Speech to the Virginia Ratifying Convention, Part XVIII: The Powers We Put in Their Hands

Acknowledging this aspect of Henry’s character, while placing it alongside his status as one of the most ardent – and the most radical – Patriot statesmen of the Founding Generation, is a large part of what makes him such an interesting subject of study. While there can be no denying that he was every bit the impassioned advocate of natural rights and individual sovereignty that he presented to his fellow Americans – as well as an exceedingly skilled orator – he was also most definitely among the canniest, most determined, and most manipulative debaters to have plied his trade in the great forums of discussion from which the Revolution arguably derived its abiding philosophical rigor. He had principles, to be sure, and stood by them to the utmost. But consider some of the things he was willing to do to see those principles realized just within the text of the address herein examined. Over the course of his appeal to the Virginia Ratifying Convention, to the end of seeing the proposed constitution defeated, Henry repeatedly obscured the complexity of the subject at hand, engaged in gross generalizations, sought to stoke the fear, the pride, and the shame of his fellow delegates, dragged the discussion into tangent after tangent, and more than once made claims that quite simply weren’t true. His motivations were pure, by all accounts, and it was also true that amidst the aforementioned rhetorical trickery he often demonstrated a willingness and an ability to discuss the issues at hand – i.e. the nature of sovereignty, civil rights, and public virtue within a consolidated American government – with rigor and enthusiasm. But the value of the former seems to have outweighed the latter in Henry’s considered opinion. Whatever he actually believed, and however willing he was to discuss his beliefs, he appeared to attach greater value to strength of arms – rhetorically speaking – than strength of ideas. Convincing someone that you’re right and they’re wrong takes a great deal of effort, after all, and persistence, and even compassion. Winning an argument is much, much easier.

In this sense, and in certain aspects, Henry arguably embodied exactly the kind of politician that the American public has since taken to lamenting the presence of for as long as political media has existed in that country. Politicians are dishonest, people say, and manipulative, and egotistical. They tell lies, and they exaggerate, and they mislead, and they generalize, and all so that they can win some battle or other that they’ve convinced themselves is more important than being honest or having principles. Such litanies of frustration are often followed by a kind of wistful grieving for the loss of political innocence symbolized by the existence of this species of wanton narcissist. “Things were better then,” they bewail, “When people said what they meant and stood by their convictions. Oh, to have been alive to see it! And woe to us for having lost it forever!” The Founding is naturally one of the “golden eras” most often pointed to during discussions such as these, shining forth in the American psyche as it continues to do. The Founders are held up as almost godly ideals, sources of insight, paragons of virtue, and geniuses beyond the ability of the modern world to produce. Armed with word and sword, they smote the wicked British and built a nation upon the principles of liberty, equality, and justice the likes of which the world had never seen. America and Americans will never reach that height again, of course. The gods have long since ceased to stride the earth. But attempting to emulate the example of the Founders – or at the least paying heed to what wisdom they left in their wake – remains a widely valued endeavor, and one which individuals and organizations of nearly every political stripe seek to engage with to this day. To quote the Founders while attempting to justify a given policy position is to invoke a purer rationale than one could hope to synthesize on one’s own. To follow the lead of the Founders while pursuing a given objective is to invoke a moral authority which has virtually no equal in American public discourse.

As Patrick Henry has herein hopefully helped to demonstrate, however, the kinds of political behaviors which have caused generations of Americans to seek solace and inspiration in the example of the Founders were far from unknown to that same sainted cohort. Henry, the man whose exhortation to his fellow Virginians of, “Give me Liberty, or Give me Death” continues to loom large in the American collective consciousness as perhaps the single most powerful example of political conviction in the whole of the nation’s history, was also demonstrably a purveyor of half-truths and calculated omissions whose approach to political discourse, in not downright underhanded, was rarely as forthright or transparent as his avowed convictions would otherwise indicate. Quite possibly owing to his training and experience as a lawyer at the bar – in which arena the unvarnished truth often proves a less effective guarantee of success than a well – told story – the favorite son of Hanover County, Virginia seemed to approach the various debates in which he took part as though they were any other suit that he had been paid to try. At the end of the day, regardless of who was telling the truth and who was lying, there would be a winner and there would be a loser. The winner, regardless of their convictions, was the one who managed to convince the jury that their interpretation of the subject at hand was the correct one. And the loser, regardless of the purity of their motivations or the justness of their principles, was the one who failed to do the same. By a measure of value such as this, results were what mattered far more than the integrity with which the thing had been carried out.

Thus was Patrick Henry – that great sentinel of liberty – able to say a great many things to his fellow delegates to the Virginia Ratifying Convention which the modern investigator might regard as disingenuous, manipulative, or even downright deceitful without wholly abandoning the basic principles for which he was laboring. Henry knew – as well as any 21^st century political actor knows – that the surest way to see your convictions made manifest in the world is to win, win, win. Because if you don’t win, you have no power; and if you have no power, you can’t make the things happen that you know need to happen. You don’t have to convince people that what you believe is what they should believe, and you don’t have to have an answer for every probing question or apparent inconsistency that comes your way. All you need to do, by whatever means at your disposal and by whatever measure you care to establish, is to show people that you are right and that they can be right, too. Only then, once the dust has settled and victory has been confirmed, does conviction really apply. This is to say, only when conviction can reliably be translated into action. Otherwise, faced with an equally determined opponent, principle can very quickly turn from virtue to liability.

