Posted on 01/17/2011 8:04:52 AM PST by Publius
Patrick Henry belongs to the same group as Thomas Paine and Samuel Adams, revolutionaries who lit the flame that George Washington kept from being extinguished. Like Adams, Henry had failed in business, but while Adams became a wizard at the art of political propaganda, Henry turned instead to the law, standing for home rule and economic self-determination, advocating in favor of the ancient British tradition of being taxed by one’s own legislators. He further argued that colonial legislatures could not assign that right to Parliament. Because Parliament had long exercised a general right to tax the colonies, Henry’s assertion was considered treasonous.
Henry’s intellectual justification for separation from Britain revolved around corruption. For Henry, money was too important to be diverted into the pockets of grifters, which is why he became the scourge of corruption in Virginia politics. He could personally fight corruption in Williamsburg, but the corruption in London was so entrenched it could only be fought by separation.
Following the Revolution, Henry opposed the adoption of the Constitution, arguing that it gave the federal government too much power. He also objected to Madison’s and Hamilton’s principle that the document was a compact of the whole people, arguing the position that the states were always at the center. This was to be expounded upon in detail by St. George Tucker and John Calhoun.
Yet a decade later, Henry executed a complete turnaround. Once the Constitution had been ratified, he gave it his unwavering support, although he did not abjure any of his earlier criticisms.
The horrors of the French Revolution prompted Henry to join the Federalist Party, backing Washington, Adams and Hamilton. He went so far as to argue that the Jefferson and Madison “Virginia and Kentucky Resolutions”, supporting a state’s right of nullification or interposition, would lead to disunion and civil war.
Henry died six months before his beloved George Washington.
1 Mr. Chairman, I am much obliged to the very worthy gentleman for his encomium.
2 I wish I was possessed with talents, or possessed of anything that might enable me to elucidate this great subject.
3 I am not free from suspicion; I am apt to entertain doubts.
4 I rose yesterday to ask a question which arose in my own mind.
5 When I asked that question, I thought the meaning of my interrogation was obvious.
6 The fate of this question and of America may depend on this.
7 Have they said, “We, the states?”
8 Have they made a proposal of a compact between states?
9 If they had, this would be a confederation.
10 It is otherwise most clearly a consolidated government.
11 The question turns, sir, on that poor little thing, the expression, “We, the people, instead of the states, of America.”
12 I need not take much pains to show that the principles of this system are extremely pernicious, impolitic and dangerous.
13 Is this a monarchy like England: a compact between prince and people, with checks on the former to secure the liberty of the latter?
14 Is this a confederacy like Holland: an association of a number of independent states, each of which retains its individual sovereignty?
15 It is not a democracy, wherein the people retain all their rights securely.
16 Had these principles been adhered to, we should not have been brought to this alarming transition from a Confederacy to a consolidated government.
17 We have no detail of these great consideration which in my opinion ought to have abounded before we should recur to a government of this kind.
18 Here is a resolution as radical as that which separated us from Great Britain.
19 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?
20 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 and inconsiderately by others.
21 Is this tame relinquishment of rights worthy of freemen?
22 Is it worthy of that manly fortitude that ought to characterize republicans?
23 It is said eight states have adopted this plan.
24 I declare that if twelve states-and-a-half had adopted it, I would, with manly firmness and in spite of an erring world, reject it.
25 You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured, for liberty ought to be the direct end of your government.
26 Having premised these things, I shall, with the aid of my judgment and information, which I confess are not extensive, go into the discussion of this system more minutely.
27 Is it necessary for your liberty that you should abandon those great rights by the adoption of this system?
28 Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty?
29 Will the abandonment of your most sacred rights tend to the security of your liberty?
30 Liberty, the greatest of all earthly blessing – give us that precious jewel, and you may take every thing else!
31 But I am fearful I have lived long enough to become an old fashioned fellow.
32 Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented to be so.
33 I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American, but suspicions have gone forth – suspicions of my integrity – publicly reported that my professions are not real.
34 Twenty-three years ago was I supposed a traitor to my country?
35 I was then said to be the bane of sedition because I supported the rights of my country.
36 I may be thought suspicious when I say our privileges and rights are in danger.
37 But sir, a number of the people of this country are weak enough to think these things are too true.
38 I am happy to find that the gentleman on the other side declares they are groundless.
39 But sir, suspicion is a virtue as long as its object is the preservation of the public good and as long as it stays within proper bounds; should it fall on me, I am contented; conscious rectitude is a powerful consolation.
40 I trust there are many who think my professions for the public good to be real.
41 Let your suspicion look to both sides.
42 There are many on the other side who possibly may have been persuaded to the necessity of these measures which I conceive to be dangerous to your liberty.
43 Guard with jealous attention the public liberty.
44 Suspect every one who approaches that jewel.
45 Unfortunately, nothing will preserve it but downright force.
46 Whenever you give up that force, you are inevitably ruined.
47 I am answered by gentlemen that though I might speak of terrors, yet the fact was that we were surrounded by none of the dangers I apprehended.
48 I conceive this new government to be one of those dangers; it has produced those horrors which distress many of our best citizens.
49 We are come hither to preserve the poor commonwealth of Virginia, if it can be possibly done; something must be done to preserve your liberty and mine.
50 The Confederation, this same despised government, merits in my opinion the highest encomium: it carried us through a long and dangerous war, it rendered us victorious in that bloody conflict with a powerful nation, it has secured us a territory greater than any European monarch possesses, and shall a government which has been thus strong and vigorous be accused of imbecility and abandoned for want of energy?
51 Consider what you are about to do before you part with the government.
52 Take longer time in reckoning things; revolutions like this have happened in almost every country in Europe; similar examples are to be found in ancient Greece and ancient Rome – instances of the people losing their liberty by their own carelessness and the ambition of a few.
53 We are cautioned by the honorable gentleman who presides against faction and turbulence.
54 I acknowledge that licentiousness is dangerous, and that it ought to be provided against; I acknowledge also the new form of government may effectually prevent it, yet there is another thing it will as effectually do: it will oppress and ruin the people.
55 There are sufficient guards placed against sedition and licentiousness, for when power is given to this government to suppress these, or for any other purpose, the language it assumes is clear, express and unequivocal, but when this Constitution speaks of privileges, there is an ambiguity, sir, a fatal ambiguity – an ambiguity which is very astonishing.
56 In the clause under consideration, there is the strangest language that I can conceive.
57 I mean when it says that there shall not be more representatives than one for every thirty thousand.
58 Now, sir, how easy is it to evade this privilege!
59 “The number shall not exceed one for every thirty thousand.”
60 This may be satisfied by one representative from each state.
61 Let our numbers be ever so great, this immense continent may by this artful expression be reduced to have but thirteen representatives.
62 I confess this construction is not natural, but the ambiguity of the expression lays a good ground for a quarrel.
63 Why was it not clearly and unequivocally expressed that they should be entitled to have one for every thirty thousand?
64 This would have obviated all disputes, and was this difficult to be done?
65 What is the inference?
66 When population increases and a state shall send representatives in this proportion, Congress may remand them because the right of having one for every thirty thousand is not clearly expressed.
67 This possibility of reducing the number to one for each state approximates to probability by that other expression, “but each state shall at least have one representative.”
68 Now, is it not clear that from the first expression the number might be reduced so much that some states should have no representatives at all, were it not for the insertion of this last expression?
69 And as this is the only restriction upon them, we may fairly conclude that they may restrain the number to one from each state.
70 Perhaps the same horrors may hang over my mind again.
71 I shall be told I am continually afraid, but sir, I have strong cause of apprehension.
72 In some parts of the plan before you, the great rights of freemen are endangered; in other parts, absolutely taken away.
73 How does your trial by jury stand?
74 In civil cases gone, not sufficiently secured in criminal – this best privilege is gone.
75 But we are told that we need not fear because those in power, being our representatives, will not abuse the powers we put in their hands.
76 I am not well versed in history, but I will submit to your recollection whether liberty has been destroyed most often by the licentiousness of the people or by the tyranny of rulers.
