Friday, May 3, 2019

Speech to the Virginia Ratifying Convention, Part I: Context

As the last several weeks have hopefully served to reiterate, conservative opposition to innovations in policy and law – to the point, even, of suspicion and paranoia – can be, and has been, an exceedingly useful aspect of a robust discourse within the context of American political culture. Certainly within the context of the American Founding, the arguments of people like Samuel Bryan (1759-1821) – author of the Anti-Federalist essay series published under the name Centinel – have served to strengthen the ability of successive governments to adequately preserve and promote the liberties of the American people by encouraging grounded discussions about concepts like authority, trust, sovereignty, and legitimacy. The efforts in question did not always succeed in holding back the tide of change. Bryan and his fellow Anti-Federalists, writing under pennames like Cato, Brutus, and Federal Farmer, notably failed to defeat the ratification of the United States Constitution over the course of 1787 and 1788. But the degree to which they managed to encourage closer scrutiny of the subject at hand by drawing the attention of an otherwise unconcerned public to some of the more troubling implications of the proposed national government would seem to have more than justified their various exertions.

Consider, to that end, the Bill of Rights. Had men like Samuel Bryan, Melancton Smith (1744-1798), and Robert Yates (1738-1801) refrained from pointing out the danger posed to their countrymen by the absence of any federal guarantee that the fundamental rights of the American people would be respected, the proposed national government may well have been permitted to come into existence lacking the various safeguards which subsequent generations have rightly come to characterize as being essential to their liberty. Imagine a United States Government not bound by law to observe the right of free expression, or free assembly, or freedom of the press. Consider the potential outcome of an American judicial system in no way obligated to respect individual privacy, or to refrain from levying excessive bail or fines. This is the value of vigilance, skepticism, and even distrust within the realm of public policy. By pointing out the abuses which may have resulted from the creation of a government not formally required to pay heed to the civil liberties of its constituents, the Anti-Federalists ensured that the administrative framework which was subsequently adopted – and which remains in force to this day – was far less likely to devolve into the kind of tyrannical authority they collectively feared would be the case. That being said, their efforts did at times stray into the realm of hysteria and alarmism, to the point that certain of the scenarios they described in their respective treatises were improbable in the extreme. But there was a kind of logic to this as well. The degree to which they were able to garner the attention of their fellow citizens at a time when printing presses across the nascent American republic were churning out pamphlets, broadsides, and essays for and against the proposed constitution was doubtless to some extent proportional to the emotional response their efforts were able to elicit. A sober, even-handed critique of the various shortcomings of the document in question may have been easily lost amidst the tumult. But a forceful warning of the dangers posed to the American people by the creation of consolidated national government, delivered with all the flourishes that the art of rhetoric could provide? Not only was something like that far more likely to move copies, but it was also far more likely to get those who read it to consider whether they truly had something to fear or not.

Bearing all of this in mind – and because sometimes we must manufacture excuses to talk about the things we want to talk about – the series which follows will consider another such effort at principled paranoia within the realm of the American Founding. The author in question is in this case one Patrick Henry (1736-1799) – he of “Give me Liberty or give me Death” – and the document less a treatise than the written transcript of a speech. Having refused, on principle, to take part in the Philadelphia Convention (1787) in spite of being selected by the government of Virginia to attend, Henry accordingly played no part in drafting the original text of the United States Constitution. He did, however, agree to represent Prince Edward County at the convention held in his home state (June 2nd – 27th, 1788) for the purpose of ratifying or rejecting the same. It was there, addressing his fellow Virginians as they set themselves to the task of examining every article, section, and clause of the proposed constitution in detail, that Henry delivered one of the last great speeches in a career defined by great speeches. At times, over the course of this oration, he was self-deprecating. At times he seemed animated by a kind of patriotic ardor. At times he even said things that were manifestly untrue. But at no point amidst the cajoling and the doom-saying, the entreaties and the embellishments, did it ever appear as though Patrick Henry believed the case he was making was anything other than just and proper. In consequence, while it is important when rereading the address in question to maintain a degree of skepticism as to the veracity of certain of the more grandiose claims therein, the document is nevertheless worthy of thoughtful consideration. The degree to which Henry threw his weight as an orator against the ratification of the proposed constitution speaks to the concern which the proposition of an empowered national government aroused in one of American liberty’s staunchest and loudest defenders. The resulting sturm and drang may have risen at times almost to the level of parody, but the sincerity of the effort would seem as relevant under the circumstances as the substance thereof, and now and then Henry – that master incendiary – even managed to make a critically incisive point. 