Henry was far from alone among the Founding Generation, of course, in viewing politics through such an outwardly mercenary lens. Alexander Hamilton (1757-1804), that great architect of American institutions, was notorious for his rhetorical prowess and his penchant for backroom dealing. Rare was the situation he found himself in that he hadn’t already shaped to his advantage, and rarer still was the opportunity to advance his goals that he didn’t actively and effectively seize. During the Newburgh Conspiracy, for example, when, in March, 1783, members of the Continental Army led by one John Armstrong (1758-1843) began discussing plans to march on Congress from their camp at Newburgh, New York over unpaid wages and underfunded pensions, Hamilton joined with a number of his fellow Congressmen in attempting to leverage the apparent threat of mutiny to the advantage of their particular policy objectives. The American treasury having been almost entirely emptied – and legislation authorizing an import tariff having been defeated in Congress in November, 1782 – Hamilton and his cohorts believed that the need to suddenly and rapidly locate a source of military financing in the face of a potential uprising represented the best chance to force through such measures as would permanently expand the financial independence of the nascent national government. That this scheme was ultimately foiled as a result of the Continental Army Commander-in-Chief’s efforts to remind the men and officers camped at Newburgh of their duty to Congress and to the nation – and that Hamilton’s intentions, as far as history records, were entirely focused on strengthening a government which he believed could do more good for more people – does nothing to change the essential circumstances of the event.

Faced with the possibility of an unauthorized military seizure of the legislative body of which he was a member – representing essentially a coup d’état upon the contemporary American government – Alexander Hamilton sought to use the threat of rebellion to essentially extort the outcome from Congress which his and his colleagues had thus far failed to achieve. He accordingly sought to encourage the mutineers, pushed his fellow Congressmen to adopt the funding powers which they had previously rejected, and worked to frustrate attempts at some manner of alternate solution. His motivation, it bears repeating, did not appear to be personal. That is to say, he was not attempting to enrich himself in the bargain. Altruistic though his intentions may have been, however, his methods were unquestionably narrow, self-serving, and duplicitous. Rather than proceed, in spite of previous setbacks, in the spirit of honesty, reason, and forbearance, he attempted to short-circuit the proceedings of Congress by way of fear and desperation. The law would not have agreed with Hamilton on his use of such means, nor would contemporary standards of morality have given him leave. Neither of these things mattered to the man who would soon enough become the first Secretary of the Treasury of the United States of America, of course, because he knew – as Patrick Henry knew in 1788 – that he was right and that his opponents were wrong.

Though Hamilton has since become somewhat infamous in the annals of American history for exactly this kind of questionable behavior, some of his most ardent opponents were no less guilty of disregarding contemporary definitions of legality and morality in pursuit of those objectives which they believed it most essential to achieve. No less august a personage than Thomas Jefferson (1743-1826) – a man for whom virtue became a watchword and liberty a rallying cry – engaged in a number of enterprises just within the scope of his tenure as President (1801-1809) whose rectitude were similarly shaky at best. In one instance, upon the unexpected offer from French Emperor Napoleon (1769-1821) to sell the entirety of Louisiana rather than just the city of New Orleans – whose purchase an American delegation had been dispatched to Paris to negotiate in 1803 – Jefferson chose to disregard both his own doubts and those of his fellow Republicans as to the constitutionality of the prospect by pushing for the rapid approval of the deal by the United States Senate. Though the Constitution – the text of which Jefferson and his supporters loudly affirmed ought to have been followed to the letter – did grant the President and the Senate sole authority to make treaties which would subsequently possess the full force of law, it nowhere granted the federal government the explicit ability to take possession of previously foreign territory for the purpose of enlarging the American republic. There can be almost no doubt whatsoever that the Republicans under Jefferson would have pointed angrily to this very deficit had the administration of either George Washington (1732-1799) or John Adams (1735-1826) attempted to pursue such an expansion of federal power as the Louisiana Purchase most definitely represented. As it stood, however, and despite contemplating the need for a constitutional amendment – a sure indication that Jefferson was himself unclear as to the strict legality of the course he was pursuing – the sale went ahead. Eager to plant the seeds of the “Empire of Liberty” which he believed the American continent was destined to become, Jefferson was evidently not about to let a mere pang of uncertainty – vast though its implications may have been – stand in his way.

In another instance, in that same fateful year of 1803, Jefferson sought to eliminate Federalist influence within the national judiciary by encouraging his fellow Republicans in Congress to use the impeachment clause of the Constitution to remove a number of federal judges that had been appointed by the two previous administrations. While at least one of the men accordingly targeted for removal almost certainly warranted it – that being District Court Judge John Pickering (1737-1805), a native of New Hampshire who was suffering from mental deterioration and alcoholism – the most prominent victim identified by the Jefferson Administration was guilty of nothing more than indelicacy and arrogance while ruling from the bench. Samuel Chase (1741-1811), a former Maryland legislator and Continental Congressman, had been appointed to the Supreme Court by President Washington in 1796 and had served relatively without incident for the better part of the decade that followed. He was, to be sure, an opinionated man, and one who was not afraid to give vent to his political frustrations while presiding over a case. But he had committed no legal or ethical lapses while in office, and he had at no point given evidence that his continued service presented a hazard to the welfare of the American people. Regardless, because he was a Federalist and wasn’t quiet about the fact, Jefferson sought his expulsion from the Court. “Ought the seditious and official attack on the principles of our Constitution [...] to go unpunished?” he hinted accordingly to Republican Congressman Joseph Hopper Nicholson (1770-1817). Articles of impeachment were thereafter introduced in the waning months of 1803 by Nicholson’s colleague John Randolph (1773-1833) and Chase was brought to trial before the Senate in February, 1805 on eight counts of having behaved in a manner unbecoming of a federal justice.

Though Chase was subsequently acquitted on all counts by the Senate – controlled, it should be noted, by Jefferson’s own party and presided over by his Vice President, Aaron Burr (1756-1836) – a fact of tremendous significance to the principle of judicial independence as applied in the United States of America, this would seem to matter somewhat less under the circumstances than the fact that he was impeached and tried to begin with. Jefferson and his Republican allies – in the House if not in the Senate – were evidently so convinced that the American people stood to benefit from their policy program that they were willing to essentially weaponize the impeachment process defined by the Constitution so as to clear away potential opposition in the federal courts. In some cases – that of the aforementioned John Pickering – this was likely just as well. But Samuel Chase had done nothing more than exercise the right to free speech which he possessed under the Bill of Rights. It was indelicate of him, certainly, to behave the way he did, and somewhat at odds with the principle of a non-partisan judiciary. During proceedings before a Baltimore grand jury, for example, Chase had responded to the recent repeal of the Judiciary Act of 1801 – passed during the waning months of the Adams Administration in order to ensure continued Federalist influence over the federal courts – by declaring that such actions would soon enough, “Take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.” Troubling though this action may have been – a Republican plaintiff, for example, might thereafter been fairly given to question Chase’s ability to hear his case – it nonetheless hardly qualified as a “high crime or misdemeanor” for which impeachment was the proper remedy. President Jefferson, though he had vociferously defended the principle of free expression as Vice President under John Adams in the 1790s in the face of the Sedition Act (1798), appeared in this case to be uninterested in such legal niceties. Justice Chase and his ilk posed a political problem for the newly-empowered Republicans and threatened to derail their plans for the nation at large. As Jefferson doubtless considered said plans to be to the benefit of the American public as a whole, it was accordingly permissible for him and his cohorts in Congress to temporarily ignore certain principles for which they might otherwise profess the most ardent support.

