by which alone the Constitution had escaped the rocks in the tempestuous Massachusetts seas; with the hurricane gathering in New York and its low thunders heard even from States that had ratified—the Virginia Constitutionalists took no chances, neglected no precaution. Throughout the country the Constitutionalists were now acting with disciplined dispatch.
Intelligence of the New Hampshire Convention, of their success in which the Constitutionalists finally had made sure, was arranged to be carried by swift riders and relays of horses across country to Hamilton in New York; and "any expense which you may incur will be cheerfully repaid," Kingassured Langdon.[1112]As to Virginia, Hamilton wrote Madison to send news of "any decisivequestion ... if favorable ... by an express ... with pointed orders to make all possible diligence, by changing horses etc."; assuring Madison, as King did Langdon, that "all expense shall be thankfully and liberally paid."[1113]
The Constitutionalists, great and small, in other States were watching Virginia's Convention through the glasses of an infinite apprehension. "I fear that overwhelming torrent, Patrick Henry," General Knox confided to King.[1114]Even before Massachusetts had ratified, one Jeremiah Hill thought that "the fate of this Constitution and the political Salvation of the united States depend cheifly on the part that Virginia and this State [Massachusetts] take in the Matter."[1115]Hamilton's lieutenant, King, while in Boston helping the Constitutionalists there, wrote to Madison: "You can with difficulty conceive the real anxiety experienced in Massachusetts concerning your decision."[1116]"Our chance of success depends on you," was Hamilton's own despairing appeal to the then leader of the Southern Constitutionalists. "If you do well there is a gleam of hope; but certainly I think not otherwise."[1117]Theworried New York Constitutionalist commander was sure that Virginia would settle the fate of the proposed National Government. "God grant that Virginia may accede. The example will have a vast influence."[1118]
Virginia's importance justified the anxiety concerning her action. Not only was the Old Dominion preëminent in the part she had taken in the Revolution, and in the distinction of her sons like Henry, Jefferson, and Washington, whose names were better known in other States than those of many of their own most prominent men; but she also was the most important State in the Confederation in population and, at that time, in resources. "Her population," says Grigsby, "was over three fourths of all that of New England;... not far from double that of Pennsylvania;... or from three times that of New York ... over three fourths of all the population of the Southern States;... and more than a fifth of the population of the whole Union."[1119]
The Virginia Constitutionalists had chosen their candidates for the State Convention with painstaking care. Personal popularity, family influence, public reputation, business and financial power, and everything which might contribute to their strength with the people, had been delicately weighed. The people simply would not vote against such men as Pendleton, Wythe, and Carrington;[1120]and these andothers like them accordingly were selected by the Constitutionalists as candidates in places where the people, otherwise, would have chosen antagonists to the Constitution.
More than one fourth of the Virginia Convention of one hundred and seventy members had been soldiers in the Revolutionary War; and nearly all of them followed Washington in his desire for a strong National Government. Practically all of Virginia's officers were members of the Cincinnati; and these were a compact band of stern supporters of the "New Plan."[1121]Some of the members had been Tories, and these were stingingly lashed in debate by Mason; but they were strong in social position, wealth, and family connections, and all of them were for the Constitution.[1122]
No practical detail of election day had been overlooked by the Constitutionalists. Colonel William Moore wrote to Madison, before the election came off: "You know the disadvantage of being absent at elections.... I must therefore entreat and conjure you—nay, command you, if it were in my power—to be here."[1123]The Constitutionalists slipped in members wherever possible and by any device.
Particularly in Henrico County, where Richmond was situated, had conditions been sadly confused. Edmund Randolph, then Governor of the State, who next to Washington was Virginia's most conspicuous delegate to the Federal Convention, had refused to sign the Constitution and was, therefore, popularlysupposed to be against it. October 17, 1787, he wrote a letter to the Speaker of the House of Delegates explaining his reasons for dissent. He approved the main features of the proposed plan for a National Government but declared that it had fatal defects, should be amended before ratification, a new Federal Convention called to pass upon the amendments of the various States, and, thereafter, the Constitution as amended again submitted for ratification to State Conventions.[1124]Randolph, however, did not send this communication to the Speaker "lest in the diversity of opinion I should excite a contest unfavorable to that harmony with which I trust that great subject will be discussed."[1125]But it was privately printed in Richmond and Randolph sent a copy to Washington. On January 3, 1788, the letter was published in theVirginia Gazettetogether with other correspondence. In an additional paragraph, which does not appear in Randolph's letter as reproduced in Elliott, he said that he would "regulate himself by the spirit of America" and that he would do his best to amend the Constitution prior to ratification, but if he could not succeed he would accept the "New Plan" as it stood.[1126]But he had declared to Richard Henry Lee that "either a monarchy or aristocracy will be generated" by it.[1127]
Thus Randolph to all appearances occupied middle ground. But, publicly, he was in favor of making strenuous efforts to amend the Constitution as a condition of ratification, and of calling a second Federal Convention; and these were the means by which the Anti-Constitutionalists designed to accomplish the defeat of the "New Plan." The opponents of the proposed National Government worked hard with Randolph to strengthen his resolution and he gave them little cause to doubt their success.[1128]
But the Constitutionalists were also busy with the Governor and with greater effect. Washington wrote an adroit and persuasive letter designed to win him entirely over to a whole-hearted and unqualified advocacy of the Constitution. The question was, said Washington, the acceptance of the Constitution or "a dissolution of the Union."[1129]Madison,in a subtle mingling of flattery, argument, and insinuation, skillfully besought his "dear friend" Randolph to come out for the Constitution fully and without reserve. If only Randolph had stood for the Constitution, wrote Madison, "it would have given it a decided and unalterable preponderancy," and Henry would have been "baffled."