But first, of course, we must begin at the beginning. The story of Henry’s life, it turns out, was both typical and atypical of the class and community to whom he belonged, blending elements both of substantial privilege and hard-won success. Consider, to that end, his family situation. Born in 1736 in Hanover County to Scottish immigrant John Henry – who had attended King’s College in his native Aberdeenshire and came to Virginia in the 1720s – and wealthy Virginia widow Sarah Syme, young Patrick was undeniably blessed to have enjoyed the benefit of his mother’s abundant resources at the same time that he was destined to carve a path in the world for himself. His father being a man of limited means, and his elder half-brother John Syme Jr. standing to inherit their mother’s estate, Henry was unable to rely upon the luxury and ease that had been provided him in his youth, bouncing instead from one vocation to another until at least the early 1760s. Having served, for instance, as a clerk for a local merchant at the age of fifteen, he next began an ill-fated retail venture with his brother William the following year, received a dowry of six slaves and three hundred acres upon his marriage to Sarah Shelton in 1754, abandoned the resulting farmstead in spite of several hard years spent attempting to make it profitable after the main house burned down, and ultimately found himself tending patrons and playing the fiddle in the Hanover Tavern at the behest of its owner – and Henry’s his father-in-law – John Shelton. Of note during this period in his life – in particular for the way it illustrates the difference in circumstances between Henry and the kind of men whom posterity would record as his contemporaries – was a passing encounter that occurred in 1759.

A young man of seventeen stopped at the Hanover Tavern on the way from his home in Orange County to the colonial capital in Williamsburg where he was attending classes at the College of William & Mary. Though this youthful traveler – one Thomas Jefferson (1744-1826) – was eight years Henry’s junior, he owned more property and was on his way to attaining a better education than had yet been possible for young Patrick. In spite of such manifest differences in their material circumstances, however, Jefferson and Henry were nevertheless bound for the same arena: the law would provide them both with steady employment and carry them both from provincial obscurity to national prominence. But whereas Jefferson studied with George Wythe (1726-1806), one of the wealthiest and most prominent lawyers in the colony, Henry saw to his own education, applied to the colonial bar after as little as one month of study, and was licensed to practice law in Virginia by April, 1760. Thereafter establishing a practice in his native Hanover County, he soon made a name for himself as both a talented orator and a something of a political firebrand. The single case which effectively established this reputation was the final stage of the so-called “Parson’s Cause,” a political controversy that had been unfolding in Virginia since the middle 1750s and which concerned – in effect – the relationship between the colonial government and the British Crown.

The Church of England being the established faith in the Province of Virginia, members of the Anglican clergy residing within that jurisdiction were accordingly entitled to public support. While the resulting appropriations has previously been paid out in cash, the scarcity of hard currency and the rise in the price of the colony’s staple crop that had each commenced at the end of the 1740s led the Virginia House of Burgesses to mandate in 1748 that clergymen would thereafter be entitled to sixteen thousand pounds of tobacco per year. This remained a mutually-acceptable substitute for cash payments for the better part of the decade that followed, at which point another period of drought increased the price of tobacco yet again. Formerly valued at two pence per pound, the cost rose during the period of 1755-1758 to six pence per pound, resulting in the passage of the so-called “Two-Penny Acts” by the colonial assembly which substituted two pence per pound payments for the relevant commodity allocations. Though intended as a temporary measure – valid until such time as the price of tobacco returned to pre-drought levels – Virginia’s Anglican clergy did not react kindly to the evident slashing of their wages, and they accordingly appealed to the Crown for relief. George III (1738-1820) responded by authorizing the Board of Trade – a committee within the Privy Council responsible for colonial affairs – to overturn the Two-Penny Acts, thus permitting the offended clergymen to sue for their supposedly absconded back pay.