Even George Washington – the darling of the Revolution and a man whose probity and restraint comes across at times as almost superhuman – was not immune to the promise of what such temporary lapses could conceivably deliver. As discussed in a previous entry in these very series, the Commander-in-Chief of the Continental Army was at times reviled about as much as he was heralded during his service in the Revolutionary War. Many a man professed to him their undying loyalty and sought to protect him from defamation or disaster. But many others coveted his office, or doubted his competence, or held fast to personal agendas to which he presented an obstacle. Rather than allow this state of affairs to play out on its own, however – that is to say, rather than allow Congress to decided, according to whatever information it deemed significant, to decide what became of his command – Washington carefully but deliberately manipulated the situation to his own maximum benefit. He instructed the coterie of young officers who followed steadfastly in his wake to restrain themselves in some instances and sally forth in others, collected such damning information concerning his rivals as his supporters were able to secure, allowed his enemies in the Continental Army to overplay their hands when it appeared that he was determined to offer no resistance, and then presented such damning evidence as would destroy the reputation of any challenger to his authority. It was, as aforementioned, a subtle course of action, and not one which Washington was necessarily wrong to pursue. History ultimately proved, after all, that he was the man to lead the Continental Army to victory. All the same, however, his likely rationale – that he was indeed better suited to command the forces authorized and funded by Congress than any other officer presently available – was exceedingly slippery. Right though he may have been about his own abilities and those of his potential replacements, it really wasn’t his place to decide who should have commanded the Continental Army. He had been called to service by Congress in 1775 – reluctantly, it appeared at the time – and it was the responsibility of Congress alone to either keep him in place or ask him to step down. By subtly shaping the circumstances within which challenges to his authority came to light, he was thus essentially putting this thumb on the scales – not substituting his opinion for that of Congress, but most definitely tilting the odds that they would side with him in his favor.

 “Yes, yes, yes,” you’re doubtless muttering to yourself just now, “But what does any of this matter? Are you really saying that dishonesty in politics is in some way justified by the various examples set by the Founding Generation?” No, that’s not what I’m saying. Henry was wrong to act as he did during the Virginia Ratifying Convention; as was Hamilton in 1783; as was Jefferson twenty years later, as was Washington during the Revolutionary War. Little profit can be derived, I think, when people in positions of power and influence forgo honesty and justice in pursuit of some goal or other which they cannot see achieved otherwise. What I am saying is that anyone who feels the same way should not look to the Founding Generation for examples of how public servants ought to behave. The Founders were most definitely possessed of uncommon wisdom, insight, ingenuity, and forbearance between them and their actions on behalf of the cause of American independence and American nationhood were and continue to be a blessing upon the lives and livelihoods of their countrymen. That being said, they could also be as ambitious, and self-serving, and duplicitous as any politician whose behavior has become cause for public lamentation. Certainly they were capable of making tremendous personal sacrifices on behalf of the principles which they professed and the community to which they had pledged their service. George Washington’s health paid dearly for his years of military service, Thomas Jefferson traveled to the other side of the world – shortly after losing his wife and daughter, no less – in order to represent his nation’s interests in foreign courts, and Alexander Hamilton fairly threw himself into danger at every opportunity during his service with the Continental Army. Even Patrick Henry, who never served in any military post that threatened to expose him to mortal danger or in fact ever deigned to leave the confines of his native Virginia, voluntarily gave up the influence which he had gathered to himself over the course of the 1760s and 1770s in order to take possession of an office – i.e. Governor of Virginia – whose power was comparatively quite limited. Duty had compelled these men, and for that they should be celebrated. But they were also all of them keenly interested in promoting their own agendas, and to that end demonstrated an often pliable sense of what was strictly moral or legal.

To attempt to be succinct, I might say that in politics it does not pay to ever trust anyone always and completely. Some people in public service are very clearly interested only enriching themselves. These individuals, if they are to be dealt with at all, should be kept at arm’s length at all times. That being said, even the greatest statesmen of a given time and place, whose reputations appear to have been founded upon the unshakable bedrock of honesty and integrity, should never be given carte blanche to do as they will. Politicians, at the end of the day, are still politicians. They may loudly decry the necessity and the kinds of decisions it forces them to make, but a significant portion of their job revolves around finding ways to win. Sometimes this means winning elections, sometimes it means winning a debate; the challenges and temptations are the same regardless. And why shouldn’t they be tempted? The questions they are made to answer routinely involve matters of life and death, wealth and destitution, health, happiness, and the very nature of the public good. If, in order to see accomplished some end which they truly believe could change countless lives for the better, why shouldn’t they willingly commit some minor infraction? Would it not be manifestly immoral to do otherwise?

