Speech to the Virginia Ratifying Convention, Part IV: “An Unlimited and Unbounded Power”

            Another theme which seems to recur throughout the relevant oration delivered by Patrick Henry to the Virginia Ratifying Convention in the summer of 1788 is that of trust and its relationship to power. While not always explicitly identified as such, trust has been a primary component of republican political theory almost as long as republican government has existed in practice. Since classical antiquity, and in particular since the golden age of the Roman Republic (240-60 BC), political theorists and statesmen have alike pondered the extent to which the individuals qualified to hold office could be trusted to wield the associated authority in a responsible, sustainable, and selfless manner. Whereas the existence of a monarchy might render such inquiries moot in practice, the fact that republics permit both frequent changes in government and frequent changes of government – which is to say, rotation in office as well as modification of fundamental law – makes it both possible and imperative that those most likely to be affected by the institutions of power in a republic pay heed to the manner in which said power is distributed.

While the results of such ruminations have often tended towards the practical and expedient – many offices within the aforementioned Roman Republic were bound by age qualifications and term limits as a means of countering inexperience and corruption, while the executive committee of the Dutch Republic featured a rotating chair and term limited appointments for much the same purpose – the reasoning behind such measures has often ventured into the realm of the metaphysical. The desired outcome on the part of citizens and statesmen alike has almost always been the promotion of more stable, effective, and mutually prosperous governments, of course. But discussions of term limitations, age limitations, vetoes, checks, and balances at base beg certain questions about the essential nature of the human animal. Can people be trusted with power, and to what extent? Is selflessness a characteristic that often accompanies ambition? Is it sensible to give people who seek and hold authority the benefit of the doubt, or should it be assumed that they will always do wrong if they can enrich themselves in the process? Patrick Henry, for one, had very definite answers to inquiries such as these. Notwithstanding his tendency to rhetorically lionize his fellow countrymen, he made it abundantly clear during his membership in the Virginia Ratifying Convention that suspicion was by far the healthiest attitude a person could adopt when thinking about the apportionment and application of political power.

Henry was not alone in this conviction, of course. All of the states, upon realizing their independence from Great Britain in 1776 and adopting republican constitutions, had been bestowed by the relevant convention or committee with a statement, or a declaration, or a bill of rights intended to protect the newly unfettered population from having their essential liberties once more violated, constrained, or abused. In the case of Henry’s home state, this took the form of the Virginia Declaration of Rights, authored principally by the aforementioned George Mason (1725-1792). Though most certainly influenced by the earlier English Bill of Rights (1689) – the central purpose of which was to guard Parliament against potential abuse by the prerogatives of the Crown – Mason focused much greater attention on individual liberties than political ones, and made no concessions for the existence of hereditary, economic, or legal classes. The resulting delineation of rights included, among others, guarantees that,

All power is vested in, and consequently derived from, the people […] That elections of members to serve as representatives of the people, in assembly ought to be free […] That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised […]That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments [and] That all men are equally entitled to the free exercise of religion, according to the dictates of conscience [.]

That these and similar statements were ultimately adopted by the membership of the Fifth Virginia Convention as the preamble to that state’s first republic constitution would seem a strong indication that distrust of authority was a very common response among the political elite of Virginia to the late machinations of successive British governments. No longer content that the conventions of Parliament would serve to protect them, they instead opted to enshrine those liberties which they held most dear explicitly and directly in the charter which they intended to become the supreme law of the land.

            The fact that the proposed national constitution produced by the Philadelphia Convention (1787) included no such codified individual protections was accordingly of great concern to the likes of Patrick Henry, if not indeed to all those in the state Virginia who took comfort in the existence of the aforementioned Declaration of Rights. Speaking to precisely this attitude, Henry noted near the beginning of the relevant oration that by adopting the proposed constitution, “The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others.” Henry’s evident discomfort was far from misplaced. Though the Virginia Declaration would continue to protect the inhabitants of that state from potential abuses of power by the relevant governor, general assembly, and courts, the national government to be erected upon the ultimate approval of the Constitution would be under no obligation to observe any such limitations upon its practical authority. Such was the nature of the “dual-sovereignty” model which the Framers constructed, whereby an individual was at once a citizen of a given state and of the United States and could be acted upon by one, the other, or both at any time. A federal prohibition against, say, the printing of malicious libel therefore could not technically be said to have violated a state guarantee of freedom of the press. While the Framers affirmed that this had to be the case – that neither state governments nor state constitutions could be permitted to bind the national government from pursuing a particular course of action – it was perfectly understandable that someone as dedicated to the principle of state sovereignty as Patrick Henry should have been given significant cause for concern.