Of the five cases thereafter filed, only one met with a successful verdict. Reverend James Maury (1717-1769) was deemed a valid complainant by the judiciary of Virginia, who subsequently empanelled a jury in early December, 1763 for the purpose of determining and awarding damages. Maury retained Peter Lyons (1734-1809), future Chief Justice of Virginia, as his counsel. Hanover County contracted a young, self-taught lawyer named Patrick Henry to plead its case. Standing before the assembled jurors, opposing counsel, Rev. Maury, and the presiding judge – and having listened as Lyons spoke glowingly and at length of the importance of the clergy to the culture and society of Virginia – Henry proceeded to take almost complete control of what would have otherwise been a relatively routine proceeding. In a soon-to-be characteristic maneuver, he first effectively abandoned the question of damages – which is to say, the question that the entire hearing had been convened to answer – and began instead to re-litigate the issue that Maury’s successful suit had otherwise settled. The purpose of the Two-Penny Acts, Henry affirmed, had not been to punish the Anglican clergymen residing in Virginia, but rather to provide a degree of necessary relief to the government responsible for supporting their material existence and to the people from whom that support was due. By overturning these measures, the Crown had thus effectively declared that its own prerogatives were of greater legal significance than the needs of the people whose collective sovereignty was embodied in the membership of the House of Burgesses.

Henry went on to conclude, employing language which would likewise become wholly characteristic of his approach to public discourse, “That a King, by disallowing Acts of this salutary nature, from being the father of his people, degenerated into a Tyrant and forfeits all right to his subjects' obedience.” Though accused by opposing counsel of behaving in a treasonous fashion by thus denigrating the behavior of a sitting monarch, Henry was nonetheless permitted to continue his petition. Rev. Maury, he avowed, had to be made an example of, lest others imitate his attempt to extort the people of Virginia. Henry accordingly insisted that damages be set at no more than one farthing – i.e. one quarter of a penny. Though the jury, after a brief deliberation, ultimately determined to increase the reward owed to Rev. Maury beyond what Henry had suggested, the message which he had intended to be delivered was most definitely preserved. Given one penny for his troubles, Maury’s case was deemed settled and Patrick Henry was hailed as a hero.
Having thus established a name for himself as a defender of colonial liberties against the traditional prerogatives of the British Crown, the next decade of Henry’s life and career perhaps inevitably drew him into the emerging debate at the center of the Anglo-American crisis of the 1760s and 1770s. In 1765, now representing Louisa County in the House of Burgesses, he once again found himself railing against the very notion that Parliament had a constitutional right to levy taxes upon the inhabitants of British North American, this time in the context of the recently-passed Stamp Act. The resulting Virginia Stamp Act Resolves, which Henry introduced, notably stated that,

The General Assembly of this Colony have the only and exclusive Right and Power to lay Taxes and Impositions upon the inhabitants of this Colony and that every Attempt to vest such Power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.

Though this text was later expunged from the version of the Resolves ultimately adopted by the House of Burgesses – thanks, it would seem, to Henry’s momentary absence from the chamber – it was restored when the document was reprinted in newspapers outside of Virginia and in Britain proper. Thus, at a leap, Henry’s reputation expanded from merely that of provincial Virginia rabble-rouser to internationally famous advocate of the rights of British America.