The New England opposition, Madison assured Randolph, was from "that part of the people who have a repugnance in general to good government ... a part of whom are known to aim at confusion and are suspected of wishing a reversal of the Revolution.... Nothing can be further from your [Randolph's] views than the principles of the different sets of men who have carried on their opposition under the respectability of your name."[1130]
Randolph finally abandoned all opposition and resolved to support the Constitution even to the point of resisting the very plan he had himself proposed and insisted upon; but nobody, with the possible exception of Washington, was informed of this Constitutionalist master-stroke until the Convention met;[1131]and, if Washington knew, he kept the secret. Thus, although the Constitutionalists were not yet sure of Randolph, they put up no candidate against him in Henrico County, where the people were very much opposed to the Constitution. Tohave done so would have been useless in any event; for Randolph could have been elected almost unanimously if his hostility to the proposed Government had been more vigorous, so decided were the people's dislike and distrust of it, and so great, as yet, the Governor's popularity. He wrote Madison a day or two before the election that nothing but his personal popularity "could send me; my politicks not being sufficiently strenuous against the Constitution."[1132]The people chose their beloved young Governor, never imagining that he would appear as the leading champion of the Constitution on the Convention floor and actually oppose amending it before ratification.[1133]
But the people were not in the dark when they voted for the only candidate the Constitutionalists openly brought out in Henrico County. John Marshall was for the proposed National Government, outright and aboveboard. He was vastly concerned. We find him figuring out the result of the election in northern Virginia and concluding "that the question will be very nice."[1134]Marshall had been made the Constitutionalist candidate solely because of his personal popularity. As it was, even the people's confidence in him barely had saved Marshall.
"Marshall is in danger," wrote Randolph; "but F. [Dr. Foushee, the Anti-Constitutionalist candidate] is not popular enough on other scores to beelected, altho' he is perfectly a Henryite."[1135]Marshall admitted that the people who elected Randolph and himself were against the Constitution; and declared that he owed his own election to his individual strength with the people.[1136]Thus two strong champions of the Constitution had been secured from an Anti-Constitutionalist constituency; and these were only examples of other cases.
The Anti-Constitutionalists, too, straining every nerve to elect their men, resorted to all possible devices to arouse the suspicions, distrust, and fears of the people. "The opposition to it [the Constitution] ... is addressed more to the passions than to the reason," declared Washington.[1137]
Henry was feverishly active. He wrote flaming letters to Kentucky that the Mississippi would be lost if the new plan of government were adopted.[1138]He told the people that a religious establishment would be set up.[1139]The Reverend John Blair Smith, President of Hampden Sidney College, declared that Henry "has descended to lower artifices and management ... than I thought him capable of."[1140]Writing to Hamilton of the activities of the opposition, Washington asserted that "their assiduity stands unrivalled";[1141]and he informed Trumbullthat "the opponents of the Constitution are indefatigable."[1142]
"Every art that could inflame the passions or touch the interests of men have been essayed;—the ignorant have been told that should the proposed government obtain, their lands would be taken from them and their property disposed of;—and all ranks are informed that the prohibition of the Navigation of the Mississippi (their favorite object) will be a certain consequence of the adoption of the Constitution."[1143]
Plausible and restrained Richard Henry Lee warned the people that "by means of taxes, the government may command the whole or any part of the subjects' property";[1144]and that the Constitution "promised a large field of employment to military gentlemen, and gentlemen of the law; and in case the government shall be executed without convulsions, it will afford security to creditors, to the clergy, salary-men and others depending on money payments."[1145]
Nor did the efforts of the Virginia opponents of a National establishment stop there. They spreadthe poison of personal slander also. "They have attempted to vilify & debase the characters who formed" the Constitution, complained Washington.[1146]These cunning expedients on one side and desperate artifices on the other were continued during the sitting of the Virginia Convention by all the craft and guile of practical politics.
After the election, Madison reported to Jefferson in Paris that the Northern Neck and the Valley had elected members friendly to the Constitution, the counties south of the James unfriendly members, the "intermediate district" a mixed membership, with Kentucky divided. In this report, Madison counts Marshall fifth in importance of all Constitutionalists elected, and puts only Pendleton, Wythe, Blair, and Innes ahead of him.[1147]
When the Convention was called to order, it made up a striking and remarkable body. Judges and soldiers, lawyers and doctors, preachers, planters, merchants, and Indian fighters, were there. Scarcely a field fought over during the long, red years of the Revolution but had its representative on that historic floor. Statesmen and jurists of three generations were members.[1148]
From the first the Constitutionalists displayed better tactics and discipline than their opponents, just as they had shown greater skill and astuteness in selecting candidates for election. They arranged everything beforehand and carried their plans outwith precision. For the important position of President of the Convention, they agreed on the venerable Chancellor, Edmund Pendleton, who was able, judicial, and universally respected. He was nominated by his associate, Judge Paul Carrington, and unanimously elected.[1149]
In the same way, Wythe, who was learned, trusted, and beloved, and who had been the teacher of many members of the Convention, was made Chairman of the Committee of the Whole. The Anti-Constitutionalists did not dare to oppose either Pendleton or Wythe for these strategic places. They had made the mistake of not agreeing among themselves on strong and influential candidates for these offices and of nominating them before the Constitutionalists acted. For the first time in Virginia's history, a shorthand reporter, David Robertson, appeared to take down a stenographic report of the debates; and this innovation was bitterly resented and resisted by the opposition[1150]as a Constitutionalist maneuver.[1151]Marshall was appointed a member of the committee[1152]which examined the returns of the elections of members and also heard several contested election cases.[1153]
GEORGE WYTHEGEORGE WYTHE
At the beginning the Anti-Constitutionalists did not decide upon a plan of action—did not carefully weigh their course of procedure. No sooner had rules been adopted, and the Constitution and officialdocuments relating to it laid before the Convention, than their second tactical mistake was made; and made by one of their very ablest and most accomplished leaders. When George Mason arose, everybody knew that the foes of the Constitution were about to develop the first move in their order of battle. Spectators and members were breathless with suspense. Mason was the author of Virginia's Constitution and Bill of Rights and one of the most honorable, able, and esteemed members of the Legislature.