Consider, by way of an extended example, the principle of taxation within the Anglo-American socio-cultural context. The aforementioned English Bill of Rights had affirmed in 1689 – in the aftermath of the Glorious Revolution – that, “Levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal [.]” Since Parliament was intended to function as the elected representation of the people it claimed to govern, it accordingly followed as a basic principle of the breed of English constitutionalism which emerged at the beginning of the 18^th century that people who lacked a voice in the legislative process were not bound to fulfill its allocations. Contemporary political philosopher John Locke (1632-1704) elaborated upon and strengthened this idea by harnessing political sovereignty to the sanctity of private property. Holding that nothing could legitimately separate a person from that which they owned but their express consent, Locke declared that taxation could only follow upon the affirmation either of those being taxed or of their expressly designated representatives. If, conversely, the authorities in given state took whatever they pleased from whomever they pleased without justification or consent – thus effectively violating the essential purpose of government as a form of collective security – functional anarchy could be the only outcome. Holding the Crown to be the greatest threat to private property and communal tranquility that Britain was likely to experience – as the preceding century had indeed shown it to be – the majority of the political elite in late 17^th century England accordingly embraced this construction of state power and the privileged place it afforded to the role of Parliament as the authority of last resort. Westminster was the sole legitimate representative of the English people, they affirmed, and Westminster thereby alone could exercise the power of taxation.

Unsurprisingly, the political elite then active in the various colonies of which British America was comprised received this doctrine warmly and easily. Not only did it promise the individual colonial legislatures protection for the domestic autonomy that they had long since come to expect, but it aligned quite neatly with their shared sense of proto-constitutional government. Most of the colonies, after all, were governed by the explicit text of a charter issued under the hand of the Crown. While successive monarchs often attempted to abrogate the terms of these documents, to the point of occasionally repealing them altogether, popular opinion in British America had come to characterize them as political compacts which could not be dissolved but by the consent of both contracting parties. So prevalent was this perspective on the relationship between the Crown and the colonial governments that even in colonies which did not possess charters – like Virginia after 1624 – the common understanding was much the same as in those that did. As between the monarchy and Parliament in Britain proper, the dynamic between the colonial legislatures and the Crown in British America was based on a mixture of consent and precedent. The British sovereign was also the sovereign of Virginia, and Massachusetts, and New York, and could exercise in those dominions – often through the medium of its appointed representative – many of the same powers that it traditionally reserved to itself in England, Scotland, and Ireland. Likewise, as Parliament maintained that there were limitations upon what the Crown could accomplish without the consent of the Lords and the Commons, so did the colonial governments affirm that certain powers could not be exercised absent the cooperation of the various colonial legislatures. According to the logic of this arrangement, therefore, while the reigning monarch could appoint colonial justices and magistrates and the colonial militias, they could not seize private property or levy an excise solely upon their own authority. 

Sturdy though this system was in general, it ran into something of a gray area whenever Parliament attempted to make law for the colonies. The Bill of Rights, it bears remembering, was intended to protect Parliament from the abusive implementation of the prerogatives of the Crown. As Parliament was held by contemporary observers to be the repository of the will and the sovereignty of the British people, this was accordingly held to offer sufficient protection from institutional tyranny. This is to say, there did not appear to be any need to enact such provisions as would have protected the British people from the authority of Parliament. Representation within that selfsame body doubtless seemed guarantee enough for most that their interests would be heard and that their consent would be sought. But the inhabitants of British America were not represented in Parliament – for logistical rather than philosophical reasons – and Parliament did at times need to make such laws as would serve to regulate the economy of Britain’s burgeoning global empire. While most of the resulting statues – i.e. the Navigation Acts (1651, 1663, 1673, and 1696), the Molasses Act (1733), the Iron Act (1750), etc. – were at least tacitly accepted in British America because of their focus on trade adjustment rather than domestic revenue, restraint was all that kept the legislators in Parliament from attempting to pursue the latter, and generosity all that kept the inhabitants of the Thirteen Colonies from affirming that their liberties were being infringed.