            The next several years were something of a whirlwind in the lives of Patrick Henry and colonial Virginia, as a campaign of relatively measured dissent against institutional authority gave way to what was in effect a form of political insurrection. Having spent the latter half of the 1760s outside of the political arena – thanks in part to the efforts of Governor Francis Fauquier (1703-1768) to sideline the increasingly radical House of Burgesses – Henry returned to the public stage in 1773 when he helped draft a petition against the actions of recently-appointed Governor John Murray, 4th Earl of Dunmore (1730-1809). When Murray next attempted to dissolve the House of Burgesses in response to Henry’s attempt in June, 1774 to secure a vote of sympathy on behalf of the city of Boston in response to the passage of the Intolerable Acts, Henry and his colleagues reconstituted themselves at the nearby Raleigh Tavern as a kind of shadow government known as the Virginia Convention. At the first meeting of this body in August, 1774, Henry was selected, along with the likes of George Washington (1732-1799) and Benjamin Harrison (1726-1791), to attend the First Continental Congress (September 5th – October 26th, 1774) as one of Virginia’s seven delegates. While his consequent service in Philadelphia was relatively uneventful – his aggressive temperament led to many of his efforts being sidelined or ignored by the body’s comparatively moderate leadership – the numerous occasions during which he rose to speak yet further burnished his already lustrous reputation for oratorical brilliance. The secretary of the Congress, Pennsylvania delegate Charles Thompson (1729-1824) notably recorded at the time that, in spite of Henry’s modest appearance, the Virginian, “Evinced such [an] unusual force of argument, and such novel and impassioned eloquence as soon electrified the whole house. Then the excited inquiry passed from man to man ... 'Who is it? Who is it?' The answer from the few who knew him was, it is Patrick Henry.” The events of 1775 would amply prove out the justice of this impression.

                       Having returned to Virginia in October, 1774 and stood for election in Hanover County for the second session of The Virginia Convention the following spring, Patrick Henry was in attendance when that same body met to discuss the drafting of a petition aimed at disputing recent British actions in America. Doubtless eager to shift the discussion away from reconciliation and towards the position which he had at that point been advocating for the better part of a decade – i.e. that no one could make law for the colonies but the colonial assemblies – Henry proceeded to offer a series amendments intended to authorize the raising of a colonial militia wholly independent of royal authority. His more moderate colleagues consequently accused him of attempting to foment armed conflict, to which Henry responded, on March 23rd, 1775, with what would become the most famous speech of his entire political career. “It is in vain, sir, to extenuate the matter,” Henry avowed.

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Though the amended motion was passed and Henry was made chairman of the committee responsible for organizing an independent militia, the true effectiveness of the “Give me Liberty or Give me Death” speech almost certainly lay in the degree to which it roused the sentiments of those who heard it. Whatever Henry’s actual words may have been, men in attendance like Edmund Randolph (1753-1813), Edward Carrington (1748-1810), and Thomas Marshall (1730-1802) reported being alternately thunderstruck, awed, and rendered speechless. Marshall in particular was said to have informed his son, future Chief Justice of the United States John Marshall (1755-1835) that Henry’s speech represented, “One of the most bold, vehement, and animated pieces of eloquence that had ever been delivered.”
     
