“A general positive provision should be inserted in the new system, securing to the States and the people every right which was not conceded to the general government.” “I trust that gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper.” “Mr. Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before. I have observed already that the sense of European nations, and particularly Great Britain, is against the construction of rights being retained which are not expressly relinquished. I repeat, that all nations have adopted the construction, that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from delegated powers.… Let us consider the sentiments [Pg 326] which have been entertained by the people of America on this subject. At the Revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.… She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon. She is called upon now to abandon them, and dissolve that compact which secured them to her.… Will she do it? This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.… If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw,—a government that has abandoned all its powers,—the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers—pointed where? Pointed against your weakened, prostrated, enervated, state government! You have a bill of rights to defend you against the state government—which is bereaved of all power, and yet you have none against Congress—though in full and exclusive possession of all power. You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?”[381]
[Pg 327] Again and again, in response to his demand for an express assertion, in the instrument itself, of the rights of individuals and of States, he was told that every one of those rights was secured, since it was naturally and fairly implied. “Even say,” he rejoined, “it is a natural implication,—why not give us a right … in express terms, in language that could not admit of evasions or subterfuges? If they can use implication for us, they can also use implication against us. We are giving power; they are getting power; judge, then, on which side the implication will be used.” “Implication is dangerous, because it is unbounded; if it be admitted at all, and no limits prescribed, it admits of the utmost extension.” “The existence of powers is sufficiently established. If we trust our dearest rights to implication, we shall be in a very unhappy situation.”[382]
Then, in addition to his objections to the general character of the Constitution, namely, as a consolidated government, unrestrained by an express guarantee of rights, he applied his criticisms in great detail, and with merciless rigor, to each department of the proposed government,—the legislative, the executive, and the judicial; and with respect to each one of these he insisted that its intended functions were such as to inspire distrust and alarm. Of course, we cannot here follow this fierce critic of the Constitution into all the detail of his criticisms; but, as a single example, we may cite a [Pg 328] portion of his assault upon the executive department,—an assault, as will be seen, far better suited to the political apprehensions of his own time than of ours:—
“The Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy. And does not this raise indignation in the breast of every true American? Your president may easily become king.… Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men. And, sir, would not all the world, from the eastern to the western hemispheres, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty.… If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands; and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design. And, sir, will the American spirit solely relieve you when this happens? I would rather infinitely—and I am sure most of this convention are of the [Pg 329] same opinion—have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.… Will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your president! we shall have a king. The army will salute him monarch. Your militia will leave you, and assist in making him king, and fight against you. And what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?”[383]
Without reproducing here, in further detail, Patrick Henry’s objections to the new Constitution, it may now be stated that they all sprang from a single idea, and all revolved about that idea, namely, that the new plan of government, as it then stood, seriously endangered the rights and liberties of the people of the several States. And in holding this opinion he was not at all peculiar. Very many of the ablest and noblest statesmen of [Pg 330] the time shared it with him. Not to name again his chief associates in Virginia, nor to cite the language of such men as Burke and Rawlins Lowndes, of South Carolina; as Timothy Bloodworth, of North Carolina; as Samuel Chase and Luther Martin, of Maryland; as George Clinton, of New York; as Samuel Adams, John Hancock, and Elbridge Gerry, of Massachusetts; as Joshua Atherton, of New Hampshire, it may sufficiently put us into the tone of contemporary opinion upon the subject, to recall certain grave words of Jefferson, who, watching the whole scene from the calm distance of Paris, thus wrote on the 2d of February, 1788, to an American friend:—
“I own it astonishes me to find such a change wrought in the opinions of our countrymen since I left them, as that three fourths of them should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. That is a degeneracy in the principles of liberty, to which I had given four centuries, instead of four years.”[384]
Holding such objections to the proposed Constitution, what were Patrick Henry and his associates in the Virginia convention to do? Were they to reject the measure outright? Admitting that it had some good features, they yet thought that the best course to be taken by Virginia would be to [Pg 331] remit the whole subject to a new convention of the States,—a convention which, being summoned after a year or more of intense and universal discussion, would thus represent the later, the more definite, and the more enlightened desires of the American people. But despairing of this, Patrick Henry and his friends concentrated all their forces upon this single and clear line of policy: so to press their objections to the Constitution as to induce the convention, not to reject it, but to postpone its adoption until they could refer to the other States in the American confederacy the following momentous proposition, namely, “a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the undeniable rights of the people, together with amendments to the most exceptionable parts of the said constitution of government.”[385]
Such, then, was the real question over which in that assemblage, from the first day to the last, the battle raged. The result of the battle was reached on Wednesday, the 25th of June; and that result was a victory for immediate adoption, but by a majority of only ten votes, instead of the fifty votes that were claimed for it at the beginning of the session. Moreover, even that small majority for immediate adoption was obtained only by the help, first, of a preamble solemnly affirming it to be the understanding of Virginia in this act that it retained every power not expressly granted to the [Pg 332] general government; and, secondly, of a subsidiary resolution promising to recommend to Congress “whatsoever amendments may be deemed necessary.”
Just before the decisive question was put, Patrick Henry, knowing that the result would be against him, and knowing, also, from the angry things uttered within that House and outside of it, that much solicitude was abroad respecting the course likely to be taken by the defeated party, then and there spoke these noble words:—
“I beg pardon of this House for having taken up more time than came to my share, and I thank them for the patience and polite attention with which I have been heard. If I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. My head, my hand, and my heart shall be at liberty to retrieve the loss of liberty, and remove the defects of that system in a constitutional way. I wish not to go to violence, but will wait, with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the Revolution yet lost. I shall therefore patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness of the people.”[386]