It was perhaps inevitable that this tenuous status quo should at some point have given way to a full-blown constitutional crisis. That it did and how it did is two well-trod a subject to repeat here in much detail, save to say that Parliament’s attempts in the 1760s and 1770s to abandon its customary restraint and levy taxes directly upon the Crown’s subjects in America had a drastic effect on the political culture and the political consciousness of the American people. Having witnessed what could come of simply trusting the institutions and officers of government to behave in a responsible manner rather than describing explicitly what was in their power to accomplish and what would remain beyond it, revolutionary assemblies in state after newly-independent state determined to enact concrete protections for the individual rights of the people residing therein. The aforementioned Virginia Declaration of Rights was one such set of explicit protections, and it bears noting that one of the provisions it contained stated clearly that the citizens of that state, “Have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected [.]” While almost certainly intended in the main to prevent, say, a renegade governor intent on overthrowing the Virginia General Assembly from attempting to levy the funds necessary to pay the militia directly from the people, this measure also had the effect of ostensibly closing off the prospect that the state of Virginia would ever again recognize any authority above that of its own government.

No doubt holding this to be an essential conviction, Patrick Henry accordingly questioned the propriety of a consolidated national government levying taxes directly upon the people of Virginia. Having cited the same passage of the Declaration of Rights as repeated above, he accordingly asked of his fellow delegates at the Virginia Ratifying Convention, “But what does this Constitution say? The clause under consideration gives an unlimited and unbounded power of taxation.” The clause to which Henry referred, located in Article I, Section 8, stated, among other things, that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises [.]” Granting that the terms “unlimited” and “unbounded” were nowhere in evidence, thus leaving open the possibility for some kind of constraints to be placed upon the taxing powers of Congress, there remained ample cause for distress on the part of the citizens of Virginia in the event that the Old Dominion opted to accede to a the consolidated union of American states. “Suppose every delegate from Virginia opposes laying a tax [,]” Henry ventured accordingly, “What will it avail? They are opposed by a majority […] so that, in direct opposition to the spirit and express language of your declaration of rights, you are taxed, not by your own consent, but by people who have no connection with you.” This was far from a fanciful scenario, and one which raised certain troubling questions as to the nature of the compact that Virginia was then being asked to join.

On one hand, there was the issue of sovereignty. The constitution of almost every state in the former Thirteen Colonies as of 1788 recognized the possibility of institutional corruption by enshrining alongside its various provisions and clauses some kind of codified guarantee that taxes could not be levied upon the relevant population absent either their direct consent or the consent of their elected representatives. The events of the 1760s and 1770s had made the need for such explicit stipulations abundantly clear; under no circumstances were the inhabitants of an American state willing simply to trust any government to act in a responsible and/or morally justifiable manner. The people of Virginia were no different in this respect than the majority of their fellow Americans, and the Declaration of Rights served for their response. But the proposed constitution embodied something which the framers of the various state constitutions seemingly did not account for. Whereas the Articles of Confederation had created a union of states whose acquiescence was required for the national government to undertake just about anything more substantial than ordering new stationary, the Constitution aimed to create a union of peoples merely organized along the lines of the existing states. The resulting federal government would thus function effectively above or outside of the state governments without necessarily affecting their existence. The people of Virginia would thus still enjoy the protections enshrined in their Declaration of Rights, and would accordingly have no cause to fear being taxed by any state authority in which they were not represented.

But these people would at the same time also be citizens of the United States of America, and thus subject to the laws and bound by the excises of a government functionally unconnected to that of their home state. From the prospective of those who supported the ratification of the proposed constitution, this was not an issue. Electing members of the House of Delegates or the Senate of Virginia – or being elected to either of those bodies – did not preclude someone from exercising the same rights within the context of the proposed national government because the two operated in parallel rather than in opposition. The interests of the Old Dominion were essentially subsumed within the interests of the American republic as a whole, with Virginia’s powers reserved mostly to local and domestic matters and the federal government’s mostly to national ones. Convincing though this explanation was to many Americans in the late months of 1787 and the early months of 1788, it nevertheless failed to address the issue of taxation to the satisfaction of men like Patrick Henry. Because the federal government would possess the power to levy taxes, not upon the states – as had been the case under the aforementioned Articles – but upon the American people directly. Granted, the individuals in question were to be represented within the body whose responsibility it was to devise and collect these taxes, thus outwardly satisfying the essential axiom of taxation by consent. But what of the situation that Henry described? What if a tax was approved by Congress in spite of the entire Virginia delegation voting against it?