The remainder of the 1770s was someone more tumultuous for Henry than this kind of response would seem to indicate. Governor Dunmore, it seemed, had also heard tell of Henry’s speech, and marked well the objective in whose support it had been delivered. Intent on cutting off the potential effectiveness of an independent militia, Dunmore ordered a contingent of Royal Marines stationed in Williamsburg to seize the local powder stores on April 21st, 1775. Henry postponed his departure for Philadelphia to take up his seat in the Second Continental Congress when news of this incident reached him in Hanover County, took command of the local militia, and proceeded to lead them on a march to Williamsburg. While Henry’s force drew in volunteers as it travelled – thanks in no small part to news of the Battles of Lexington and Concord (April 19th, 1775) finally arriving in Virginia – it was ultimately stopped and turned back some sixteen miles from the colonial capital. Eager to preserve the possibility of reconciliation, certain of Henry’s fellow delegates to the Continental Congress convinced him to abandon his campaign to occupy Williamsburg and continue on to Philadelphia in their company once it became clear that the absconded powder would be paid for. Two further events in 1775 and 1776 likewise serve to solidify the impression that this incident had arguably made manifest, namely that Henry’s colleagues in Virginia were not always as supportive of his actions as they were awestruck by his words. The first came in September, 1775, when Henry was appointed Commander-in-Chief of the Virginia militia. In this role, though the value of his reputation was much appreciated in the way it supported recruitment, it was hoped by the leadership of the Virginia Convention that Henry’s more radical tendencies would be constrained by the necessities of civilian oversight and the organizational burdens of command.

Just so, when it came time to elect the state’s first post-independence governor in June, 1776, Henry was the overwhelming choice of his fellow delegates. That this in fact represented a slight owed to the nature of the office. Henry had vigorously advocated during the drafting of the Virginia Constitution in favor of a strong, independent chief executive capable of acting with dispatch and efficiency during a time of war. The primary author of what would ultimately prove to be the accepted draft, George Mason (1725-1792), disagreed. Owing to the disdain with which many in Virginia – Henry included – had come to regard Lord Dunmore, his immediate predecessors, and the British Crown, Mason and his supporters concluded that a weak governor and an empowered legislature represented by far the preferable balance of institutional power. It doubtless also crossed their minds that giving Henry what he wanted would almost certainly result in his gaining the power they most feared in his hands. An active, popularly-elected governorship would almost certainly have fallen to Henry if put to a vote. Thus empowered, Mason and his cohorts surely asked themselves, what might be the result? Being an advocate of religious freedom, would Henry attempt to disestablish the Anglican Church? Being an avowed critic of slavery – though also a slaveholder himself – would he attempt in some way to limit the practice or abolish the trade? While such radical actions would doubtless have appeared to most people imprudent while their country was entering into a war for its very existence, Henry had yet to demonstrate that prudence was a trait he either possessed or much respected. Better, Mason and his cohorts therefore concluded, to vest the greater share of power in a body which more accurately represented the needs and priorities of Virginia as a whole. And better yet, so long as the office of chief executive was intended to be a weak and subordinate one, to award that same office to the man whose fame and fervor gave them such cause to fear. Provided that he accepted the honor – such as it was – Henry’s reputation would do much to encourage respect for the new administration without easily enabling him to successfully overthrow or subvert it.

The three terms which Henry proceeded to serve as Virginia’s first post-independence governor were accordingly something of a struggle. Unable to exert his authority over that of the General Assembly, he was forced instead to leverage his popularity and his command of the state militia to accomplish what little he could on behalf of the ongoing American war effort. Recruitment, for instance, remained a persistent problem throughout the Revolutionary War, as Henry’s fellow Virginian – and the Commander-in-Chief of the Continental Army – George Washington (1732-1799) well attested. While Henry could and did make use of his reputation in attempting to shore up the resulting manpower shortages, he could do nothing to alter the terms of enlistment without legislative support. Instead, perhaps seeking a victory that would inspire more than it actually effected, he dispatched an expedition in 1777 to capture the British settlement of Kaskaskia – now in Illinois, then in the vaguely-defined backwoods of Kentucky. Led by George Rogers Clark (1752-1818), the resulting campaign was a resounding success, managing to disrupt Britain’s hold on the Old Northwest and permitting Henry to claim the expansion of Virginia’s territorial boundaries as far west as Lake Michigan. The elation which followed this victory did not last long, however. Early in May, 1779, despite Henry having appealed to Congress for naval protection in Chesapeake Bay, a squadron under Sir George Collier (1738-1795) landed British troops at Portsmouth and Suffolk. Over the course of the week that followed, the invaders raided repeatedly and destructively up and down the coast, destroying up to one millions dollars’ worth of valuable war materials. Though Henry could hardly be blamed for the occurrence – defense spending falling firmly within the purview of the General Assembly – it was nonetheless telling that his first stint as governor should have ended with such ignominy. In the far West, where no Virginians actually lived, he had helped to push the claims of his country farther than ever before. And in the East, on the densely-populated Chesapeake coast, he had witnessed the destruction of whole communities.
     