He had been a delegate to the Federal Convention and, with Randolph, had refused to sign the Constitution. Sixty-two years old, his snow-white hair contrasting with his blazing dark eyes, his commanding stature clad in black silk, his full, clear voice deliberate and controlled, George Mason was an impressive figure as he stood forth to strike the first blow at the new ordinance of Nationality.[1154]On so important a subject, he did not think any rules should prevent "the fullest and clearest investigation." God's curse would be small compared with "what will justly fall upon us, if from any sinister views we obstruct the fullest inquiry." The Constitution, declared Mason, should be debated, "clause by clause," before any question was put.[1155]
The Constitutionalists, keen-eyed for any strategic blunder of their adversaries, took instant advantage of Mason's bad generalship. Madison suavely agreed with Mason,[1156]and it was unanimously resolved that the Constitution should be "discussed clause by clause through all its parts,"[1157]before any question should be put as to the instrument itself or any part of it. Thus the opposition presented to the Constitutionalists the very method the latter wished for, and had themselves planned to secure, on their own initiative.[1158]The strength of the foes of the proposed National Government was in attacking it as a whole; their weakness, in discussing its specific provisions. The danger of the Constitutionalists lay in a general debate on the large theory and results of the Constitution; their safety, in presenting in detail the merits of its separate parts.
While the fight over the Constitution was partly an economic class struggle, it was in another and a larger phase a battle between those who thought nationally and those who thought provincially. In hostile array were two central ideas: one, of a strong National Government acting directly on men; the other, of a weak confederated league merely suggesting action to States. It was not only an economiccontest, but also, and even more, a conflict by those to whom "liberty" meant unrestrained freedom of action and speech, against those to whom such "liberty" meant tumult and social chaos.
The mouths of the former were filled with those dread and sounding words "despotism" and "arbitrary power"; the latter loudly denounced "enemies of order" and "foes of government." The one wanted no bits in the mouth of democracy, or, at most, soft ones with loose reins and lax hand; the other wished a stout curb, stiff rein, and strong arm. The whole controversy, on its popular side, resounded with misty yet stirring language about "liberty," "aristocracy," "tyranny," "anarchy," "licentiousness"; and yet "debtor," "creditor," "property and taxes," "payment and repudiation," were heard among the more picturesque and thrilling terms. In this fundamental struggle of antagonistic theories, the practical advantage for the hour was overwhelmingly with those who resisted the Constitution.
They had on their side the fears of the people, who, as has appeared, looked on all government with suspicion, on any vital government with hostility, and on a great central Government as some distant and monstrous thing, too far away to be within their reach, too powerful to be resisted, too high and exalted for the good of the common man, too dangerous to be tried. It was, to the masses, something new, vague, and awful; something to oppress the poor, the weak, the debtor, the settler; something to strengthen and enrich the already strong and opulent, the merchant, the creditor, the financial interests.
True, the people had suffered by the loose arrangement under which they now lived; but, after all, had not they and their "liberties" survived? And surely they would suffer even more, they felt, under this stronger power; but would they and their "liberties" survive its "oppression"? They thought not. And did not many of the ablest, purest, and most trusted public characters in the Old Dominion think the same? Here was ammunition and to spare for Patrick Henry and George Mason, Tyler and Grayson, Bland and Harrison—ammunition and to spare, with their guns planted on the heights, if they could center their fire on the Constitution as a single proposition.
But they had been sleeping and now awoke to find their position surrendered, and themselves compelled, if Mason's resolutions were strictly followed, to make the assault in piecemeal on detached parts of the "New Plan," many of which, taken by themselves, could not be successfully combated. Although they tried to recover their lost ground and did regain much of it, yet the Anti-Constitutionalists were hampered throughout the debate by this initial error in parliamentary strategy.[1159]
And now the Constitutionalists were eager to push the fighting. The soldierly Lee was all for haste. The Anti-Constitutionalists held back. Mason protested "against hurrying them precipitately." Harrison said "that many of the members had not yet arrived."[1160]On the third day, the Convention wentinto committee of the whole, with the astute and venerable Wythe in the chair. Hardly had this brisk, erect little figure—clad in single-breasted coat and vest, standing collar and white cravat, bald, except on the back of the head, from which unqueued and unribboned gray hair fell and curled up from the neck[1161]—taken the gavel before Patrick Henry was on his feet.