Supporters of the proposed constitution would doubtless have affirmed that being outvoted did not represent an injustice. So long as the members of the Virginia delegation were given the chance to take part in debates and to vote, they could not legitimately have complained if things didn’t go their way. But what of the Virginia Declaration of Rights? Did it not say, explicitly, that the inhabitants of that state, “Cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected [?]” While the state of Virginia would indeed be represented in the process leading to the hypothetical tax, it is nevertheless doubtful that George Mason and his collaborators wrote the cited provision with the intention that it would ever be construed in such a ways as to allow an excise to be laid upon the inhabitants of the Old Dominion in spite of every one of their elected officials voting against the same. The issue, once again, was that the Declaration of Rights did not account for the existence of a government that could act upon the inhabitants of Virginia above or outside of the formal authority of that state, any more than the Constitution – or at the very least the relevant clause of Article I, Section 8 –acknowledged the existence of a layer of sovereignty between the United States of America and the citizens thereof.

As far as the constitution of Virginia was concerned, there existed no higher authority than the government of that state. And as far as the proposed national constitution was concerned, the people it was claiming the right to tax only happened to live in, and were only incidentally citizens of, Pennsylvania, or New York, or Massachusetts, or Virginia. While neither the Framers nor the supporters of their work appeared to take issue with this characterization, Patrick Henry most certainly did. Having invested a great deal of time and energy into promoting the notion that the people of Virginia were sovereign and possessed of certain inalienable rights, he could not easily accept that the constitutional protections they had taken steps to enact might at some point be rendered functionally impotent by their membership in a community within which they constituted a comparatively small minority. What purpose did the Declaration of Rights really serve if it could be so easily swept aside? What was the point of affirming the sovereignty of the state and people of Virginia if they proceeded to join a political community that could ignore them at its leisure? Pride no doubt played a part in shaping Henry’s answers here, as well. His attempt to portray Virginia as potentially weak and impotent within the union of states – i.e. as being unable to either to defeat or ignore a tax it found undesirable – as opposed to powerful and decisive outside of it was therefore almost certainly as sincere as it was tactical. Henry wanted his fellow delegates to fear the weakness which he believed was bound to accompany Virginia’s ratification of the proposed constitution – to the extent that he was willing to exaggerate the likelihood of a particular scenario taking place – at the same time he was himself legitimately given pause by the notion. 

Speech to the Virginia Ratifying Convention, Part III: “A Most Fearful Situation”

The other worst-case scenario which Patrick Henry attempted to describe to his colleagues during the events of the Virginia Ratifying Convention in the summer of 1788 was arguably about as unlikely as the first to actually transpire while additionally embodying a fear which it is substantially harder to imagine Henry actually had cause to harbor himself. As discussed in the previous installment in this series, the abortive Jay-Gardoqui Treaty (1796) had done much to convince him that the commercial interests which dominated the Northern states were perfectly willing to sacrifice the prosperity of the agrarian South and West if it meant gaining access to new markets for their burgeoning merchant firms. That the North was also more populous than the South, and would thus have been entitled to a greater number of seats in the House of Representatives and a greater number of votes in the Electoral College, accordingly gave Henry much cause to fear the creation of a consolidated government dominated by self-interested shopkeepers and avaricious wholesalers. Within this same context, however, there would seem to have been little reason for the favorite son of Hanover County to be very much concerned by the emergence of a theoretical alliance of small states intent on blocking potential amendments to the projected federal charter. The small state vs. large state conflict, it bears recalling, had indeed been one of the fulcrums upon which the efforts of the Framers had pivoted during the events of the Philadelphia Convention. The need to forge a compromise between these competing interests was in fact what caused the assembled delegates to settle on a bicameral structure for the United States Congress, and to assign different means of election to the upper and lower houses thereof. But absent the framework of an assembly intended to draft a plan of government for a set of political entities whose priorities and resources were not all that alike, it would be very difficult to imagine any scenario which would have thrown the small states together into even a temporary alliance of mutual interest and intention.