77 I imagine, sir, you will find the balance on the side of tyranny.
78 Happy will you be if you miss the fate of those nations who, omitting to resist their oppressors or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism!
79 Most of the human race are now in this deplorable condition, and those nations who have gone in search of grandeur, power and splendor have also fallen a sacrifice and been the victims of their own folly.
80 While they acquired those visionary blessings, they lost their freedom.
81 My great objection to this government is that it does not leave us the means of defending our rights or of waging war against tyrants.
82 It is urged by some gentlemen that this new plan will bring us an acquisition of strength: an army and the militia of the states.
83 This is an idea extremely ridiculous; gentlemen cannot be earnest.
84 This acquisition will trample on our fallen liberty.
85 Let my beloved Americans guard against that fatal lethargy that has pervaded the universe.
86 Have we the means of resisting disciplined armies when our only defense, the militia, is put into the hands of Congress?
87 The honorable gentleman said that great danger would ensue if the Convention rose without adopting this system.
88 I ask: Where is that danger?
89 I see none.
90 Other gentlemen have told us within these walls that the Union is gone, or that the Union will be gone.
91 Is not this trifling with the judgment of their fellow citizens?
92 Till they tell us the grounds of their fears, I will consider them as imaginary.
93 I rose to make inquiry where those dangers were; they could make no answer:
94 I believe I never shall have that answer.
95 Is there a disposition in the people of this country to revolt against the dominion of laws?
96 Has there been a single tumult in Virginia?
97 Have not the people of Virginia, when laboring under the severest pressure of accumulated distresses, manifested the most cordial acquiescence in the execution of the laws?
98 What could be more awful than their unanimous acquiescence under general distresses?
99 Is there any revolution in Virginia?
100 Whither is the spirit of America gone?
101 Whither is the genius of America fled?
102 It was but yesterday when our enemies marched in triumph through our country.
103 Yet the people of this country could not be appalled by their pompous armaments: they stopped their career and victoriously captured them.
104 Where is the peril now compared to that?
105 Some minds are agitated by foreign alarms.
106 Happily for us, there is no real danger from Europe; that country is engaged in more arduous business; from that quarter there is no cause of fear; you may sleep in safety forever for them.
107 Where is the danger?
108 If, sir, there was any, I would recur to the American spirit to defend us, that spirit which has enabled us to surmount the greatest difficulties; to that illustrious spirit I address my most fervent prayer to prevent our adopting a system destructive to liberty.
109 Let not gentlemen be told that it is not safe to reject this government.
110 Wherefore is it not safe?
111 We are told there are dangers, but those dangers are ideal; they cannot be demonstrated.
112 To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments.
113 When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so.
114 The way to amendment is in my conception shut.
115 Let us consider this plain, easy way.
116 “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a Convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by the Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect the 1st and 4th clauses in the 9th section of the 1st article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
117 Hence it appears that three-fourths of the states must ultimately agree to any amendments that may be necessary.
118 Let us consider the consequence of this.
119 However uncharitable it may appear, yet I must tell my opinion: that the most unworthy characters may get into power and prevent the introduction of amendments.
120 Let us suppose – for the case is supposable, possible and probable – that you happen to deal those powers to unworthy hands, will they relinquish powers already in their possession or agree to amendments?
121 Two-thirds of the Congress, or of the state legislatures, are necessary even to propose amendments.
122 If one-third of these be unworthy men, they may prevent the application for amendments, but what is destructive and mischievous is that three-fourths of the state legislatures, or of the state conventions, must concur in the amendments when proposed!
123 In such numerous bodies, there must necessarily be some designing, bad men.
124 To suppose that so large a number as three-fourths of the states will concur is to suppose that they will possess genius, intelligence and integrity approaching to miraculous.
125 It would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some likeness to one another, for four of the smallest states that do not collectively contain one-tenth part of the population of the United States may obstruct the most salutary and necessary amendments.
126 Nay, in these four states, six-tenths of the people may reject these amendments, and suppose that amendments shall be opposed to amendments, which is highly probable, is it possible that three-fourths can ever agree to the same amendments?
127 A bare majority in these four small states may hinder the adoption of amendments, so that we may fairly and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression by refusing to accede to amendments.
128 A trifling minority may reject the most salutary amendments.
129 Is this an easy mode of securing the public liberty?
130 It is, sir, a most fearful situation when the most contemptible minority can prevent the alteration of the most oppressive government, for it may in many respects prove to be such.
131 Is this the spirit of republicanism?
132 What, sir, is the genius of democracy?
133 Let me read that clause of the Bill of Rights of Virginia which relates to this.
134 Third clause: “that government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community. Of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate, or contrary to those purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
135 This, sir, is the language of democracy: that a majority of the community have a right to alter government when found to be oppressive.
136 But how different is the genius of your new Constitution from this!
137 How different from the sentiments of freemen that a contemptible minority can prevent the good of the majority!
138 If then, gentlemen standing on this ground are come to that point that they are willing to bind themselves and their posterity to be oppressed, I am amazed and inexpressibly astonished.
139 If this be the opinion of the majority, I must submit, but to me, sir, it appears perilous and destructive.
140 I cannot help thinking so.
141 Perhaps it may be the result of my age.
142 These may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the members of the body, are decayed.
143 If, sir, amendments are left to the twentieth or tenth part of the people of America, your liberty is gone forever.
144 We have heard that there is a great deal of bribery practiced in the House of Commons in England, and that many of the members raise themselves to preferments by selling the rights of the whole of the people.
145 But sir, the tenth part of that body cannot continue oppression on the rest of the people.
146 English liberty is in this case on a firmer foundation than American liberty.
147 It will be easily contrived to procure the opposition of one-tenth of the people to any alteration, however judicious.
148 The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in convention, recall our delegated powers and punish our servants for abusing the trust reposed in them.
149 O sir, we should have fine times indeed if, to punish tyrants, it were only sufficient to assemble the people!
150 Your arms, wherewith you could defend yourselves, are gone, and you have no longer an [aristocratic], no longer a [democratic], spirit.
151 Did you ever read of any revolution in a nation brought about by the punishment of those in power inflicted by those who had no power at all?
152 You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism.
153 We may see such an act in America.
154 A standing army we shall have also to execute the execrable commands of tyranny, and how are you to punish them?
155 Will you order them to be punished?
156 Who shall obey these orders?
157 Will your mace bearer be a match for a disciplined regiment?
158 In what situation are we to be?
159 The clause before you gives a power of direct taxation unbounded and unlimited, exclusive power of legislation in all cases whatsoever for ten miles square and over all places purchased for the erection of forts, magazines, arsenals, dockyards, etc.
160 What resistance could be made?
161 The attempt would be madness.
162 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country.
163 Your militia is given up to Congress also in another part of this plan; they will therefore act as they think proper; all power will be in their own possession.
164 You cannot force them to receive their punishment; of what service would militia be to you when, most probably, you will not have a single musket in the state for as arms are to be provided by Congress, they may or may not furnish them.
165 Let me here call your attention to that part which gives the Congress power “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
166 By this, sir, you see that their control over our last and best defense is unlimited.
167 If they neglect or refuse to discipline or arm our militia, they will be useless; the states can do neither, this power being exclusively given to Congress.
168 The power of appointing officers over men not disciplined or armed is ridiculous, so that this pretended, little remains of power left to the states may at the pleasure of Congress be rendered nugatory.
169 Our situation will be deplorable indeed; nor can we ever expect to get this government amended since I have already shown that a very small minority may prevent it and that small minority interested in the continuance of the oppression.
170 Will the oppressor let go the oppressed?
171 Was there ever an instance?
172 Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly?
173 The application for amendments will therefore be fruitless.
174 Sometimes the oppressed have got loose by one of those bloody struggles that desolate a country, but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.
175 The honorable gentleman’s observations respecting the people’s right of being the agents in the formation of this government are not accurate, in my humble conception.