These kinds of inquiries, I suspect, are better left to philosophers and priests to answer with anything like definite certainty. That being said, they are questions which countless public servants have faced and continue to face at all times and in all places. Sometimes they abjure their convictions and sometimes they do not, but not one of them, I am convinced, is above having to at least consider the prospect. What is required, therefore, of the individual whose lives and livelihoods hang in the balance of these great and terrible decisions is nothing less than eternal vigilance. Ironically enough, this was precisely the prescription that the Founders themselves seemed universally to offer to the fears and concerns of their countrymen as to the fitness or longevity of republican government. Perhaps they knew their own limitations as well as subsequent generations would come to know their virtues. Trust no one with power they said, while they themselves held it; take nothing for granted, they said, when they as often depended on their fellow Americans to do exactly that. Patrick Henry himself, whose speech to the Virginia Ratifying Convention delivered in the summer of 1788 was the subject and catalyst of the present discussion, shines forth as an excellent example of precisely this dichotomy. In the same oration in which he held forth with any number of misleading claims and unverifiable assertions, he also cautioned his fellow delegates that power cannot be trusted regardless of who wields it. “But we are told,” he said,

That we need not fear; because those in power, being our representatives, will not abuse the powers we put in their hands. 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 the tyranny of the rulers. I imagine, sir, you will find the balance on the side of tyranny.

Perhaps Henry did not knowingly intend to refer to himself in this instance as one of those rulers who was bound to indulge in some manner of tyranny. But if the admonition could be said to apply to anyone at all, it most assuredly applied to him as well. Do not trust your public servants, he said, and only too right he was. I would add to that not to blindly trust the Founders, either. There is much than can be learned from them, I would be the first person to attest. But just as sure as they tried to mislead their countrymen during that moment when they all of them drew breath on this earth, they will mislead you, too, if you let them. 

I don’t know about you, but I’d rather consider that a dare.

Speech to the Virginia Ratifying Convention, Part XVII: Necessary and Proper

Patrick Henry’s broader intentions notwithstanding – i.e. the stoking of regional suspicions for the purpose of achieving a particular political end – it bears recalling that the specifics of his argument against the imposition of a federal tax regime in the United States of America were also largely moot. As aforementioned, the text of the proposed constitution made no mention whatsoever of any federal office under the name of “sheriff.” Indeed, the word itself does not appear once across the entire length of the relevant text. Sheriffs, of course, were very common at the state level, fulfilling a number of functions on a per-county basis from law enforcement to electoral certification. The most sensitive of these duties was undoubtedly the collection of taxes. Owing to the nature of the dispute which ultimately gave way to the American Revolution, taxation was a concept which most late 18^th century Americans were apt to associate with tyranny, particularly when non-payment was linked to severe punishment or when the collection of the same was submitted to the arbitrary oversight of the assigned collectors. As Henry pointedly affirmed, tax collection in Virginia rather distressingly fitted this model. By the terms of the Old Dominion’s 1776 constitution, sheriffs were nominated by the relevant County Courts and appointed by the Governor, nominally positioning them as agents of both the judicial and executive branches of the state government. But the taxes which they were responsible for collecting were exclusively levied by Virginia’s General Assembly, and that same body was the only entity in the state capable of making such laws as could limit the authority of the sheriffs within the context of their tax collecting duties.  The result was that the assigned sheriffs operated in a kind of limbo between the three branches of the state government, permitting them significant autonomy of action and combining judicial, executive, and legislative directives.

Threatened with executive censure, a Virginia sheriff might thus have claimed a legislative mandate for their actions and described executive interference as a violation of the autonomy of the most representative branch of government. Similarly pressured with increased legislative oversight, this same sheriff might then have affirmed their status as an officer of the courts whose activities fell well outside the jurisdiction of the General Assembly. And in the event that the relevant County Court attempted to reign in its nominal subordinate? The sheriff in question might have changed tacks once again, claiming now to be an executive appointee whose actions could only be checked by executive fiat. While the relevant authorities worked to sort which of these claims, if any, were accurate, much mischief could have been achieved by the aforementioned officers. In light of the authority assigned to Congress by the proposed constitution to lay and collect such taxes as the majority of its members deemed necessary, “To pay the Debts and provide for the common Defence and general Welfare of the United States [,]” Henry doubtless envisioned a similar situation taking shape on the national level, with the overlapping jurisdictions of the various branches of government providing cover for the exploitative behavior of a class of federal sheriffs. Possessing judicial as well as financial authority, and armed with the power granted them by text of Article VI – the second clause of which declared that, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof […] shall be the supreme Law of the Land” – these agents of United States government would be free to collect taxes anywhere, apply penalties for non-compliance anywhere, and violate whatever state laws or regulations threatened to obstruct them.

The only issue with this scenario was – it once more bears repeating – that the proposed constitution established no such office as a federal sheriff. The text of Article I, Section 8, as cited above, did affirm that Congress would have the authority to both lay taxes and collect them, thereby implying the creation of some kind of mechanism for the purpose of physically transferring the claimed funds from private possession to public possession. And the final clause of the aforementioned Section 8 did also grant to Congress the authority, “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 [,]” thereby seeming to create substantial room for interpretation in terms of how and by whom the levied taxes were collected. But the proposed constitution went no further than this in describing the means by which the government it outlined would seek to secure funding. Henry’s previously-cited assertion that there would be a federal sheriff – and that they would be a source of misery and oppression to the people of the United States – therefore represented nothing more than conjecture on his part. It would most definitely have been possible, upon the formal adoption of the proposed constitution, for Congress to create an office which precisely paralleled that which existed under the name of sheriff in states like Virginia. It would also hardly have been a stretch to imagine that the assembled Congressmen and Senators might seek to simply replicate the system of tax collection with which they were familiar from their respective home states. Notwithstanding the actual probability of such an outcome actually coming to pass, however, it was most definitely not the fait accompli that Henry sought to describe.

