Eight States had already adopted the Constitution. The five States which had yet to act upon the question were New Hampshire, Rhode Island, New York, North Carolina, and Virginia. For every reason, the course then to be taken by Virginia would have great consequences. Moreover, since the days of the struggle over independence, no question had so profoundly moved the people of Virginia; none had aroused such hopes and such fears; none had so absorbed the thoughts, or so embittered the relations of men. It is not strange, therefore, that this convention, consisting of one hundred and seventy members, should have been thought to represent, to an unusual degree, the intelligence, the character, the experience, the reputation [Pg 319] of the State. Perhaps it would be true to say that, excepting Washington, Jefferson, and Richard Henry Lee, no Virginian of eminence was absent from it.
Furthermore, the line of division, which from the outset parted into two hostile sections these one hundred and seventy Virginians, was something quite unparalleled. In other States it had been noted that the conservative classes, the men of education and of property, of high office, of high social and professional standing, were nearly all on the side of the new Constitution. Such was not the case in Virginia. Of the conservative classes throughout that State, quite as many were against the new Constitution as were in favor of it. Of the four distinguished citizens who had been its governors, since Virginia had assumed the right to elect governors,—Patrick Henry, Jefferson, Nelson, and Harrison,—each in turn had denounced the measure as unsatisfactory and dangerous; while Edmund Randolph, the governor then in office, having attended the great convention at Philadelphia, and having there refused to sign the Constitution, had published an impressive statement of his objections to it, and, for several months thereafter, had been counted among its most formidable opponents. Concerning the attitude of the legal profession,—a profession always inclined to conservatism,—Madison had written to Jefferson: “The general and admiralty courts, with most of the bar, oppose the Constitution.”[373] Finally, among [Pg 320] Virginians who were at that time particularly honored and trusted for patriotic services during the Revolution, such men as these, Theodoric Bland, William Grayson, John Tyler, Meriwether Smith, James Monroe, George Mason, and Richard Henry Lee, had declared their disapproval of the document.
Nevertheless, within the convention itself, at the opening of the session, it was claimed by the friends of the new government that they then outnumbered their opponents by at least fifty votes.[374] Their great champion in debate was James Madison, who was powerfully assisted, first or last, by Edmund Pendleton, John Marshall, George Nicholas, Francis Corbin, George Wythe, James Innes, General Henry Lee, and especially by that same Governor Randolph who, after denouncing the Constitution for “features so odious” that he could not “agree to it,”[375] had finally swung completely around to its support.
Against all this array of genius, learning, character, logical acumen, and eloquence, Patrick Henry held the field as protagonist for twenty-three days,—his chief lieutenants in the fight being Mason, Grayson, and John Dawson, with occasional help from Harrison, Monroe, and Tyler. Upon him alone fell the brunt of the battle. Out of the twenty-three days of that splendid tourney, there were but five days in which he did not take the [Pg 321] floor. On each of several days he made three speeches; on one day he made five speeches; on another day eight. In one speech alone, he was on his legs for seven hours. The words of all who had any share in that debate were taken down, according to the imperfect art of the time, by the stenographer, David Robertson, whose reports, however, are said to be little more than a pretty full outline of the speeches actually made: but in the volume which contains these abstracts, one of Patrick Henry’s speeches fills eight pages, another ten pages, another sixteen, another twenty-one, another forty; while, in the aggregate, his speeches constitute nearly one quarter of the entire book,—a book of six hundred and sixty-three pages.[376]
Any one who has fallen under the impression, so industriously propagated by the ingenious enmity of Jefferson’s old age, that Patrick Henry was a man of but meagre information and of extremely slender intellectual resources, ignorant especially of law, of political science, and of history, totally lacking in logical power and in precision of statement, with nothing to offset these deficiencies excepting a strange gift of overpowering, dithyrambic eloquence, will find it hard, as he turns over the leaves on which are recorded the debates of the Virginia convention, to understand just how such a person could have made the speeches which are there attributed to Patrick Henry, or how a mere rhapsodist could have thus held his ground, in close [Pg 322] hand-to-hand combat, for twenty-three days, against such antagonists, on all the difficult subjects of law, political science, and history involved in the Constitution of the United States,—while showing at the same time every quality of good generalship as a tactician and as a party leader. “There has been, I am aware,” says an eminent historian of the Constitution, “a modern scepticism concerning Patrick Henry’s abilities; but I cannot share it.… The manner in which he carried on the opposition to the Constitution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence.”[377]
But, now, what were Patrick Henry’s objections to the new Constitution?
First of all, let it be noted that his objections did not spring from any hostility to the union of the thirteen States, or from any preference for a separate union of the Southern States. Undoubtedly there had been a time, especially under the provocations connected with the Mississippi business, when he and many other Southern statesmen sincerely thought that there might be no security for their interests even under the Confederation, and that this lack of security would be even more glaring and disastrous under the new Constitution. Such, for example, seems to have been the opinion of Governor Benjamin Harrison, as late as October the 4th, 1787, on which date he thus wrote to [Pg 323] Washington: “I cannot divest myself of an opinion that … if the Constitution is carried into effect, the States south of the Potomac will be little more than appendages to those to the northward of it.”[378] It is very probable that this sentence accurately reflects, likewise, Patrick Henry’s mood of thought at that time. Nevertheless, whatever may have been his thought under the sectional suspicions and alarms of the preceding months, it is certain that, at the date of the Virginia convention, he had come to see that the thirteen States must, by all means, try to keep together. “I am persuaded,” said he, in reply to Randolph, “of what the honorable gentleman says, ‘that separate confederacies will ruin us.’” “Sir,” he exclaimed on another occasion, “the dissolution of the Union is most abhorrent to my mind. The first thing I have at heart is American liberty; the second thing is American union.” Again he protested: “I mean not to breathe the spirit, nor utter the language, of secession.”[379]
In the second place, he admitted that there were great defects in the old Confederation, and that those defects ought to be cured by proper amendments, particularly in the direction of greater strength to the federal government. But did the proposed Constitution embody such amendments? On the contrary, that Constitution, instead of properly amending the old Confederation, simply annihilated [Pg 324] it, and replaced it by something radically different and radically dangerous.
“The federal convention ought to have amended the old system; for this purpose they were solely delegated; the object of their mission extended to no other consideration.” “The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates who were sent to Philadelphia a power to propose a consolidated government, instead of a confederacy?” “Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the States will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, so inconsiderately by others.” “A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality. If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the state governments, and swallow the liberties of the people, without giving previous notice. If gentlemen are willing to run the hazard, let them run it; but I shall exculpate myself by my opposition and monitory warnings within these walls.”[380]
[Pg 325] But, in the third place, besides transforming the old confederacy into a centralized and densely consolidated government, and clothing that government with enormous powers over States and over individuals, what had this new Constitution provided for the protection of States and of individuals? Almost nothing. It had created a new and a tremendous power over us; it had failed to cover us with any shield, or to interpose any barrier, by which, in case of need, we might save ourselves from the wanton and fatal exercise of that power. In short, the new Constitution had no bill of rights. But “a bill of rights,” he declared, is “indispensably necessary.”