176 The distinction between a national government and a confederacy is not sufficiently discerned.
177 Had the delegates who were sent to Philadelphia a power to propose a consolidated government instead of a confederacy?
178 Were they not deputed by states and not by the people?
179 The assent of the people in their collective capacity is not necessary to the formation of a federal government.
180 The people have no right to enter into leagues, alliances, or confederations; they are not the proper agents for this purpose.
181 States and foreign powers are the only proper agents for this kind of government.
182 Show me an instance where the people have exercised this business.
183 Has it not always gone through the legislatures?
184 I refer you to the treaties with France, Holland and other nations.
185 How were they made?
186 Were they not made by the states?
187 Are the people, therefore, in their aggregate capacity the proper persons to form a confederacy?
188 This, therefore, ought to depend on the consent of the legislatures, the people having never sent delegates to make any proposition for changing the government.
189 Yet I must say at the same time that it was made on grounds the most pure, and perhaps I might have been brought to consent to it so far as to the change of government.
190 But there is one thing in it which I never would acquiesce in.
191 I mean the changing it into a consolidated government, which is so abhorrent to my mind.
192 An opinion has gone forth, we find, that we are contemptible people; the time has been when we were thought otherwise.
193 Under the same despised government, we commanded the respect of all Europe; wherefore are we now reckoned otherwise?
194 The American spirit has fled from hence; it has gone to regions where it has never been expected; it has gone to the people of France in search of a splendid government, a strong, energetic government.
195 Shall we imitate the example of those nations who have gone from a simple to a splendid government?
196 Are those nations more worthy of our imitation?
197 What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government, for the loss of their liberty?
198 If we admit this consolidated government, it will be because we like a great, splendid one.
199 Some way or other we must be a great and mighty empire; we must have an army and a navy and a number of things.
200 When the American spirit was in its youth, the language of America was different; liberty, sir, was then the primary object.
201 We are descended from a people whose government was founded on liberty; our glorious forefathers of Great Britain made liberty the foundation of everything.
202 That country is become a great, mighty and splendid nation, not because their government is strong and energetic, but sir, because liberty is its direct end and foundation.
203 We drew the spirit of liberty from our British ancestors; by that spirit we have triumphed over every difficulty.
204 But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire.
205 If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together.
206 Such a government is incompatible with the genius of republicanism.
207 There will be no checks, no real balances, in this government.
208 What can avail your specious, imaginary balances, your rope dancing, chain rattling, ridiculous ideal checks and contrivances?
209 But, sir, we are not feared by foreigners; we do not make nations tremble.
210 Would this constitute happiness or secure liberty?
211 I trust, sir, our political hemisphere will ever direct their operations to the security of those objects.
212 Consider our situation, sir; go to the poor man and ask him what he does.
213 He will inform you that he enjoys the fruits of his labor under his own fig tree with his wife and children around him in peace and security.
214 Go to every other member of society; you will find the same tranquil ease and content; you will find no alarms or disturbances.
215 Why then tell us of danger, to terrify us into an adoption of this new form of government?
216 And yet who knows the dangers that this new system may produce?
217 They are out of the sight of the common people; they cannot foresee latent consequences.
218 I dread the operation of it on the middling and lower classes of people; it is for them I fear the adoption of this system.
219 I fear I tire the patience of the committee, but I beg to be indulged with a few more observations.
220 When I thus profess myself an advocate for the liberty of the people, I shall be told I am a designing man, that I am to be a great man, that I am to be a demagogue, and many similar illiberal insinuations will be thrown out, but sir, conscious rectitude outweighs those things with me.
221 I see great jeopardy in this new government.
222 I see none from our present one.
223 I hope some gentleman or other will bring forth, in full array, those dangers, if there be any, that we may see and touch them.
224 I have said that I thought this a consolidated government; I will now prove it.
225 Will the great rights of the people be secured by this government?
226 Suppose it should prove oppressive, how can it be altered?
227 Our Bill of Rights declares, “that a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
228 I have just proved that one tenth or less of the people of America, a most despicable minority, may prevent this reform or alteration.
229 Suppose the people of Virginia should wish to alter their government; can a majority of them do it?
230 No, because they are connected with other men or, in other words, consolidated with other states.
231 When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States.
232 The founders of your own constitution made your government changeable, but the power of changing it is gone from you.
233 Whither is it gone?
234 It is placed in the same hands that hold the rights of twelve other states, and those who hold those rights have right and power to keep them.
235 It is not the particular government of Virginia; one of the leading features of that government is that a majority can alter it when necessary for the public good.
236 This government is not a Virginian, but an American, government.
237 Is it not, therefore, a consolidated government?
238 The sixth clause of your Bill of Rights tells you, “that elections of members to serve as representatives of the people in Assembly ought to be free, and that all men having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed, or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.”
239 But what does this Constitution say?
240 The clause under consideration gives an unlimited and unbounded power of taxation.
241 Suppose every delegate from Virginia opposes a law laying a tax, what will it avail?
242 They are opposed by a majority; eleven members can destroy their efforts; those feeble ten cannot prevent the passing the most oppressive tax law, so that, in direct opposition to the spirit and express language of your declaration of rights, you are taxed, not by your own consent, but by people who have no connection with you.
243 The next clause of the Bill of Rights tells you, “that all power of suspending law, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
244 This tells us that there can be no suspension of government or laws without our own consent, yet this Constitution can counteract and suspend any of our laws that contravene its oppressive operation, for they have the power of direct taxation which suspends our Bill of Rights, and it is expressly provided that they can make all laws necessary for carrying their powers into execution, and it is declared paramount to the laws and constitutions of the states.
245 Consider how the only remaining defense we have left is destroyed in this manner.
246 Besides the expenses of maintaining the Senate and other House in as much splendor as they please, there is to be a great and mighty President with very extensive powers, the powers of a king.
247 He is to be supported in extravagant magnificence, so that the whole of our property may be taken by this American government by laying what taxes they please, giving themselves what salaries they please, and suspending our laws at their pleasure.
248 I might be thought too inquisitive, but I believe I should take up very little of your time in enumerating the little power that is left to the government of Virginia, for this power is reduced to little or nothing: their garrisons, magazines, arsenals and forts, which will be situated in the strongest places within the states; their ten miles square with all the fine ornaments of human life added to their powers and taken from the states, will reduce the power of the latter to nothing.
249 The voice of tradition, I trust, will inform posterity of our struggles for freedom.
250 If our descendants be worthy the name of Americans, they will preserve and hand down to their latest posterity the transactions of the present times, and though I confess my exclamations are not worthy the hearing, they will see that I have done my utmost to preserve their liberty, for I never will give up the power of direct taxation but for a scourge.
251 I am willing to give it conditionally, that is, after non-compliance with requisitions.
252 I will do more, sir, and what I hope will convince the most skeptical man that I am a lover of the American Union: that in case Virginia shall not make punctual payment, the control of our customhouses and the whole regulation of trade shall be given to Congress, and that Virginia shall depend on Congress even for passports, till Virginia shall have paid the last farthing and furnished the last soldier.
253 Nay, sir, there is another alternative to which I would consent: even that they should strike us out of the Union and take away from us all federal privileges till we comply with federal requisitions, but let it depend upon our own pleasure to pay our money in the most easy manner for our people.
254 Were all the states, more terrible than the mother country, to join against us, I hope Virginia could defend herself, but sir, the dissolution of the Union is most abhorrent to my mind.
255 The first thing I have at heart is American liberty, the second thing is American union, and I hope the people of Virginia will endeavor to preserve that Union.
256 The increasing population of the Southern states is far greater than that of New England; consequently, in a short time they will be far more numerous than the people of that country.
257 Consider this, and you will find this state more particularly interested to support American liberty and not bind our posterity by an improvident relinquishment of our rights.
258 I would give the best security for a punctual compliance with requisitions, but I beseech gentlemen, at all hazards, not to give up this unlimited power of taxation.
259 The honorable gentleman has told us that these powers given to Congress are accompanied by a Judiciary which will correct all.
260 On examination, you will find this very Judiciary oppressively constructed, your jury trial destroyed and the judges dependent on Congress.