Once again, the issue at hand was one of rhetoric. As often as he seemed to be genuinely interested in discussing the moral or philosophical implications of this or that aspect of the proposed constitution with his fellow delegates to the Virginia Ratifying Convention, Patrick Henry appeared especially intent on winning whatever argument he believed he could successfully frame. While sometimes these arguments had comparatively little to do with the subject at hand – as when he sought to affirm that the contemporary British House of Commons, rotten boroughs and all, was set to be a better guardian of liberty than the Congress described by the proposed constitution – others did at least appear to address some of the specific issues raised by the prospect of inaugurating a consolidated national government in America. Henry’s exploration of the prospect of federal tax collection was most definitely one of the latter, inasmuch as it sought to raise the very valid point that the submission of the states to federal power – and the implications of certain clauses of the proposed constitution – might conceivably have certain uncomfortable, inconvenient, or even distressing consequences. That being said, the manner in which Henry structured said argument was not particularly conducive to transparent, nuanced discussion. He introduced the subject of taxation, after all, by making a wholly unverifiable claim. Congress, he declared, absolutely would create a class of federal sheriffs in parallel to that which existed on the state level. However else he elaborated upon this premise, whatever perfectly reasonable points he managed to raise, the foundation of his argument was fundamentally impossible either to confirm or deny. Perhaps Congress would enact such legislation – under the authority of the aforementioned Necessary and Proper Clause – as would serve to create a corps of federal sheriffs whose responsibility for collecting taxes would be joined with the authority to lay charges and make arrests. And then again, perhaps they wouldn’t, and the collection of federal taxes would be given over to the recognizance of the governments of the various states. There was, truly, no way of knowing.

Henry did not acknowledge this, of course, because it would not have served his purpose to do so. Setting off a discussion about the practical limitations of sovereignty, the relative value of stability versus liberty, and the existence of a greater public good may very well have proven exceptionally fruitful to all those in attendance at the Virginia Ratifying Convention, but such was most definitely not what the Old Dominion’s former Governor had in mind. Henry – most assuredly with the best intentions in mind – wanted to win. He wanted to walk into the Richmond Theatre – where the Convention was held from the 2^nd to the 27^th of June, 1788 – say whatever he needed to say to get his countrymen to agree with him, and walk out knowing that he had succeeded in denying the proposed constitution at least the affirmation of his home state of Virginia. Subtly did not form any part of this plan; nor did complexity, or nuance, or a general willingness to air out the relevant issues to the fullest. To succeed, as Henry wished to, one rather needed to be bold, declarative, broad, and confrontational. And cunning, of course – one also needed to be cunning, and manipulative, and blessed with greater insight into the human heart than most people could ever aspire to possess. Henry was all of these things, or he could be. Consider, once again, the structure of the argument he deployed during his aforementioned discussion of federal taxation.

By beginning with a false premise – i.e. that Congress, in order to collect the taxes which the proposed constitution gave it the power to lay, would create a class of federal sheriffs possessed of the same powers and prone to the same abusive behaviors as their counterparts in the states – and thereafter elaborating upon the nature and degree of his objections, Henry effectively presented his potential opponents with a number of mutually undesirable avenues of approach. To begin to argue the specifics of Henry’s assertion – by claiming, say, that the state sheriffs were not nearly as cruel and relentless as Henry described them, or that the courts would indeed serve as an adequate constraint upon the actions of their federal equivalents – would have been to tacitly grant the justice of his premise. Having thus ceded the advantage, those who were of a tendency to vote in favor of the proposed constitution would have accordingly been forced to argue over the indefinites that Henry was comfortable with acknowledging – i.e. the relative likelihood of Congress passing such laws as would adequately restrain the federal sheriffs – rather than that which he desired to gloss over entirely. To conversely deny the basic premise as offered, by asserting that there would never be such thing as a federal sheriff in the United States of America, would also almost certainly have played to Henry’s advantage. The issue, recall, was not that there would or wouldn’t be the federal equivalent of state sheriffs, but rather that no one could say for certain one way or the other. Faced with a blanket denial, Henry might easily have turned the uncertainly he had initially sought to obscure instantly to his advantage. “Are you sure they’re won’t be federal sheriffs?” he might conceivably have asked. “How can you know? Can you show me the clause of the proposed constitution that denies the possibility of their existence?” Engaging with questions like these would likewise surely have played to Henry’s advantage, just as a continued and absolute denial would have given him free reign to spin such scenarios as would almost certainly have further roused the anxieties of his otherwise undecided countrymen.

Even the most accurate response – that which granted the possibility of a federal sheriff’s existence while denying the probability of the same – would likely have fallen prey to Henry’s rhetorical dexterity. Either the individual in question would have been made to look as though they were not quite sure what it was they meant to say – perhaps upon repeated badgering with the question, “Will there be federal sheriffs or won’t there?” – or the conversation would have been made to devolve into one of passion and volume rather than reason and fact. The possibility of Congress creating a corps of federal sheriffs having been mutually agreed, it would have been left to Henry and his opponent to debate whether they thought the thing likely or unlikely. Since neither could count on being conclusively in the right, he whose assertions were most convincing would doubtless have enjoyed greater success. In this realm Henry would be at a distinct advantage, the man having built a career on convincing others that his own opinions were worth adopting. Not only was he especially adept at appealing to the fears and desires, hopes and horrors of his audience, but as the present discussion has sought to demonstrate, his ability to shape the assertions he put forward so as to effectively foreclose on the possibility of a successful counter was truly masterful.             

Speech to the Virginia Ratifying Convention, Part XVI: Those Unfeeling Blood-suckers

The ambivalent attitude towards fact which Henry displayed while attempting to make reference to the history and politics of contemporary Switzerland was also in evidence during his somewhat tangential discussion of Article I, Section 8 of the proposed constitution. The text of that section reads, in part: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States [.]” Henry’s issue with this declaration of federal authority was, among other things, that it would effectively create, “Two sets of tax-gatherers—the state and the federal sheriffs. This, it seems to me, will produce such dreadful oppression as the people cannot possible bear.” Elaborating further upon nature of his distress, Henry went on to claim that,

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?

The existing state sheriffs, he explained – “Those unfeeling blood-suckers” – were bad enough, and could hardly be restrained by the relevant legislature from committing, “The most horrid and barbarous ravages on our people.” Why, then, knowing this to be the case, should the people of Virginia consent to the employment of a second set of legally-sanctioned brigands whose masters would reside in distant Philadelphia or New York, where the people of Virginia would be forced to travel at personal cost in order to seek redress?