There was no “there” there, in essence, in spite of Henry’s strenuous insistence to the contrary. And yet, however unlikely the scenario he described really was, and how little cause he had to fear it himself, the flaw which he cited in the amendment process embedded in the proposed constitution was arguably as problematic in practice as he affirmed it to be. The process in question was to function by way of a multi-part division of responsibility and affirmation. As described in Article V of the proposed constitution, 

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which […] shall be valid to all intents and purposes […] when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof […] provided that […] no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Taking this arrangement under consideration, Henry remarked to his colleagues in the Virginia Ratifying Convention with wholly unguarded condescension that though the Framers claimed, “There is a plain, easy way of getting amendments,” it was his considered opinion that this was manifestly not the case. “When I come to contemplate this part,” he declared accordingly, “I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut.” The root of Henry’s concern, it seemed, lay in the aforementioned requirement that two-thirds of the state legislatures concur before an amendment could be accepted.

            Granted, Henry also took issue with the means by which amendments were to be proposed. Supposing it likely that some portion of either the membership of Congress or of the various state legislatures – i.e. the two bodies authorizes under the proposed constitution to initiate the process of drafting and ratifying alterations to the same – was bound to be composed of men whose success was the product of intrigue and corruption rather than industry and integrity, he though it unlikely that such, “Unworthy hands [,]” would, “Relinquish powers already in their possession” by agreeing to modify the source of those powers. The portion, he affirmed, need not have been large; only slightly more than a third of those so empowered need have maintained their opposition to a given amendment for the project to effectively be strangled in its crib. Notwithstanding the validity of this complaint, however, it was the next step of the process that seemed most to raise his hackles. The major problem that Henry identified within the amending formula was that three-fourths of the state legislatures needed to ratify an amendment before it could be adopted. Citing the aforementioned likelihood that, “In such numerous bodies, there must necessarily be some designing, bad men [,]” he went on to break down the numbers involved in successfully frustrating the passage of a proposed amendment once it had been sent to the states for consideration. “Four of the smallest states,” he began,

That do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of the people may reject these amendments […] A bare majority in these four small states may [thus] hinder the adoption of amendments; so that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments.

Laying aside, for the moment, the likelihood of something like this actually taking place, it would seem prudent to first briefly evaluate the accuracy of Henry’s arithmetic.

            At the time that the oration being here considered was delivered in June, 1788, the United States of America was as yet comprised of only the former Thirteen Colonies. Vermont did exist as a distinct political entity, with a government and a constitution very much paralleling those of the thirteen American states, but it would not become the fourteenth state until New York gave up its objections to the same in 1791. It therefore follows accordingly that in order for an amendment to be successfully adopted would have required the affirmation of the legislatures of at least ten states, three fourths of thirteen being nine and three quarters. Henry’s affirmation that the opposition of only four states could successfully thwart the passage of a proposed amendment was therefore nominally accurate. Turning, then, to the question of population, the first census conducted by the United States Government as required by Article I, Section 2 of the Constitution recorded that in 1790 there were just short of four million people – 3,929,214 to be exact – living in the various American states. Of those, the four states with the smallest populations were Delaware (59,096), Rhode Island (68,825), Georgia (82,548), and New Hampshire (141,885). By way of comparison, Virginia (691,937) had the largest population, followed by Pennsylvania (434,373). Adding the populations of the four small states together, they collectively accounted for 352,354 people, or, as Henry indeed declared, less than an tenth of the total population of the United States of America.