Henry moved for the reading of the acts by authority of which the Federal Convention at Philadelphia had met,[1162]for they would show the work of that Convention to be illegal and the Constitution the revolutionary creature of usurped power. If Henry could fix on the advocates of stronger law and sterner order the brand of lawlessness and disorder in framing the very plan they now were championing, much of the mistake of yesterday might be retrieved.
But it was too late. Helped from his seat and leaning on his crutches, Pendleton was recognized by Wythe before Henry could get the eye of the chair to speak upon his motion; and the veteran jurist crushed Henry's purpose before the great orator could make it plain. "We are not to consider," said Pendleton, "whether the Federal Convention exceeded their powers." That question "ought not to influence our deliberations." Even if the framers of the Constitution had acted without authority, Virginia's Legislature afterwards had referred it to the people who had elected the present Convention to pass upon it.[1163]Pendleton's briefspeech was decisive;[1164]Henry withdrew his motion; the preamble and the first two sections of the first article of the Constitution were laid before the committee and the destiny-determining debate began.
The Constitutionalists, who throughout the contest never made a mistake in the men they selected to debate or the time when they should speak, had chosen skillfully the parliamentary artillerist to fire their opening gun. They did not wait for the enemy's attack, but discharged the first shot themselves. Quickly there arose a broad, squat, ungainly man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with a nose like the beak of an eagle, and a voice clear and emotionless.[1165]George Nicholas had been a brave, brilliant soldier and was one of the ablest and best-equipped lawyers in the State. He was utterly fearless, whether in battle on the field or in debate on the floor. His family and connections were powerful. In argument and reasoning he was the equal if not the superior of Madison himself; and his grim personality made the meek one of Madison seem tender in comparison. Nothing could disconcert him, nothing daunt his cold courage. He probably was the only man in the Convention whom Henry feared.[1166]
Nicholas was glad, he said, that the Convention was to act with the "fullest deliberation." First he thrust at the method of the opposition to influence members by efforts outside the Convention itself; and went on with a clear, logical, and informed exposition of the sections then under consideration.He ended by saying "that he was willing to trust his own happiness, and that of his posterity, to the operation of that system."[1167]
The Constitution's enemies, thus far out-pointed by its perfectly trained and harmonious supporters, could delay no longer. Up rose the idol and champion of the people. Although only fifty-two years old, he had changed greatly in appearance since the days of his earlier triumphs. The erect form was now stooped; spectacles now covered the flashing eyes and the reddish-brown hair was replaced by a wig, which, in the excitement of speech, he frequently pushed this way and that. But the wizard brain still held its cunning, the magic tongue which, twenty-three years ago had trumpeted Independence, still wrought its spell.[1168]Patrick Henry began his last great fight.
What, asked Henry, were the reasons for this change of government? A year ago the public mind was "at perfect repose"; now it was "uneasy and disquieted." "A wrong step now ... and our republic may be lost." It was a great consolidated Government that the Constitutionalists proposed, solemnly asserted Henry. What right, he asked, had the framers of the Constitution to say, "We, the people, instead ofWe, the states"? He demanded the cause of that fundamental change. "Even from that illustrious man [Washington] who saved us by his valor, I would have a reason for his conduct." The Constitution-makers had no authority except to amend the old system under which the people weregetting along very well. Why had they done what they had no power to do?[1169]
Thus Henry put the Constitutionalists on the defensive. But they were ready. Instantly, Randolph was on his feet. He was thirty-seven years of age, fashioned on noble physical lines, with handsome face and flowing hair. His was one of Virginia's most distinguished families, his connections were influential, and he himself was the petted darling of the people. His luxuriant mind had been highly trained, his rich and sonorous voice gave an added charm to his words.[1170]He was the ostensible author[1171]of the plan on the broad lines of which the Constitution finally had been built. His refusal to sign it because of changes which he thought necessary, and his conversion to the extreme Constitutionalist position, which he now, for the first time, was fully to disclose, made him the strongest single asset the Constitutionalists had acquired. Randolph's open, bold, and, to the public, sudden championship of the Constitution was the explosion in the opposition's camp of a bomb which they had hoped and believed their own ammunition.
Never before, said Randolph, had such a vast event come to a head without war or force. It might well be feared that the best wisdom would be unequal to the emergency and that passion might prevail over reason. He warned the opposition that the chair "well knows what is order, how to command obedience, and that political opinions may be ashonest on one side as on the other." Randolph then tried to explain his change. "I had not even the glimpse of the genius of America," said he of his refusal to sign the report of the Federal Convention. But it was now so late that to insist on amendments before ratification would mean "inevitable ruin to the Union";[1172]and he would strike off his arm rather than permit that.