261 In this scheme of energetic government, the people will find two sets of tax gatherers: the state and the federal sheriffs.
262 This, it seems to me, will produce such dreadful oppression as the people cannot possibly bear.
263 The federal sheriff may commit what oppression, make what distresses he pleases, and ruin you with impunity, for how are you to tie his hands?
264 Have you any sufficiently decided means of preventing him from sucking your blood by speculations, commissions and fees?
265 Thus thousands of your people will be most shamefully robbed; our state sheriffs, those unfeeling bloodsuckers have, under the watchful eye of our legislature, committed the most horrid and barbarous ravages on our people.
266 It has required the most constant vigilance of the legislature to keep them from totally ruining the people; a repeated succession of laws has been made to suppress their iniquitous speculations and cruel extortions, and as often has their nefarious ingenuity devised methods of evading the force of those laws, in the struggle they have generally triumphed over the legislature.
267 It is a fact that lands have been sold for five shillings which were worth one hundred pounds; if sheriffs, thus immediately under the eye of our state legislature and judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?
268 If they perpetrate the most unwarrantable outrage on your person or property, you cannot get redress on this side of Philadelphia or New York, and how can you get it there?
269 If your domestic avocations could permit you to go thither, there you must appeal to judges sworn to support this Constitution in opposition to that of any state, and who may also be inclined to favor their own officers.
270 When these harpies are aided by excisemen who may search at any time your houses and most secret recesses, will the people bear it?
271 If you think so, you differ from me.
272 Where I thought there was a possibility of such mischiefs, I would grant power with a niggardly hand, and here there is a strong probability that these oppressions shall actually happen.
273 I may be told that it is safe to err on that side because such regulations may be made by Congress as shall restrain these officers, and because laws are made by our representatives and judged by righteous judges; but sir, as these regulations may be made, so they may not, and many reasons there are to induce a belief that they will not.
274 I shall therefore be an infidel on that point till the day of my death.
275 This Constitution is said to have beautiful features, but when I come to examine these features, sir, they appear to me horribly frightful.
276 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?
277 Your President may easily become king.
278 Your Senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority, and a very small minority may continue forever unchangeably this government, although horridly defective.
279 Where are your checks in this government?
280 Your strongholds will be in the hands of your enemies.
281 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 hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad?
282 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!
283 I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.
284 If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!
285 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?
286 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.
287 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.
288 I cannot with patience think of this idea.
289 If ever he violates the laws, one of two things will happen: he will come at the head of his army to carry every thing before him, or he will give bail or do what Mr. Chief Justice will order him.
290 If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne?
291 Will not the immense difference between being master of everything, and being ignominiously tried and punished, powerfully excite him to make this bold push?
292 But sir, where is the existing force to punish him?
293 Can he not, at the head of his army, beat down every opposition?
294 Away with your President!
295 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?
296 What will then become of you and your rights?
297 Will not absolute despotism ensue?
298 What can be more defective than the clause concerning the elections?
299 The control given to Congress over the time, place and manner of holding elections will totally destroy the end of suffrage.
300 The elections may be held at one place and the most inconvenient in the state, or they may be at remote distances from those who have a right of suffrage; hence nine out of ten must either not vote at all or vote for strangers, for the most influential characters will be applied to, to know who are the most proper to be chosen.
301 I repeat that the control of Congress over the manner, etc., of electing well warrants this idea.
302 The natural consequence will be that this democratic branch will possess none of the public confidence; the people will be prejudiced against representatives chosen in such an injudicious manner.
303 The proceedings in the northern conclave will be hidden from the yeomanry of this country.
304 We are told that the yeas and nays shall be taken and entered on the journals.
305 This, sir, will avail nothing; it may be locked up in their chests and concealed forever from the people, for they are not to publish what parts they think require secrecy; they may think, and will think the whole requires it.
306 Another beautiful feature of this Constitution is the publication from time to time of the receipts and expenditures of the public money.
307 This expression, from time to time, is very indefinite and indeterminate; it may extend to a century.
308 Grant that any of them are wicked, they may squander the public money so as to ruin you, and yet this expression will give you no redress.
309 I say they may ruin you, for where, sir, is the responsibility?
310 The yeas and nays will show you nothing unless they be fools as well as knaves, for after having wickedly trampled on the rights of the people, they would act like fools indeed were they to public and divulge their iniquity when they have it equally in their power to suppress and conceal it.
311 Where is the responsibility, that leading principle in the British government?
312 In that government, a punishment certain and inevitable is provided, but in this, there is no real, actual punishment for the grossest mal-administration.
313 They may go without punishment though they commit the most outrageous violation on our immunities.
314 That paper may tell me they will be punished.
315 I ask: By what law?
316 They must make the law, for there is no existing law to do it.
317 What, will they make a law to punish themselves?
318 This, sir, is my great objection to the Constitution, that there is no true responsibility, and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.
319 In the country from which we are descended, they have real and not imaginary responsibility, for their mal-administration has cost their heads to some of the most saucy geniuses that ever were.
320 The Senate, by making treaties, may destroy your liberty and laws for want of responsibility.
321 Two-thirds of those that shall happen to be present can, with the President, make treaties that shall be the supreme law of the land; they may make the most ruinous treaties, and yet there is no punishment for them.
322 Whoever shows me a punishment provided for them will oblige me.
323 So sir, notwithstanding there are eight pillars, they want another.
324 Where will they make another?
325 I trust, sir, the exclusion of the evils wherewith this system is replete in its present form will be made a condition precedent to its adoption by this or any other state.
326 The transition from a general unqualified admission to offices to a consolidation of government seems easy, for though the American states are dissimilar in their structure, this will assimilate them.
327 This, sir, is itself a strong consolidating feature and is not one of the least dangerous in that system.
328 Nine states are sufficient to establish this government over those nine.
329 Imagine that nine have come into it.
330 Virginia has certain scruples.
331 Suppose she will consequently refuse to join with those states; may not she still continue in friendship and union with them?
332 If she sends her annual requisitions in dollars, do you think their stomachs will be so squeamish as to refuse her dollars?
333 Will they not accept her regiments?
334 They would intimidate you into an inconsiderate adoption and frighten you with ideal evils, and that the Union shall be dissolved.
335 [It is] a bugbear, sir; the fact is, sir, that the eight adopting states can hardly stand on their own legs.
336 Public fame tells us that the adopting states have already heart burnings and animosity and repent their precipitate hurry; this, sir, may occasion exceeding great mischief.
337 When I reflect on these and many other circumstances, I must think those states will be found to be in confederacy with us.
338 If we pay our quota of money annually and furnish our ratable number of men when necessary, I can see no danger from a rejection.
339 The history of Switzerland clearly proves that we might be in amicable alliance with those states without adopting this Constitution.
340 Switzerland is a confederacy consisting of dissimilar governments.
341 This is an example which proves that governments of dissimilar structures may be confederated.
342 That confederate republic has stood upwards of four hundred years, and although several of the individual republics are democratic and the rest aristocratic, no evil has resulted from this dissimilarity, for they have braved all the power of France and Germany during that long period.
343 The Swiss spirit, sir, has kept them together; they have encountered and overcome immense difficulties with patience and fortitude.
344 In the vicinity of powerful and ambitious monarchs, they have retained their independence, republican simplicity and valor.
345 Look at the peasants of that country and of France, and mark the difference.
346 You will find the condition of the former far more desirable and comfortable.
347 No matter whether the people be great, splendid and powerful if they enjoy freedom.
348 The Turkish Grand Signior, alongside of our President, would put us to disgrace, but we should be as abundantly consoled for this disgrace when our citizens have been put in contrast with the Turkish slave.
349 The most valuable end of government is the liberty of the inhabitants.
350 No possible advantages can compensate for the loss of this privilege.
351 Show me the reason why the American Union is to be dissolved.
352 Who are those eight adopting states?
353 Are they averse to give us a little time to consider before we conclude?
354 Would such a disposition render a junction with them eligible, or is it the genius of that kind of government to precipitate people hastily into measures of the utmost importance and grant no indulgence?