Henry’s second stint as Governor, following a relatively uneventful interim between 1779 and 1784, ultimately proved to be about as successful as the first. An attempt to consolidate control over the various county militias – remarkably in cooperation with the General Assembly – failed when the counties themselves refused to comply with what they deemed to be a series of unconstitutional officer appointments. The law which terminated all existing commissions – thus permitting Henry to fill every command-level vacancy at once – was widely disregarded, and Henry requested that the General Assembly repeal it in October, 1785. During that same year, statesman and solider Arthur Campbell (1743-1811) called for the separation of Washington Country from Virginia as part of the formation of the proposed State of Franklin – a saga whose circumstances have been discussed in weeks past. Henry responded by at once calling for leniency on behalf of the inhabitants of the region in question – the economy had not been kind to them, he affirmed, and their anxiety was being taken advantage of – and authorizing the passage of legislation making it a treasonous act to form a rival government within the boundaries of Virginia. The relatively peaceful conclusion of the Franklin crisis precluded the enforcement of the resulting Treason Act, however, and Henry’s final year in office thereafter proceeded rather sleepily to its conclusion in November, 1786. 

            The period from 1787 to 1790 witnessed both Henry’s final stint as an elected official – in this case serving as the representative of Prince Edward County in the House of Delegates – and one of the last occasions during which his famed eloquence was given free reign before an assembly of his peers. The Annapolis Convention (September 11-14, 1786), to which he had sent a delegation, had concluded its efforts to reform the Articles of Confederation by calling for a second meeting of the states in Philadelphia in the summer of 1787. Though Henry rejected the offer tendered by his successor as Governor – the aforementioned Edmund Randolph – to attend the latter event as one of Virginia’s delegates, it was nevertheless hoped by several of his countrymen who had agreed to make the journey to Pennsylvania – namely George Washington and James Madison – that the ultimate product of their efforts would garner his support. Unbeknownst to the governments that had dispatched them, it seemed, the attendees of the Philadelphia Convention had very quickly agreed to abandon any attempt to amend the aforementioned Articles and instead draft a wholesale replacement in the form of a federal constitution. Being an avowed supporter of national unity during his service as Governor, Henry was thought by his cited colleagues to be a likely advocate for just such an attempt to stave off what certain of them avowed was the impending disintegration of the American union. Henry, however, had undergone something of a change of heart during the preceding handful of years.

Angered by the evident unwillingness of Congress to send troops to protect Virginia’s growing settlements in the Ohio Valley, and notably appalled by the terms of the recently-defeated Jay-Gardoqui Treaty – the general thrust of which was that the United States would give up access to the Mississippi for twenty-five years in exchange for access to Spain’s colonial markets – Henry fixated his ensuing resentment on Virginia’s northern neighbors. Caring only for their commercial interests, states like Massachusetts and New York appeared to him all too willing to sacrifice the interests of their southern brethren in exchange for whatever financial opportunities they could between them secure. Thus did Henry respond to his friend and colleague Washington upon being sent a copy of the Philadelphia Convention’s finished work, “I have to lament that I cannot bring my Mind to accord with the proposed Constitution. The Concern I feel on this account is really greater than I am able to express.” As the events of the Virginia Ratifying Convention would shortly prove, however – to which Henry was elected as a delegate from Prince Edward Country – his powers of expression were more than up to the task of encompassing the length and breadth of his concern.

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