Henry’s venomous language notwithstanding, the point which he was attempting to make was in many ways a fairly reasonable one. If, as he affirmed, the state sheriffs in Virginia to whom the responsibility of tax collection fell tended to behave in a scurrilous and self-interested manner, it was not irrational to assume that federal sheriffs possessed of the same responsibility would follow this example, to the tune of extortion, and fraud, and corruption. Indeed, at increasing distances from their overseers in the national capital – as of 1788, New York City – why shouldn’t these selfsame revenue agents behave even more outrageously than their state counterparts thus far had done? “Regulations may be made by Congress [,]” Henry admitted, “As shall restrain these officers […] 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.” Patrick Henry thus concluded that it was better to count on the certainty of Virginia remaining outside of the federal taxation scheme by rejecting the proposed constitution than on the possibility of said scheme being applied with care and finesse. Despite the ostensibly firm logic of this assertion, however, there was at least one problem with its construction and one potential complication. As to the latter, the government of Virginia – of which Henry had been the chief executive on two non-consecutive occasions – had in the past shown itself perfectly willing to subject people within its jurisdiction to exactly the kind of inconvenience which Henry was here railing passionately against. And as to the former, the proposed constitution made no mention of there being any such thing as a federal sheriff.  

Virginia, recall, was much larger in 1788 than it is today. At the time that Henry was speaking, Kentucky (which achieved separate statehood in 1792) and West Virginia (which followed suit in 1863) were both integral parts of the Old Dominion, the residents of which elected representatives to the state legislature and sent delegates to the Virginia Ratifying Convention. As the fact of Virginia’s eventual partition would indicate, however, the relationship between the political establishment in Richmond and the inhabitants of these outlying areas was historically somewhat fraught. The counties which would eventually form West Virginia were for the most part physically separated from the state’s Atlantic coast by the Blue Ridge Mountains, passage through which was possible only during certain months of the year. The rocky terrain and abundance of mineral deposits also resulted in the development of significant economic differences – mainly in terms of deemphasizing agriculture and placing greater importance on mining and timber – and the proximity to western Pennsylvania allowed for a steady southward flow of migration that substantially altered the social and political character of what would in time become the 35^th state in the American union.

Separation from Virginia was still some eighty years away as of 1788, of course, but these and other factors nonetheless resulted in some degree of tension even during this early period in that state’s post-independence history. Whereas the state capitol in Richmond was located amidst the wealth and grandeur enjoyed and cultivated by the planter elite, residents of Virginia living to the west of the Blue Ridge Mountains were accustomed to much more humble surroundings. Some sense of alienation was likely inevitable, then, when the western representatives chosen by their neighbors to take their assigned seats in the General Assembly were confronted by the seemingly indomitable influence of the planter elite, the fact that the wealth they generated via plantation agriculture was prioritized within the state’s economy, and the resulting tendency of infrastructure spending to go towards projects which benefited and enhanced the same.

While the region of Virginia which would go on to form the state of Kentucky was more closely aligned economically to that state’s Atlantic coast than that which would secede to form West Virginia– in as much as it was likewise dominated by plantation agriculture – distance and physical geography would result in the emergence of a very similar divergence of interests. Compared to the future West Virginia, in fact, the issues facing pre-statehood Kentucky were so urgent that Richmond was moved to grant the residents of the latter permission to apply to Congress for full statehood as early as 1788. Not only did a stretch of the Appalachians likewise separated the future Kentucky from Virginia – thus creating an at-times impassable physical barrier between residents of the same and the government whose authority could most directly affect their lives – but the indifference of Richmond to the economic priorities of its western constituents created a degree of tension that in time became practically intolerable. Unlike coastal Virginia, whose ports on the Chesapeake were open to the Atlantic Ocean and provided access to a myriad of markets beyond, Virginia’s trans-Appalachian residents were forced to rely on access to the Mississippi River and to the storage and shipping facilities of Spanish New Orleans if they were intent on making anything like a reasonable profit on their produce. While this would not pose much of a problem under normal circumstances, the planter elite demonstrated an alarming indifference towards the economic stability of their state’s western reaches during moments of peak tension between the United States and the Kingdom of Spain.

Doubtless eager to maintain favorable relations with a potential buyer for their own produce – a buyer, no less, whose various Caribbean possessions were seemingly always in need of basic supplies – the planter-dominated government of Virginia accordingly did little to secure the reopening of New Orleans to American commerce following its closure by Spanish authorities in 1784. Granted, two of Virginia’s delegates in Congress, James Madison (1751-1836) and James Monroe (1758-1831), did take the lead in defeating the ratification of the Jay-Gardoqui Treaty (1786), which would have exchanged a twenty-five year continuation of this state of affairs in exchange for access to Spain’s West Indian colonies. But in the interim, between 1784 and Virginia’s granting of permission for Kentucky statehood in 1788, the residents of that region were left to suffer without recourse. Some segment of the planter elite may have shown itself willing to prevent the indefinite continuation of their economic woes, but this gesture did nothing to alleviate their misery in the meantime. Facing immanent economic ruin and yet still unable to make themselves effectively heard in Richmond – being both outnumbered and forced to shoulder the burdens of distance and expense – Kentuckians accordingly held some ten conventions between 1784 and 1788, all of which for the purpose of proposing and establishing statehood. Though the last of these was ultimately successful – in as much as it resulted in the acquiescence of the government of Virginia – events would unfortunately transpire so as to prevent the actual admission of Kentucky into the union of American states until 1792. 

Returning to Patrick Henry’s cited commentary upon the supposedly reprehensible notion of subjecting the people of Virginia to the taxation authority of a government too far from those being affected than was in keeping with the basic principles of liberty and justice, the above discussion would seem to call his sincerity into question. As of 1788, whether he would himself have admitted it or not, the state of which Henry had twice been Governor was arguably guilty of exactly this behavior. The inhabitants of the regions of Virginia which would at length become the states of Kentucky and West Virginia were all of them subject to the authority of a government that was not only separated from them by both distance and physical obstruction but which had repeatedly shown itself to be disinterested in addressing their basic economic needs. Granted, the relative inability of these far-flung Virginians to exercise control – or else register their discontent – over the behavior of state sheriffs assigned to collect what taxes they owned was not particularly at issue within the context of their major grievances with Richmond. That being said, the basic principle at work was fundamentally the same. The trans-Appalachian residents of what would soon become Kentucky, as well as the trans-Blue Ridge residents of what would at length become West Virginia, were at a loss compared to their countrymen on the Atlantic coast by being unable to contact their government at certain times of the year, at others being forced to do so at significant expense and risk of harm, and at all times being the victims of persistent neglect. 