355 If it be, sir, is it for us to accede to such a government?
356 We have a right to have time to consider; we shall therefore insist upon it.
357 Unless the government be amended, we can never accept it.
358 The adopting states will doubtless accept our money and our regiments, and what is to be the consequence if we are disunited?
359 I believe it is yet doubtful whether it is not proper to stand by a while and see the effect of its adoption in other states.
360 In forming a government, the utmost care should be taken to prevent its becoming oppressive, and this government is of such an intricate and complicated nature that no man on this earth can know its real operation.
361 The other states have no reason to think from the antecedent conduct of Virginia that she has any intention of seceding from the Union or of being less active to support the general welfare.
362 Would they not, therefore, acquiesce in our taking time to deliberate – deliberate whether the measure be not perilous, not only for us, but the adopting states?
363 Permit me, sir, to say that a great majority of the people, even in the adopting states, are averse to this government.
364 I believe I would be right to say that they have been egregiously misled.
365 Pennsylvania has, perhaps, been tricked into it.
366 If the other states who have adopted it have not been tricked, still they were too much hurried into its adoption.
367 There were very respectable minorities in several of them, and if reports be true, a clear majority of the people are averse to it.
368 If we also accede and it should prove grievous, the peace and prosperity of our country, which we all love, will be destroyed.
369 This government has not the affection of the people at present.
370 Should it be oppressive, their affections will be totally estranged from it, and sir, you know that a government without their affections can neither be durable nor happy.
371 I speak as one poor individual, but when I speak, I speak the language of thousands.
372 But sir, I mean not to breathe the spirit nor utter the language of secession.
373 I have trespassed so long on your patience, I am really concerned that I have something yet to say.
374 The honorable member has said we shall be properly represented.
375 Remember, sir, that the number of our representatives is but ten, whereof six is a majority.
376 Will those men be possessed of sufficient information?
377 A particular knowledge of particular districts will not suffice.
378 They must be well acquainted with agriculture, commerce and a great variety of other matters throughout the continent; they must know not only the actual state of nations in Europe and America, the situations of their farmers, cottagers and mechanics, but also the relative situations and intercourse of those nations.
379 Virginia is as large as England.
380 Our proportion of representatives is but ten men.
381 In England they have 558.
382 The House of Commons in England, numerous as they are, we are told, are bribed, and have bartered away the rights of their constituents; what then shall become of us?
383 Will these few protect our rights?
384 Will they be incorruptible?
385 You say they will be better men than the English commoners.
386 I say they will be infinitely worse men because they are to be chosen blindfolded; their election – the term as applied to their appointment is inaccurate – will be an involuntary nomination and not a choice.
387 I have, I fear, fatigued the committee, yet I have not said the one-hundred-thousandth part of what I have on my mind and wish to impart.
388 On this occasion, I conceived myself bound to attend strictly to the interest of the state, and I thought her dearest rights at stake.
389 Having lived so long, been so much honored, my efforts, though small, are due to my country.
390 I have found my mind hurried on from subject to subject on this very great occasion.
391 We have been all out of order, from the gentleman who opened today, to myself.
392 I did not come prepared to speak on so multifarious a subject in so general a manner.
393 I trust you will indulge me another time.
394 Before you abandon the present system, I hope you will consider not only its defects most maturely, but likewise those of that which you are to substitute for it.
395 May you be fully apprized of the dangers of the latter, not by fatal experience, but by some abler advocate than I!
The Game Goes into its Final Quarter
When Hamilton finished his series of essays on the Executive in Federalist #77 on 4 April, he waited ten weeks before beginning his series on the Judiciary. During this period, Maryland and South Carolina ratified the Constitution, bringing the total number of ratifying states up to eight. With one more ratification, the Constitution would go into effect for those nine states, and New Hampshire looked solid for the ninth state.
But this victory would be hollow indeed if Virginia and New York did not ratify, those being two of the largest and most important states. The battleground now shifted to these two giants, with Patrick Henry of Virginia and Melancton Smith of New York carrying forth the arguments against ratification.
Henry’s Critique
At Virginia’s ratifying convention, the sides were populated by some of the greatest luminaries in all of American politics. Favoring approval were James Madison, Governor Edmund Randolph, who had refused to sign the Constitution and had now changed his mind, and John Marshall, future Chief Justice of the Supreme Court. Opposing were firebrand Patrick Henry, who also represented the absent Thomas Jefferson, George Mason, author of the Virginia Constitution and its Bill of Rights, and James Monroe, future President of the United States.
The plan of the Virginia ratifying convention was to consider the proposed Constitution in a solemn, methodical manner, clause by clause, a war plan that, as von Moltke wryly observed, did not survive first contact with the enemy. Unsurprisingly to anyone who knew him, it was Patrick Henry who first departed from the plan, insisting that the matter be considered from a broader theoretical perspective. Even the characteristically staid Madison was irritated at Henry’s departure and his passion, and it took nearly two weeks before the convention settled into its clause-by-clause consideration. By then the broader perspective was established so firmly that the Virginia convention would, in the end, grant only a qualified approval.
Such an approval had already been granted the previous February in Massachusetts, whose delegates had specified that ratification would be contingent upon the addition of a bill of rights, an arrangement that the exasperated Madison had declared, with some justification, to be out of bounds, ratification votes normally being an up-or-down affair. Nevertheless, it was in force, and it was in this atmosphere that the titans of Virginia began to exchange blows.
From the perspective of the modern reader, Henry’s speech contains a major flaw: despite his vehement, even poetic, insistence that the proposed Constitution would result in the destruction of American liberty, he did not specify on what grounds he had so concluded. But that is from a modern perspective only – every listener at the convention knew perfectly well what he was talking about. It was a single clause in the proposed Constitution that is, more than anything else in that storied document, the gateway to growth of, and abuse by, the federal government, and Henry saw it clearly from the very beginning, for the last clause of Article I, Section 8 gives Congress the following power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This is the Necessary and Proper clause. Madison and Hamilton felt that this power was clearly restricted by its reference to the enumerated powers specified in the Constitution, and Congress would find itself legally incapable of moving beyond them. Henry knew perfectly well that it was ambiguous enough to constitute an open invitation to encroachment, and that unlike the rest of the meticulously balanced clauses in the Constitution, it would face no check whatever except where its consequences ran afoul of the Supreme Court. His solution was to refuse to ratify until such a check and balance were provided in the form of a bill of rights, such as was already present in the Virginia Constitution. He begins by stating his preference for the confederation model, illustrated by the first three words of the Preamble, “We, the People,” which for Henry was the death knell of state sovereignty.
7 Have they said, “We, the states?”
9 If they had, this would be a confederation.
10 It is otherwise most clearly a consolidated government.
19 It is radical in this transition: our rights and privileges are endangered, and the sovereignty of the states will be relinquished…
What rights and privileges did Henry have in mind? A reader conversant with the Bill of Rights may find a familiar ring to his choice of phrase.
20 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…
He expresses his own theory of government from first principles. “Liberty ought to be the direct end of your government,” he states at 25. It is a notion the modern reader may find antique, even jarring, coming at the end of a 20th Century filled with governments whose true nature have been revealed as coercion. That does not mean that it is in any sense invalidated by a course of history that has seen it marginalized. The purpose of government is the protection and nurture of human liberty. Everything Henry says hinges on that foundational premise. It is a notion already feeling the strain of challenge from the passage of time, according to Henry, old fashioned as he suspects he has become (31). He was at the advanced age of 52 when he made this speech.
Here he expresses another foundational premise that many modern readers may find uncomfortable. Liberty, he says, is the sine qua non, and behind all the carefully constructed measures attendant even to the best of governments, the ultimate resort of the people in its preservation is violence.
43 Guard with jealous attention the public liberty.
45 Unfortunately, nothing will preserve it but downright force.
But surely under a benign government whose members are trustworthy and whose interests are centered around the welfare of the people, such a thing must become a relic of the uncivilized past! It is the siren song of power, and Henry knows better.