Randolph then reviewed the state of the country under the Confederation: Congress powerless, public credit ruined, treaties violated, prices falling, trade paralyzed, "and justice trampled under foot." The world looks upon Americans "as little wanton bees, who had played for liberty, but had no sufficient solidity or wisdom" to keep it. True, the Federal Convention had exceeded its authority, but there was nothing else to be done. And why not use the expression "We, the people"? Was the new Government not for them? The Union is now at stake, and, exclaimed he, "I am a friend to the Union."[1173]
The secret was out, at last; the Constitutionalists'coupwas revealed. His speech placed Randolph openly and unreservedly on their side. "The Governor has ... thrown himself fully into the federal scale," gleefully reported the anxious Madison to the supreme Nationalist chieftain at Mount Vernon.[1174]"The G[overno]r exhibited a curious spectacle to view. Having refused to sign the paper [the Constitution] everybody supposed him against it," was Jefferson's comment on Randolph's change of front.[1175]Washington, perfectly informed, wrote Jay in New York that "Mr. Randolph's declaration will have considerable effect with those who had hitherto been wavering."[1176]Theodoric Bland wrote bitterly to Arthur Lee that, "Our chief magistrate has at length taken his party and appears to be reprobated by the honest of both sides.... He has openly declared for posterior amendments, or in other words, unconditional submission."[1177]
All of Randolph's influence, popularity, and prestige of family were to be counted for the Constitution without previous amendment; and this was a far weightier force, in the practical business of getting votes for ratification, than oratory or argument.[1178]So "the sanguine friends of the Constitution counted upon a majority of twenty ... which number they imagine will be greatly increased."[1179]
Randolph's sensational about-face saved the Constitution. Nothing that its advocates did during these seething three weeks of able discussion and skillful planning accomplished half so much to secure ratification. Washington's tremendous influence,aggressive as it was tactful, which, as Monroe truly said, "carried" the new National plan, was not so practically effective as his work in winning Randolph. For, aside from his uncloaked support, the Virginia Governor at that moment had a document under lock and key which, had even rumor of it got abroad, surely would have doomed the Constitution, ended the debate abruptly, and resulted in another Federal Convention to deal anew with the Articles of Confederation.
By now the Anti-Constitutionalists, or Republicans as they had already begun to call themselves, also were acting in concert throughout the country. Their tactics were cumbersome and tardy compared with the prompt celerity of the well-managed Constitutionalists; but they were just as earnest and determined. The Society of the Federal Republicans had been formed in New York to defeat the proposed National Government and to call a second Federal Convention. It opened correspondence in most of the States and had agents and officers in many of them.
New York was overwhelmingly against the Constitution, and her Governor, George Clinton, was the most stubborn and resourceful of its foes. On December 27, 1787, Governor Randolph, under the formal direction of Virginia's Legislature, had sent the Governors of the other States a copy of the act providing for Virginia's Convention, which included the clause for conferring with her sister Commonwealths upon the calling of a new Federal Convention. The one to Clinton of New York was delayedin the mails for exactly two months and eleven days, just long enough to prevent New York's Legislature from acting on it.[1180]
After pondering over it for a month, the New York leader of the Anti-Constitutionalist forces wrote Governor Randolph, more than three weeks before the Virginia Convention assembled, the now famous letter stating that Clinton was sure that the New York Convention, to be held June 17, "will, with great cordiality, hold a communication with any sister State on the important subject [a new Federal Convention] and especially with one so respectable in point of importance, ability, and patriotism as Virginia"; and Clinton assumed that the Virginia Convention would "commence the measures for holding such communications."[1181]
When Clinton thus wrote to Randolph, he supposed, of course, that the Virginia Governor was against the Constitution. Had the New York Executive known that Randolph had been proselyted by the Constitutionalists, Clinton would have written to Henry, or Mason, or taken some other means of getting his letter before the Virginia Convention. Randolph kept all knowledge of Clinton's fatal communication from everybody excepting his Executive Council. He did not make it public until after the long, hard struggle was ended; when, for the first time, too late to be of any effect, he laid theNew York communication before the Virginia Legislature which assembled just as the Convention was adjourning.[1182]
Weighty as were the arguments and brilliant the oratory that made the Virginia debate one of the noblest displays of intellect and emotion which the world ever has seen, yet nothing can be plainer than that other practices on both sides of that immortal struggle were more decisive of the result than the amazing forensic duel that took place on the floor of the Convention hall.
When one reflects that although the weight of fact and reason was decisively in favor of the Constitutionalists; that their forces were better organized and more ably led; that they had on the ground to help them the most astute politicians from other States as well as from Virginia; that Washington aggressively supported them with all his incalculable moral influence; that, if the new National Government were established, this herculean man surely would be President with all the practical power of that office, of which patronage was not the least—when one considers that, notwithstanding all of these and many other crushing advantages possessed by the Constitutionalists, their majority, when the test vote finally came, was only eight out of a total vote of one hundred and sixty-eight; when one takes into account the fact that, to make up even this slender majority, one or two members violated their instructions and several others votedagainst the known will of their constituents, it becomes plain how vitally necessary to their cause was the Constitutionalists' capture of the Virginia Governor.[1183]
The opponents of the proposed National Government never forgave him nor was his reputation ever entirely reëstablished. Mason thereafter scathingly referred to Randolph as "young A[rno]ld."[1184]
Answering Randolph, Mason went to the heart of the subject. "Whether the Constitution be good or bad," said he, "it is a national government and no longer a Confederation ... that the new plan provides for." The power of direct taxation alone "iscalculated to annihilate totally the state governments." It means, said Mason, individual taxation "by two different and distinct powers" which "cannot exist long together; the one will destroy the other." One National Government is not fitted for an extensive country. "Popular governments can only exist in small territories." A consolidated government "is one of the worst curses that can possibly befall a nation." Clear as this now was, when the Convention came to consider the Judiciary clause, everybody would, Mason thought, "be more convinced that this government will terminate in the annihilation of the state governments."
But here again the author of Virginia's Bill of Rights made a tactical mistake from the standpoint of the management of the fight, although it was big-hearted and statesmanlike in itself. "If," said he, "such amendments be introduced as shall exclude danger ... I shall most heartily make the greatest concessions ... to obtain ... conciliation and unanimity."[1185]No grindstone, this, to sharpen activity—no hammer and anvil, this, to shape and harden an unorganized opposition into a single fighting blade, wielded to bring victory or even to force honorable compromise. The suggestion of conciliation before the first skirmish was over was not the way to arouse the blood of combat in the loose, undisciplined ranks of the opposition.