Henry, it again bears noting, would likely not have granted the parallel between what he had described in his speech to the Virginia Ratifying Convention and what was then occurring in the Old Dominion. Indeed, having served as Governor of that state during what were arguably the pivotal stages in Kentucky’s journey towards admission to the American union, he would likely have claimed that he and his successor, Edmund Randolph (1753-1813), had between them laid the issue completely to rest by clearing the way for Kentucky to petition Congress directly for statehood. Virginia may have formerly been guilty of what Henry described in 1788 as “mischiefs” and “oppressions” as regarded the inhabitants of Kentucky, but it was accordingly guilty no longer. True though this may have been, it would nevertheless leave out the parallel situation of the future territory of West Virginia. Residents thereof, though not faced with as dire a near-term economic forecast as their countrymen in Kentucky, were still at a distinct disadvantage compared to Virginia’s plantation-owning coastal elite. They could and did elect representatives to the General Assembly, of course, and their representatives were entitled to vote during the joint sessions convened for the purpose of electing a governor. It was entirely accurate to say, therefore, that they had as much formal input over the affairs of the government of the state in which they resided as did any inhabitant of the Piedmont or the Chesapeake. But they were also outnumbered, as representatives of a set of economic interests unique to their region, and forced to contend with significant barriers to their continued participation in civic affairs. And while, in a moral and legal sense, they were indisputably entitled to submit their grievances to Richmond, they were practically restricted from doing so by the changing of the seasons, the time that they could put aside to make the lengthy journey to the coast, and their willingness to risk potential harm or hardship. Authorities in Richmond, unless they were tremendously ignorant of what was going on in the state that they governed, could not but have known that all of this was the case. All the same, they seemed content enough not to consider the issues at hand particularly worth addressing.

The reason that Henry likewise made no note of this fact during a speech in which he vociferously decried the very concept of a people being bound to the authority of a distant, inaccessible government would seem, essentially, to be twofold. On one hand, both tactically and morally, it surely would not have suited him to admit that the government over which he had quite recently exercised executive authority was in any way guilty of neglecting its constituents. Not only would it have weakened the force of the argument he was trying to make – by demonstrating that the proposed national government would be no more guilty of the sins Henry decried than certain state government were already – but it would also have served to tarnish Henry’s hard-won reputation as an ardent defender of the rights of the people. How sincere could the man be in his convictions if he had previously overseen precisely the kind of passive oppression which he was now claiming he wanted to prevent? Did he truly despise arbitrary authority in all guises, as he had long and loudly affirmed, or just when it was wielded by anyone other than himself? Rather than attempt to answer these kinds of question – which would most definitely have been valid ones – Henry likely saw it as far a safer bet to simply omit any mention of the subject and count on the planter preponderance in the Virginia Ratifying Convention to accomplish the same result as it had in the General Assembly. That is to say, so long as those whose grievances were not being addressed remained in the minority there was no practical need to pay them any mind.

On the other hand, of course, there was the somewhat subtler influence of ingrained provincialism. Though perhaps conscious of the difficulties faced by the residents of what would at length become the state of West Virginia – as events had surely forced him to become aware of the similar conditions then at work in what was soon to be Kentucky – Henry may have managed to convince himself that the situation he described in his speech to the Virginia Ratifying Convention vis-à-vis the authority and oversight of federal sheriffs was not at all like what had happened and was happening in his home state by keeping one basic fact at the very front of his mind. Kentuckians and West Virginians, while forced to contend with more trying circumstances than their neighbors in coastal Virginia, could nonetheless take comfort in the knowledge that the government with whom they struggled was at the very least familiar with their customs, their character, and their basic situation. It was not, in essence, a foreign government to which they were subject. Familial and economic connections crossed the aforementioned barriers represented by the Appalachian and Blue Ridge Mountains, and the communities in question elected representatives on a regular basis whose sole task it was to make their voices heard in the halls of power in Richmond. While the interests of these people may have been neglected from time to time, therefore, owing to their comparative minority within the general population, they were not strangers in Virginia, and nor was Virginia, to them, a strange land. The same could not have so easily been claimed of the consolidated national government described by the proposed constitution.

Virginia, of course, was going to have as much input into said government as would any of the other American states. Virginians would directly elect representatives to the lower house of Congress, and the General Assembly would collectively appoint the state’s two Senators. The same would be true of Massachusetts, and New York, and Pennsylvania, and Georgia. Virginia’s presidential electors would likewise be chosen by the General Assembly, the votes of which would be cast on the same footing as those of its twelve sister-states. But if it could accordingly be said that the resulting national government would belong as much to Virginia as it did to Massachusetts, it would also have been fair to claim that said government would belong to Virginia less than to the other twelves states combined. In this sense, while Virginia Congressmen and Virginia Senators would have some input into what federal taxes were levied in the Old Dominion and the manner by which they were collected, said taxes might also conceivably be levied and collected over the vehement objection of these same Virginia legislators. Having agreed to submit to the authority vested in the national government by the proposed constitution, Virginians would possess no legal recourse in the event of such a result. Their property would be at the disposal of people who did not live in Virginia, who had perhaps never been to Virginia, and likely had only a limited idea of the kind of treatment the people of that state were willing or able to bear. Having subsisted for over a decade on their own initiative, electing their own governments, making their own laws, and generally forging their own destiny, this was doubtless not an outcome the people of Virginia believed they were due to confront when they declared their independence from Great Britain in 1776. Indeed, it was this exact kind of situation which the severing of formal legal ties between British America and Great Britain proper was supposed to foreclose upon forever. The proposed constitution, as Patrick Henry described it, threatened to undo this outcome, and for that reason represented a legitimate source of anxiety for those who had come to invest the concept of state sovereignty and state autonomy with an almost religious degree of moral significance.