46 Whenever you give up that force, you are inevitably ruined.
That is as stark a statement of the underpinnings of human freedom as is to be found in any philosophical text. It is, as well, a reminder that the antidote to the sort of violence that will reduce the citizen to chains is his own violence in preventing it. It is neither love, nor reason, nor good intentions, and not, says Henry, any system of government that relies on these. To be sure, its expression in the form of “faction and turbulence” is to be avoided (54), but not at the expense of an oppressive government.
What could go wrong? Henry suggests that the language surrounding the “no more than one representative for every 30,000" might be twisted to result in only one representative per state at the extreme, although he acknowledges that such a construction is a bit far-fetched. It isn’t the plan that is the problem, it is the ambiguity of language. It is difficult to imagine what Henry might think of the current number of one representative per some 700,000 people in terms of the guardianship of human liberty, although that number is a result of growth, not of conspiracy. But he is no believer in the dependence on the good intentions of politicians.
75 But we are told that we need not fear because those in power, being our representatives, will not abuse the powers we put in their hands.
Such trust is the road to despotism (78). A glimpse into Henry’s crystal ball:
79 Most of the human race are now in this deplorable condition [of despotism], and those nations who have gone in search of grandeur, power and splendor have also fallen a sacrifice and been the victims of their own folly.
80 While they acquired those visionary blessings, they lost their freedom.
It is a sobering consideration for those who flatter themselves citizens of the one remaining superpower on the planet. Again, Henry emphasizes the necessity of the people to defend themselves against their own rulers.
81 My great objection to this government is that it does not leave us the means of defending our rights or of waging war against tyrants.
No protection against a people disarmed, silenced, refused the right to a jury trial, subject to direct taxation at a federal hand, such a horror enforced by a standing army and control of the state militias (82, 86). One hears Henry paraphrasing himself: “If this be alarmism, let us make the most of it.”
His opponents are, he suggests, no stranger to alarmism themselves. Shall the voters of Virginia ratify the Constitution based on a threat to public stability that they have not seen?
96 Has there been a single tumult in Virginia?
It is a point more rhetorical than accurate, carefully qualified by “in Virginia”. There have been numerous tumults elsewhere, typified but by no means restricted to Shays’ Rebellion. There will be more to come. Suddenly Henry’s crystal ball clouds a bit.
106 Happily for us, there is no real danger from Europe; that country is engaged in more arduous business; from that quarter there is no cause of fear; you may sleep in safety forever for them.
Henry would not live to see Washington City occupied and the White House burned by the British. He would, however, live to see France desolated by revolutionary excess, a vision sufficiently horrific to make him a defender of the Constitution he was now opposing, a Constitution graced by the Bill of Rights for which he was now arguing. His fellow Virginian anti-Federalist Monroe would end up giving his name to the doctrine that opposed that threat from Europe that Henry was now prematurely dismissing.
But that Constitution might be exceedingly difficult to modify despite its deliberate design in favor of the process. The requirement for three-fourths of the states to ratify amendments means that one-fourth plus one disinclined to do so might prevent the expression of the will of the others (117). One-third plus one within Congress might even be able to prevent the very proposal of such amendments (121).
128 A trifling minority may reject the most salutary amendments.
129 Is this an easy mode of securing the public liberty?
Of course, such amendments may prove very unsalutary after all, the 18th Amendment (Prohibition) coming to mind, which was, to the detriment of public liberty, passed by the margins Henry suspects will be impossible to attain. It is difficult to find this particular fear justified by subsequent history.
He holds, on the contrary, that a simple majority of the community ought to suffice to turn over a “government…found inadequate” (134) or “oppressive” (135), a statement in favor of “democracy”(136) that the critical reader might consider somewhat at odds with his earlier insistence that the government is a function of the states, not directly of the people. Nevertheless, his point is that a determined minority might thwart the intentions of the majority, as much as an act of oppression as an expression of human freedom.
Henry returns to firmer ground in a reminder that a people disarmed and disempowered by government might find itself unable to act when the time comes.
151 Did you ever read of any revolution in a nation brought about by the punishment of those in power inflicted by those who had no power at all?
He warns of the possibility of a people denied the right to assemble, as the British have been under the Riot Act (152), of a standing army empowered to enforce such an act (154) over the fruitless objections of a disarmed militia, and most alarming of all, a government empowered to enact “direct taxation unbounded and unlimited” (159).
There is a short break in this torrent of dire prognostication, and Henry returns to his original complaint, that the Constitution will represent not a confederacy but a “national government” (176), the construction of which is quite outside the charge of the delegates to the Philadelphia Convention (177). It is the complaint that sent two of the three New York delegates flying from that Convention, leaving a disenfranchised Hamilton fuming. Henry rejects the very idea of a “consolidated” government (191). The Confederation government was fully adequate, he insists, ignoring the fact that it was deeply in debt and no longer, if the Federalist points were to be acceded to, possessing the benefit of “the respect of all Europe” as Henry states at 193.
194 The American spirit has fled from hence; it has gone to regions where it has never been expected; it has gone to the people of France in search of a splendid government, a strong, energetic government.
Henry would soon come to change his mind about that. What he saw was no “splendid” government, but a bloody chaos that would nearly execute his friend Lafayette, an equally fervent believer in the right of a people to alter its government. That would be a sobering time for those now flush with the assurance that violence in the name of liberty would always turn out as well as it had for the Americans. But Henry reminds his listeners that a preference for a consolidated government might well be a preference for empire.
198 If we admit this consolidated government, it will be because we like a great, splendid one.
204 But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire.
There was, of course, no guarantee that a confederation might not find itself in the same situation. But a deliberate choice for consolidation was, to Henry, a choice for grandeur. But this is little more than a rhetorical effort to impugn the motives of those in favor of federalism. Henry’s real objection follows in terms that make it difficult to mistake.
207 There will be no checks, no real balances, in this government.
208 What can avail your specious, imaginary balances, your rope dancing, chain rattling, ridiculous ideal checks and contrivances?
It is a shot across Madison’s bow, somewhat ameliorated by Henry’s own insistence that such a balance may be achieved by a bill of rights, particularly the Virginia version of which Henry is justifiably proud (227, 238, 243), and whose provisions he states may be circumvented under the proposed Constitution “by people who have no connection with you” (242). There is, as well, the hazard of an imperial Presidency supported by an aristocratic Congress.
246 Besides the expenses of maintaining the Senate and other House in as much splendor as they please, there is to be a great and mighty President with very extensive powers, the powers of a king.
This is once again rhetoric with a tinge of prescience, for Henry clearly knew that the first of these Presidents would be his own beloved Washington who was, and would continue to his death to be, decidedly un-kingly in pretension. It is difficult for the modern reader to fault Henry in his prediction of a Senate and House kept in self-maintained splendor, however.
Despite his earlier expressed preference for the existing government, Henry will concede certain inadequacies that have already been used by the Federalists as justification for the complete change in government that came out of the Philadelphia Convention. “I will never,” he states at 250, “give up the power of direct taxation but for a scourge.”
251 I am willing to give it conditionally, that is, after non-compliance with requisitions.
This is his answer to the straits in which the Confederation government found itself with regard to the failure of the states to provide funding adequate to keep it afloat. He will even subject his own beloved Virginia to the yoke till it “have paid the last farthing and furnished the last soldier” required of it. He is a fervent supporter of the Union, even at the expense of his state, but that expense had its limits.
254 Were all the states, more terrible than the mother country, to join against us, I hope Virginia could defend herself, but sir, the dissolution of the Union is most abhorrent to my mind.
255 The first thing I have at heart is American liberty, the second thing is American union, and I hope the people of Virginia will endeavor to preserve that Union.
The choice would turn out to be not quite so clear cut in another 75 years, but the issues would be frighteningly similar. How far should Virginia go to ensure that its failure to support would not undercut the Union? Far indeed, but not, Henry pleads, to the degree of approval of the unlimited ability of direct taxation on the part of the federal government (258).