Swift as any hawk, the Constitutionalists pounced upon Mason's error, but they seized it gently as a dove. "It would give me great pleasure," cooedMadison, "to concur with my honorable colleague in any conciliatory plan." But the hour was now late, and he would postpone further remarks for the time being.[1186]
So the Convention adjourned and the day ended with the Constitutionalists in high spirits.[1187]Madison wrote to Washington that "Henry & Mason made a lame figure & appeared to take different and awkward ground. The Federalists [Constitutionalists][1188]are a good deal elated by the existing prospect." Nevertheless, the timid Madison fluttered with fear. "I dare not," wrote he, "speak with certainty as to the decision. Kentucky has been extremely tainted and is supposed to be generally adverse, and every possible piece of address is going on privately to work on the local interests & prejudices of that & other quarters."[1189]
The next day the building of the New Academy, where the Convention met, was packed with an eager throng. Everybody expected Madison to engage both Henry and Mason as he had intimated that he would do. But once more the excellent management of the Constitutionalists was displayed. Madison, personally, was not popular,[1190]he was physically unimpressive, and strong only in his superb intellect. The time to discharge the artillery of that powerfulmind had not yet come. Madison was not the man for this particular moment. But Pendleton was, and so was "Light-Horse Harry" Lee. The Constitutionalists combined the ermine and the sword. Virginia's most venerated jurist and her most dashing soldier were ordered to the front. In them there was an appeal to much that the Old Dominion still reverenced and loved, in spite of the "levelling spirit" manifest there as well as in Massachusetts and other States. So when all eyes were turned on Madison's seat, they beheld it vacant. Madison had stayed away. Had he been present, he could not have avoided speaking.
Dramatic, indeed, appeared the white-haired, crippled jurist, as, struggling to his feet, he finally stood upon his crutches and faced the Convention. He had been unused to public debate for many years, and was thought to be so infirm that no one expected him to do more than make or decide points of order and give his vote. Yet there the feeble old man stood to answer the resistless Henry and the learned Mason. His ancient friend and brother justice, Wythe, leaned forward from his chair to catch the tones of the beloved voice. Tears rolled down the cheeks of some of the oldest members who for decades had been Pendleton's friends.[1191]The Constitutionalists had set the stage to catch theemotions which they affected to despise, with the very character whose strength was in that pure reasoning on which they pretended solely to rely.
Without wasting a word, Pendleton came to the point. Henry, he said, had declared that all was well before "this Federal system was thought of." Was that accurate? In a few short sentences he showed that it was not. There was, said Pendleton, "no quarrel between government and liberty; the former is shield and protector of the latter. The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society to preserve liberty." Why are the words "We, the people," improper? "Who but the people have a right to form government?... What have the state governments to do with it?" Had the Federal Convention exceeded its powers? No. Because those powers were "to propose, not to determine."
"Suppose," asked the venerable Pendleton, "the paper on your table [the Constitution] dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?" Of course. "Then the question must be between this government and the Confederation," which "is no government at all." The Confederation did not carry us through the war; "common danger and the spirit of America" did that. The cry "United we stand—divided we fall," which "echoed and reëchoed through America—from Congress to the drunken carpenter"—saved us in that dark hour. And Pendleton clearly, briefly, solidly, answered every objection which Mason and Henry had made. Nothing could have been more practically effective than his close. He was of no party, Pendleton avowed; and his "age and situation" proved that nothing but the general good influenced him.[1192]
The smouldering fires in Henry's blood now burned fiercely. This was the same Pendleton who had fought Henry in his immortal resolution on the Stamp Act in 1765 and in every other of those epochal battles for liberty and human rights which Henry had led and won.[1193]But the Constitutionalists gave the old war horse no chance to charge upon his lifelong opponent. A young man, thirty-two years of age, rose, and, standing within a few feet of the chair, was recognized. Six feet tall, beautiful of face, with the resounding and fearless voice of a warrior, Henry Lee looked the part which reputation assigned him. Descended from one of the oldest and most honorable families in the colony, a graduate of Princeton College, one of the most daring, picturesque, and attractive officers of the Revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant Lee was a perfect contrast to the venerable Pendleton.[1194]
Lee paid tribute to Henry's shining talents; but, said he, "I trust that he [Henry] is come to judge, and not to alarm." Henry had praised Washington; yet Washington was for the Constitution. What was there wrong with the expression "We, thepeople," since upon the people "it is to operate, if adopted"? Like every Constitutionalist speaker, Lee painted in somber and forbidding colors the condition of the country, "all owing to the imbecility of the Confederation."[1195]
At last Henry secured the floor. At once he struck the major note of the opposition. "The question turns," said he, "on that poor little thing—the expression, 'We, thepeople; instead of thestates.'" It was an "alarming transition ... a revolution[1196]as radical as that which separated us from Great Britain.... Sovereignty of the states ... rights of conscience, trial by jury, liberty of the press, ... all pretensions of human rights and privileges" were imperiled if not lost by the change.
Itwasthe "despised" Confederation that had carried us through the war. Think well, he urged, before you part with it. "Revolutions like this have happened in almost every country in Europe." The new Government may prevent "licentiousness," but also "it will oppress and ruin the people," thundered their champion. The Constitution was clear when it spoke of "sedition," but fatally vague when it spoke of "privileges." Where, asked Henry, were the dangers the Constitutionalists conjured up? Purely imaginary! If any arose, he depended on "the American spirit" to defend us.