The text of the proposed constitution itself didn’t hold much in the way of answers to the queries posed by the abovementioned situation. Cognizant though the Framers doubtless were of the importance which their countrymen had come to invest in the continued independence of the various state governments, the entire raison d’être of their meeting in Philadelphia in the spring of 1787 was to reform the government of the United States of America along more centralized lines. The assembled delegates, while willing to concede certain responsibilities to the states, were accordingly unwilling to seed the administrative framework in question with the means of its own undoing. The various states, for example, were granted the right to draw the districts by which individuals were to be elected to the House of Representatives, were given direct responsibility for the appointment of Senators, were allowed a tremendous amount of flexibility in the selection of presidential electors, and enjoyed final approval over potential amendments to the text of the Constitution. At the same time, however, no state was permitted to disregard an act of Congress, disobey a ruling of the federal courts, claim such responsibilities as had been allocated to the federal government, or refuse to participate in the national military establishment. The 1780s had borne witness to the consequences of failing to thus curtail the simultaneous autonomy of thirteen separate states – the competition, mutual sabotage, diplomatic paralysis, and economic malaise – and the proposed constitution was the Framers’ purpose-made answer. They were not about to see the union of states for which many of them had but recently fought and sacrificed slide further into internal chaos and external irrelevance. The inability of the various states to any longer engage in practically unlimited freedom of action was therefore, to their thinking, not an unfortunate side effect of their efforts but rather the whole and specific purpose.

All that being said, Henry was likely as troubled by the notion that Virginia was bound to lose a significant portion of its by-now accustomed autonomy under the terms of the proposed constitution as by to whom he believed said autonomy was going to be ceded. Recall, to that end, his assessment of the likely locations from which the federal sheriffs he complained of were to receive their orders. “If they perpetrate the most unwarrantable outrage on your person or property,” he avowed to fellow Virginians, “You cannot get redress on this side of Philadelphia or New York [.]” Congress, it was true, had been meeting in New York City since 1785. And Philadelphia, in fits and starts resulting mainly from external threats, had previously served in the same role as capital of the United States of America during the Revolutionary War between 1776 and 1781. But there was almost certainly something more than a statement of probability to what Henry was saying. It wasn’t just that these were the likeliest locations wherein the government described by the proposed constitution would set down roots, or that they were each of them located quite far from Virginia. It’s that they were northern cities, full of traders, and merchants, and speculators, the character and customs of which were doubtless viewed by the plantation-owning Virginia elite – and even by their comparatively modest yeoman farming neighbors – as alien, unnatural, and even vaguely threatening.

Most contemporary Americans were of shared British extraction, of course, and spoke English, and practiced some form of Protestant Christianity. And the government which Henry claimed would be located in far-off New York or Philadelphia was to include its share of Virginians, and Georgians, and Carolinians as well. Indeed, the first person almost certain to hold the office of President of the United States was already widely known to be Virginia’s own George Washington, perhaps the wealthiest planter from a land of wealthy planters and a personal friend of Patrick Henry. Within the context of the rhetorical framework that Henry was seeking to construct, however, none of this mattered as much as the mere fact of the consolidated government’s probable northerly location. Despite having cooperated with increasing closeness over the course of the 1760s and 1770s – between the Stamp Act Congress, the First and Second Continental Congress, and the ongoing Congress of the United States – the various states continued to function – and their inhabitants continued to view them – as inherently distinct, separate, and unalike entities. This distinctiveness extended from the realm of government and administration – each state having adopted a constitution of its own, the variations between which were sometimes quite significant – to matters economic – some states depending almost completely on agriculture, others deriving much greater profits from trade – to questions of culture. A New Yorker, for example, was likely to view a Virginian as too courtly and supercilious, a Virginian to view a New Yorker as being overly avaricious, and both to perceive a native of Massachusetts as too much the moralizer and the busy-body for their own or anyone else’s good. So long as everyone minded their own affairs, of course, these relatively harmless stereotypes might remain just that. Congress, it was true, mandated cooperation in order to function. But since, as of 1788, Congress wasn’t required to function all that well or all that often, it would seem to have made little difference that the residents of the various states did not always see eye to eye.

The proposed constitution naturally threatened to change all that. By giving a reformed and empowered Congress binding decision-making authority, the Framers ensured that the cultural, political, and economic differences that persisted between the states could not continue to be ignored while each pursued their respective interests and priorities. Courtly Virginians, acquisitive New Yorkers, and censorious New Englanders would be forced to cooperate in the formulation of such laws and policies as would have the same effect upon – and demand the same adherence from – every state in the nascent American republic. While on one hand this would almost certainly have required the individuals in question – elected to represent their respective communities – to familiarize themselves with the political, economic, and cultural realities of states other than their own, thus arguably helping to bind the nation closer together in the spirit of partnership and mutual aid, it was also likely to produce more problematic results in the process. Namely, as mentioned above, it was entirely possible that a bill might receive enough votes to become law, garner the signature of the President, and begin to be enforced despite having been uniformly rejected by the delegation of a given state. It was this latter scenario that Patrick Henry seemed intent on invoking with his cited reference to New York and Philadelphia, and the lingering provincialism of his countrymen which he seemed interested tweaking. Having refused its assent to a law which it was nonetheless bound to obey, how else might said law have fairly been described? If it was not a Virginia law, then whose was it? And what, for that matter, did it mean when a people were made to adhere to laws that they had no part in making? Henry doubtless would have answered that the only word to describe such a state was “tyranny.” Granted, the New Yorkers and Pennsylvanians to whom Henry alluded might also have refused their assent and been thrust into the same unenviable position as the Old Dominion herself. But the likes of Annapolis, Maryland – where Congress had met for a little less than a year between 1783 and 1784 – made a far less effective bogeyman than did New York or Philadelphia. It was the “otherness” of these places that Henry was almost certainly counting on, and the sense of foreign occupation that their authority over Virginia at least emotionally implied.