He now turns his attention to the Judiciary, the ones he has been assured will “correct all” of the potentials for abuse of federal power (259), judges who are, he states, “dependent on Congress”. It is not one of Henry’s stronger points, that power being carefully and explicitly divested from Congress once the justices are seated and except for just cause for impeachment. Nevertheless, his vision of a federal police is disturbingly reminiscent of modern day practice, and the insulation of such enforcement officers from local accountability that is conferred by their federal status.
267 It is a fact that lands have been sold for five shillings which were worth one hundred pounds; if sheriffs, thus immediately under the eye of our state legislature and judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?
Or the “ten miles square” that was to become Washington?
Henry now summarizes his criticisms. The President is to be imbued with the powers of a king but with none of the restraints, the Senate subject to the control of a minority of its members, the forts and magazines of the states placed in federal hands, the placement of elections subject to manipulation, financial reporting unnecessarily vague, insufficient checks in the overall power of the government to expand, and a misplaced and naïve trust in the “chance of [the] rulers to be good men”. It is a stark and depressing assessment of the federal government to come.
Henry now suggests an alternative: Virginia may refuse to ratify and still participate in the Union (231), so long as she still supports the Union financially and militarily. The reader cannot help but be surprised at his naïvete on this account. He is, in fact, proposing that Virginia may have its cake and eat it too.
338 If we pay our quota of money annually and furnish our ratable number of men when necessary, I can see no danger from a rejection.
361 The other states have no reason to think from the antecedent conduct of Virginia that she has any intention of seceding from the Union or of being less active to support the general welfare.
372 But sir, I mean not to breathe the spirit nor utter the language of secession.
But there is considerable danger, after all. Nine states’ approval may place Virginia in the awkward position of rejecting not only the new Constitution but the very Confederation under whose auspices that decision was made, legitimately or not. That recognition was one factor influencing Governor Randolph to change his mind. Henry does, after all, fully recognize that, stating that it promises no less than the dissolution of the Union he loves.
351 Show me the reason why the American Union is to be dissolved.
352 Who are those eight adopting states?
353 Are they averse to give us a little time to consider before we conclude?
It is a plea for circumspection more than a plea for outright rejection. For Henry does see a route toward a messy but acceptable compromise, in the pursuit of a humble but free future.
347 No matter whether the people be great, splendid and powerful if they enjoy freedom.
348 The Turkish Grand Signior, alongside of our President, would put us to disgrace, but we should be as abundantly consoled for this disgrace when our citizens have been put in contrast with the Turkish slave.
The fact that the modern reader must refer to his encyclopedia to discover the identity of this Grand Signior to whom Henry referred only serves to make his point for him. Whether by choice or not, the modern American is surrounded by governmental splendor, but is he free? Henry’s conclusion is simply stated in a single sentence.
357 Unless the government be amended, we can never accept it.
Amended, how? Clearly in the interest of those freedoms that Henry has cited several times during this remarkable speech, that will be codified in the Bill of Rights, whose inception will provide that last impetus toward the ratification of the Constitution. There must be yet another check and balance to offset the Necessary and Proper Clause, one additional bulwark between the freedom of the individual and the determination of even a well meaning government to circumscribe it for that individual’s own good. Henry is passionately determined that in the absence of such a provision, Virginia will not move to ratify.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
20 Mar 1788, Brutus #15
21 Mar 1788, Federalist #72
21 Mar 1788, Federalist #73
25 Mar 1788, Federalist #74
26 Mar 1788, Federalist #75
1 Apr 1788, Federalist #76
4 Apr 1788, Federalist #77
10 Apr 1788, Brutus #16
Great! We’ve just hit the Constitution in our curriculum this week. Great stuff here! =)
a. Against the Constitution.
b. For the Constitution contingent on prior acceptance of amendments.
c. For the Constitution, but submit amendments in the first Congress.
d. For the Constitution without amendments.
The key to ratification was to turn those in group “b” into members of group “c.” It was an effective strategy.
Henry’s strategy was to turn those in “c” into “b.” The problem was that he overplayed his hand. His tactics did not in the end support his strategy. Instead of sticking with calm and measured appeals to improve the document, he and George Mason at times launched too many over the top, ridiculous assaults on just about every Constitutional clause. It was not what learned or experienced men expected from each either. It certainly hurt the cause of the Anti-Federalists.
Incorrect. The Constitution was ratified as submitted.
The Commission did, however, recommend, (but not insist on) a Bill of Rights. The vote was 89-79.
Yes, most of the states submitted amendments. Henry had argued the Constitution would never be amended.
VA was not in a position to insist on any of them, for near the end of the convention, the Constitution was ratified by New Hampshire, the ninth state.
Yes, and trying to put myself in the place of the delegates, I think I’d have found Henry’s argument in the matter pretty good. It applies to Congress as well, wherever there’s a supermajority requirement. There are certain amendments I wish he’d been, er, more right on, 16 through 18 coming to mind...
This speech is a classic. Along with Brutus’s best essays, it demolishes any idea that the Constitution creates a limited government.
It’s also a lot of work to set up for HTML.
The meaning of this straightforward and important enumerated power was not disputed. There was no question that irregular trade restrictions, state imposts, etc under the Articles were detrimental to commerce. If Henry and other Constitutional opponents, who saw creeping tyranny under most clauses, did not find a threat to our rights in the commerce clause, there was no threat.
Despite this, the clause was later abused by the FDR Congress and court to become the primary vehicle of Leftists to promote their wild social justice schemes. That the simple commerce clause, designed to correct a major defect of the Articles of Confederation, could be shaped into a club with which to oppress the people, shows there is no limit to what the Lefties will attempt to achieve their goals.
It is not the fault of the Framers, but rather generations of Americans in the near past and present who have allowed their representatives and courts to rewrite the Constitution
No one claimed perfection in the constitution, so amendments were to be expected. Still, these threads give little credit to the state delegates at the Philadelphia Constitutional convention who overcame immense difficulties. There were regional and state animosities we can little imagine today. Each had to show occasional deference to others, yet not to the point of making concessions that threatened their liberties.
ha! They didn’t do paragraphs like we do, that’s for sure.
Hear here!
No and Hamilton proved this by instigating the whiskey rebellion.
"Let not gentlemen be told that it is not safe to reject this government. Wherefore is it not safe? We are told there are dangers, but those dangers are ideal; they cannot be demonstrated."
I'm not sure if the knows it but he is making the case against the "Great Nationers", i.e. those who wanted America to be a great country comparable to France or England. Whenever I read one of their statements the phrase "Nations do not make one great" comes to mind. Henry should have developed this thought more. The commercial interests of Hamilton do not outweigh the danger of what ensures the maximization of our national strength. Henry covers far too many topics in this speech and would have been better to find two or three and stick to them and explain his thinking in reasonable terms. Instead he states his emotions and that does little to sway people.
"If one third of these be unworthy men....."
Henry brings up a key objection that came up during the constitutional convention, tyranny of the minority. We saw the corruption of this with the Ben Nelson's Cornhusker Kickback. If the majority really, really need a change to the constitution it enables the minority to be bribed to go along with it. That is against most every notion of how a Republic ought to work. Again though, Henry figures out the superficial problem, i.e. a minority can stop a good idea, but then fails to develop it.
My thought is that we went far enough with the Separation of Powers and the principle of negation, i.e. the Senate can ignore a law passed by the House, the President can veto it or the supreme court can strike it down and the people retain their liberty.
"the assent of the people, in their collective capacity, is not necessary to the formation of a federal government."
Okay, now he hits on one of my favorite thoughts. The constitution was, as Madison envisioned it, to be ratified by the people. The House had proportional representation, the Senate came from the House and the House appointed the President. People and Checks. Got it. Coming out of the CC, we had a Senate of the states, an Electoral College and ratification by the state governments. It's not unexpected that the large states, Virginia and New York, who had all the size they needed, had not ratified until after eight other states had. Why should they trade their satisfactory state government for an unknown Federal Government?