The method of amendment provided in the Constitution, exclaimed Henry, was a mockery—it shut the door on amendment. "A contemptible minority can prevent the good of the majority." "A standing army" will "execute the execrable commands of tyranny," shouted Henry. And who, he asked, will punish them? "Will your mace-bearer be a match for a disciplined regiment?" If the Constitution is adopted, "it will be because we like a great splendid" government. "The ropes and chains of consolidation" were "about to convert this country into a powerful and mighty empire." The Constitution's so-called checks and balances, sneered Henry, were "rope-dancing, chain-rattling, ridiculous ... contrivances."
The Constitutionalists talked of danger if the Confederation was continued; yet, under it, declared Henry, "peace and security, ease and content" were now the real lot of all. Why, then, attempt "to terrify us into an adoption of this new form of government?... Who knows the dangers this new system may produce? They are out of sight of the common people; they cannot foresee latent consequences." It was the operation of the proposed National Government "on the middling and lower classes of people" that Henry feared. "This government" [the Constitution], cried he, "is not a Virginian but an American government."
Throughout Henry's speech, in which he voiced, as he never failed to do, the thought of the masses, a National Government is held up as a foreign power—even one so restricted as the literal words of theConstitution outlined. Had the Constitutionalists acknowledged those Nationalist opinions which, in later years, were to fall from the lips of a young member of the Convention and become the law of the land, the defeat of the Constitution would have been certain, prompt, and overwhelming.
In the Constitution's chief executive, Henry saw "a great and mighty President" with "the powers of a King ... to be supported in extravagant magnificence." The National Government's tax-gatherers would "ruin you with impunity," he warned his fellow members and the people they represented. Did not Virginia's own "state sheriffs, those unfeeling blood-suckers," even "under the watchful eye of our legislature commit the most horrid and barbarous ravages on our people? ... Lands have been sold," asserted he, "for 5 shillings which were worth one hundred pounds." What, then, would happen to the people "if their master had been at Philadelphia or New York?" asked Henry. "These harpies may search at any time your houses and most secret recesses." Its friends talked about the beauty of the Constitution, but to Henry its features were "horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy."
The President, "your American chief," can make himself absolute, dramatically exclaimed the great orator. "If ever he violates the laws ... he will come at the head of his army to carry everything before him; or he will give bail, or do what Mr. Chief Justice will order him." But will he submit to punishment? Rather, he will "make one bold push for theAmerican throne," prophesied Henry. "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."[1197]It would be infinitely better, he avowed, to have a government like Great Britain with "King, Lords, and Commons, than a government so replete with such insupportable evils" as the Constitution contained.
Henry spoke of the danger of the power of Congress over elections, and the treaty-making power. A majority of the people were against the Constitution, he said, and even "the adopting states have already heart-burnings and animosity and repent their precipitate hurry.... Pennsylvania has been tricked into" ratification. "If other states who have adopted it have not been tricked, still they were too much hurried.[1198]... I have not said the one hundred thousandth part of what I have on my mind and wish to impart"—with these words of warning to the Constitutionalists, Henry closed by apologizing for the time he had taken. He admitted that he had spoken out of order, but trusted that the Convention would hear him again.[1199]
Studying this attack and defense of master swordsmen, following the tactical maneuvers of America's ablest politicians, a partisan on one side, yet personally friendly with members of the other, JohnMarshall was waiting for the call that should bring him into the battle and, by the method which he employed throughout his life, preparing to respond when the Constitutionalist managers should give the word. He was listening to the arguments on both sides, analyzing them, and, by that process of absorption with which he was so peculiarly and curiously gifted, mastering the subjects under discussion. Also, although casual, humorous, and apparently indifferent, he nevertheless was busy, we may be sure, with his winning ways among his fellow members.
Patrick Henry's effort was one of the two or three speeches made during the three weeks of debate which actually may have had an effect upon votes.[1200]The Constitutionalists feared that Henry would take the floor next morning to follow up his success and deepen the profound impression he had made. To prevent this and to break the force of Henry's onslaught, they put forward Governor Randolph, who was quickly recognized by the chair. Madison and Nicholas were held in reserve.[1201]
But in vain did Randolph employ his powers of oratory, argument, and persuasion in the great speech beginning "I am a child of the Revolution," with which he attempted to answer Henry. There is no peace; "the tempest growls over you.... Justice is suffocated," he said; legal proceedings to collect debts are "obscured by legislative mists." As an illustration of justice, consider the case of Josiah Philips, executed without trial or witness, on a bill of attainder passed without debate on the mere report of a member of the Legislature: "This made the deepest impression on my heart and I cannot contemplate it without horror."[1202]As to "the American spirit" expressed through the militia being competent to the defense of the State, Randolph asked: "Did ever militia defend a country?"
Randolph's speech was exhaustive and reached the heights of real eloquence. It all came to this, he said, Union or Dissolution, thus again repeating the argument Washington had urged in his letter to Randolph. "Let that glorious pride which once defied the British thunder, reanimate you again," he cried dramatically.[1203]But his fervor, popularity, and influence were not enough.
Marshall, when he came to speak later in the debate, made the same mistake. No more striking illustration exists of how public men, in the hurry and pressure of large affairs, forget the most important events, even when they themselves were principal actors in them.