Henry is spot on with his observation that this is a compact between influential men from states, not the people, and that people happily living out their daily lives would ask, "Tell me again why I need a National Government?" Or as he said, "to every other member of society you will find the same tranquil ease and content; you will find no alarms or disturbances. Why, then, tell us of danger, to terrify us into an adoption of this new form of government?" I'm left wondering why we needed this Federal Government but again Henry did not go far enough with this idea.
"and that Virginia shall depend on Congress even for passports"
EVEN passports! He is hitting on my thought. One fundamental, natural, God given right is for any individual to stand up and say, "I am sick of you turkeys and going to go live in Virginia." It was this right that this new government took away because we would never be able to move away from our government without leaving America.
"The honorable gentleman has told us that these powers, given to Congress, are accompanied by a judiciary which will correct all. On examination, you will find this very judiciary oppressively constructed; your jury trial destroyed, and the judges dependent on Congress."
Truth. The forethought of Judicial Deference.
"The federal sheriff may commit what oppression, make what distresses, he pleases, and ruin you with impunity; for how are you to tie his hands? Have you any sufficiently decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: our state sheriffs, those unfeeling blood-suckers, have, under the watchful eye of our legislature, committed the most horrid and barbarous ravages on our people."
Hammer, meet nail.
"The Senate, by making treaties, may destroy your liberty and laws for want of responsibility."
The great theoretical flaw of the constitutional convention.
Later he tries to make his case against the Constitution by using Switzerland but it doesn't work.
"Remember, sir, that the number of our representatives is out ten, whereof six is a majority. Will those men be possessed of sufficient information? A particular knowledge of particular districts will not suffice. They must be well acquainted with agriculture, commerce, and a great variety of other matters throughout the continent"
No, no they would not. As it turned out our congress is made up of lawyers who know little of science or banking. Given their inability to decide these issues they have ceded their power to make laws to the Executive branch who appoint experts to make laws for them.
In the end I don't think he made his key point well enough, that the promises of a Federal Government did not outweigh the potential dangers and the government of Virgina was good enough to wait for a better constitution.
Ratification proves the point. It was a government of the states, by the states and for the states or at least for those people who attended the CC.
"Was Henry on target? Was this avoidable?"
Yes he was. The Articles of Confederation suffered from the Free Rider problem (much like Freepathons) in that a state could vote for war (or vote against it) and not help pay off the debts afterward. Yet, by compelling states to pay off national debts, it empowers the "Great Nationers" who would use the Federal Government to create a "great" nation. Was it avoidable? I don’t know. I'll think about it. We may be coming to the end of our current Federal Government (if it can't stop adding debt) and it's important that we think through this now.
"federal sheriff. Did Henry foresee the IRS long before the 16th Amendment, or did he have something else in mind?"
No! That's my thought when reading this. He said what he thought. He saw all the symptoms but failed to make clear the disease. All men are sinners, even Washington and Madison. Eventually they will sin badly and the constitution contained no correction except by amendment and that, as he points out, is subject to the will of a minority. Also, there is no punishment for the wicked (line 313). He almost goes out and puts it all together but he doesn't say that commercial interests (banks) would take away our liberties and feel free to do so without regard to punishment. Horse stealing used to be punishable by death but if the banks financially ruin our country they have no worries. He puts all the pieces out but fails to build his case in a methodical, impersonal manner without emotion.
"Henry never foresaw that bureaucrats under the Executive would eventually become the nation’s lawmakers. What would Henry propose to fix these problems today?"
Dare I say a Second Amendment remedy? Nah, that's too vitriolic. But that would take care of the moral hazard created by not punishing people who take away our liberties. Henry could be physically direct when he wanted.
"That this has happened is simply a matter of history. What could have been done to prevent this?"
Oddly enough, a stronger House of representatives. I've written before about the need for Federal Regulations carrying the power of law to be ratified by congress one by one. Now I wonder if every law should be ratified by every new congress. It surely would put the power of nullification front and center. Granted it would be practically impossible.
"Should Congress be limited as to what it can keep from the people whom they represent?"
Limited but then again, wikileaks makes the alternative case. Unfortunately this one is a matter of judgment and only those who know the secrets can say if they should not be secret.
"Is this something that needs to be fixed?"
Not yet but if our country financially fails then our Senate, with the President, could end our form of government.
"Would the federal government have been more prone to the destruction of liberty in the absence of the Bill of Rights than with it? How long would it have taken for it to reach the current state of liberty or lack thereof? "
Can't say. This is a theoretical. Unfortunately the Bill of Rights has given activist judges the ability to extend law rather than negate it. Then again the First and Second Amendments remain fairly powerful magic against those who would take away our liberty.
Those are the thoughts off the top of my head, for what they are worth.
To your point, many normally think of the slave holding states to be one uniform entity. Yet even Virgina and Georgia found it difficult to agree to a common position on slavery as Georgia required additional slaves (they would die in the humid south) and did not want to become dependent on Virginia which had a surplus of slaves.
Henry was a talented lawyer and the best orator of his age. He put both to use in order to sabotage national relief from the awful Articles. In classic lawyer fashion:
1. Contest the standing of the opposing party. The Virginia Assembly provided for delegates to discuss alterations to the Articles. The Constitution was not the Articles. According to Henry, the VA ratifying convention was therefore illegitimate.
2. Reject the basis of the plaintiff’s suit, throw it out. Henry denied problems even existed under the Articles in Virginia. Why should Virginians care about conditions in other states? Thus, there is no reason for VA to consider a replacement of the Articles.
Various delegates to the VA ratifying convention described serious difficulties under the the Articles. Henry's claim of "no problem" did not get very far.
Jacquerie insightfully said, “Henry was a talented lawyer and the best orator of his age.”
I’ve always read as such and I’m sure what you are saying is true. However, Henry understood what this Federal Government was and he knew the cast of characters involved. I think he needed to make his case clearer and more objective while at the same time taking possibilities through to certainties.
Of course, even Henry didn’t *know* that Hamilton would be the first Secretary of the Treasury, nationalize the State debts to form a financial system, would decide not to tax his own rum producing friends further (Hamilton was West Indian-New York Banker), would tax the Westerners with a whiskey tax that exempted large producers in the East then make insulting statements driving a popular revolt into open rebellion that had to be suppressed by this new Federal Government taking charge of state militias. I think if Henry had been more clear and taken further hold of the idea that one day that Federal Government MUST be run by sinners, he would have made a better case. As the commentary shows, he knew what the problems were with the Constitution but he failed to drive his point home.
Imagine what would have happened if he had laid out the details, personified this issue and said “General Washington will choose men he trusts and he trusts Hamilton in financial matters above all others. Let us examine what that snake in the grass will do if given the financial power of this Federal Government. . . .”
Publius, I remember it being discussed in the CC but what do you think would have happened if only New York and Virginia failed to ratify the constitution? Would it have survived with eleven states or would they have had to start over? I think ten could have bullied RI into ratification but not New York nor Virginia.
With power goes the possibility of corruption. Ben Franklin at the CC wanted to see limits on compensation of federal officials because men will move heaven and earth for money, love and power, and especially when money and power are combined.
As for Henry’s criticisms, had Henry bothered to do his duty and attend the Philadelphia Constitutional convention, there is no telling what positive influence he could have had. It is quite possible if not probable the taxing power and Article III would be different.
IIRC, he was also offered and declined the seat of Chief Justice of the United States. If he truly wished to protect the liberty of the people, he missed a superb opportunity.
Exactly. Henry could have made the case that corrupt men would certainly one day be in charge of the Federal Government. All we have seen since could have then been predicted with certainty from his understanding alone.
As for Henry’s criticisms, I think we agree. He comes across to me as someone who thinks that taking care of themselves and expressing their opinions of others is enough. Eventually he could not turn away from the Constitution. He should have taken some responsibility for shaping it. He was not just a victim.
I think that’s an important lesson when Conservatives pick their next presidential candidate. We need someone who has proven they can figure out what needs to be done and do it rather than just criticize the efforts of others.
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