Although the time had not properly come for the great logician of the Constitution to expound it, the situation now precipitated the psychological hour for him to strike. The chair recognized a slender, short-statured man of thirty-seven, wearing a handsome costume of blue and buff with doubled straight collar and white ruffles on breast and at wrists. His hair, combed forward to conceal baldness, was powdered and fell behind in the long beribboned queue of fashion. He was so small that he could not be seen by all the members; and his voice was so weak that only rarely could he be heard throughout the hall.[1204]Such was James Madison as he stood, hat in hand and his notes in his hat, and began the first of those powerful speeches, the strength of which, in spite of poor reporting, has projected itself through more than a hundred years.
At first he spoke so low that even the reporter could not catch what he said.[1205]He would not, remarked Madison, attempt to impress anybody by "ardent professions of zeal for the public welfare." Men should be judged by deeds and not by words. The real point was whether the Constitution would be a good thing or a bad thing for the country. Henry had mentioned the dangers concealed in the Constitution; let him specify and prove them. Oneby one he caught and crushed Henry's points in the jaws of merciless logic.
What, for the gentle Madison, was a bold blow at the opposition shows how even he was angered. "The inflammatory violence wherewith it [the Constitution] was opposed by designing, illiberal, and unthinking minds, begins to subside. I will not enumerate the causes from which, in my conception, the heart-burnings of a majority of its opposers have originated." His argument was unanswerable as a matter of pure reason and large statesmanship, but it made little headway and had only slight if any influence. "I am not so sanguine," reported Washington's nephew to the General at Mount Vernon, "as to ... flatter myself that he made many converts."[1206]
The third gun of the powerful battery which the Constitutionalists had arranged to batter down the results of Henry's speech was now brought into action. George Nicholas again took the floor. He was surprised that Mason's resolution to debate the Constitution clause by clause had not been followed. But it had not been, and therefore he must speak at large. While Nicholas advanced nothing new, his address was a masterpiece of compact reasoning.[1207]
Age and middle age had spoken for the Constitution; voices from the bench and the camp, from thebar and the seats of the mighty, had pleaded for it; and now the Constitutionalists appealed to the very young men of the Convention through one of the most attractive of their number. The week must not close with Henry's visions of desolation uppermost in the minds of the members. On Saturday morning the chair recognized Francis Corbin of Middlesex. He was twenty-eight years old and of a family which had lived in Virginia from the early part of the seventeenth century. He had been educated in England at the University of Cambridge, studied law at the Inner Temple, was a trained lawyer, and a polished man of the world.
Corbin made one of the best speeches of the whole debate. On the nonpayment of our debts to foreign nations he was particularly strong. "What!" said he, "borrow money to discharge interest on what was borrowed?... Such a plan would destroy the richest country on earth." As to a Republican Government not being fitted for an extensive country, he asked, "How small must a country be to suit the genius of Republicanism?" The power of taxation was the "lungs of the Constitution." His defense of a standing army was novel and ingenious. The speech was tactful in the deference paid to older men, and so captivating in the pride it must have aroused in the younger members that it justified the shrewdness of the Constitutionalist generals in putting forward this youthful and charming figure.[1208]
Of course Henry could not follow a mere boy. He cleverly asked that Governor Randolph shouldfinish, as the latter had promised to do.[1209]Randolph could not avoid responding; and his speech, while very able, was nevertheless an attempt to explode powder already burned.[1210]Madison saw this, and getting the eye of the chair delivered the second of those intellectual broadsides, which, together with his other mental efforts during the Constitutional period, mark him as almost the first, if not indeed the very first, mind of his time.[1211]The philosophy and method of taxation, the history and reason of government, the whole range of the vast subject were discussed,[1212]or rather begun; for Madison did not finish, and took up the subject four days later. His effort so exhausted him physically that he was ill for three days.[1213]
Thus fortune favored Henry. The day, Saturday, was not yet spent. After all, he could leave the last impression on the members and spectators, could apply fresh color to the picture he wished his hearers to have before their eyes until the next week renewed the conflict. And he could retain the floor so as to open again when Monday came. The art of Henry in this speech was supreme. He began by stating the substance of Thomas Paine's terrific sentence about government being, at best, "a necessary evil"; and aroused anew that repugnance to any sturdy rule which was a general feeling in the breasts of the masses.
Both the Confederation and the proposed Constitution were "evils," asserted Henry, and the only question was which was the less. Randolph and Madison incautiously had referred to maxims. Henry seized the word with infinite skill. "It is impiously irritating the avenging hand of Heaven ... to desert those maxims which alone can preserve liberty," he thundered. They were lowly maxims, to be sure, "poor little, humble republican maxims"; but "humble as they are" they alone could make a nation safe or formidable. He rang the changes on the catchwords of liberty.
Then Henry spoke of Randolph's change of front. The Constitution "was once execrated" by Randolph. "It seems to me very strange and unaccountable that that which was the object of his execration should now receive his encomiums. Something extraordinary must have operated so great a change in his opinion." Randolph had said that it was too late to oppose the "New Plan"; but, answered Henry, "I can never believe that it is too late to save all that is precious." Henry denied the woeful state of the country which the Constitutionalist speakers had pictured. The "imaginary dangers" conjured by them were to intimidate the people; but, cried Henry, "fear is the passion of slaves." The execution of Josiah Philips under the bill of attainder was justifiable. Philips had been a "fugitive murderer and an outlaw" leader of "an infamousbanditti," perpetrator of "the most cruel and shocking barbarities ... an enemy to human nature."[1214]