On the subject of the state legislatures themselves, it may be said with a fair degree of confidence that Henry’s figures once again add up with remarkable precision. In Delaware, seven of nine councilors and sixteen of twenty-one assemblymen (representing about 45,000 people) could have defeated a constitution amendment. In Rhode Island, the ratio would have been thirty-four of sixty-six representatives, or about 35,000 people. In Georgia, the numbers add up to six of eleven senators and of eighteen of thirty-four representatives, representing approximately 44,000 people. And in New Hampshire, seven of twelve senators (accounting for about 83,000 people) would have come to the right total. Added together, this critical mass of elected representatives could be said to stand for about 207,000 people, which would have amounted to about 5% (or slightly less than one twentieth) of the population of the United States of America in 1790. Thus, without the aid of such resources and technologies as modern demographers take entirely for granted, Patrick Henry accurately calculated in 1788 that, under the auspices of the proposed constitution, the representatives of something like 5% of the American population could have defeated an amendment otherwise approved by the representatives of the remaining 95%. In truth, this represents no small feat on Henry’s part – indeed, one wonders how he could possibly have accomplished such a thing. And it is frankly stunning to learn that so small a portion of a community should have been able to prevent a majority of the whole from seeing its desired objective accomplished. All the same, neither of these revelations would seem to do very much to buttress Henry’s core contention.

In spite of the fact that Henry was absolutely correct in claiming that less than a twentieth of the US population in 1788 could have effectively prevented the passage of an amendment approved by the remaining inhabitants, the likelihood of this actually taking place remained exceedingly low. The four smallest states which he pointed to as being able to collectively accomplish this feat – again, that’s Delaware, Rhode Island, Georgia, and New Hampshire – had hardly anything in common between them. In 1788, Delaware and Georgia both continued to recognize the institution of slavery while New Hampshire and Rhode Island had abolished it. Delaware was a tiny state on the Chesapeake whose history and political culture were closely tied to Pennsylvania. Georgia was the southernmost state in the American union, bordered on Spanish Florida, and possessed territorial claims extending as far west as the Mississippi River. Rhode Island and New Hampshire were both small New England states heavily involved in Atlantic commerce. The latter was enclosed on two sides by Massachusetts and Connecticut while the former shared a frontier with British Quebec. Notwithstanding the occasional axis of interest which might have connected any two of these states at the time that Henry was speaking, it would be very hard to imagine that a proposed amendment likely to affect all four in such a way as to influence them towards rejection – without also inducing the same reaction in any other state – would ever find its way through Congress. The things that would have caused Rhode Island and New Hampshire to reject an amendment to the Constitution would almost certainly have caused Massachusetts to react in exactly the same way. Just so, it would be hard to imagine in 1788 that the government of Georgia could have found fault with something that Virginia or the Carolinas did not also have cause to abhor. Whatever alliance small states like those here named might have made during the events of the Philadelphia Convention, the adjournment of that body had served to return them to their traditional alignments and rendered further cooperation between them a practical impossibility.

            The truth, of course, is that Henry almost certainly did not fear that the four smallest states in the American union in 1788 would for some reason find common cause to thereafter prevent the adoption of a given amendment to the proposed constitution. It would have been a foolish thing to be afraid of, and Henry’s career had yet to demonstrate that foolishness was a quality he notably possessed. What actually caused him anxiety – as his reaction to the Jay-Gardoqui Treaty made clear – was the thought that the people of some other state(s) could adopt a set of provisions for their own purposes and on their own initiative that would nevertheless bind the people of Virginia in turn. In part, this was likely a matter of principle. While Henry had showed himself to be an early and enthusiastic supporter of the concept of a union of American states, his belief in political cooperation was seemingly contingent on the selfless behavior of the participants thereof. So long as the representatives of Virginia, and Massachusetts, and New York, and Pennsylvania all agreed to think and act in concert, and thus to partake only in initiatives which would serve to benefit all involved, then Henry would doubtless continue to count himself a firm and appreciative nationalist. But in the event that a bare majority of the states represented in Congress endeavored to enact a measure which would have profited their number while impoverishing the minority, he would no doubt just as swiftly repudiate the very concept of American unity as a but a new gloss upon the principle of tyranny. As per the convictions he had been expressing since his public career began in the 1760s – in court during the Parson’s Cause in 1763, in the House of Burgesses during the Stamp Act Crisis in 1765, and in the Second Virginia Convention following the passage of the Intolerable Acts in 1775 – a sovereign people could not rightly be made to accede to the authority of any law but that which flowed from their own choices and desires. The point at which the proposed constitution countermanded this basic principle was accordingly the point at which Patrick Henry began to voice his opposition.

Granted, under the terms of the Constitution Virginia stood to possess representation in Congress proportionate to its population, and would thus have held greater sway over the initial passage of amendments than most other states seat in Congress. But the fact that its expressed will could still have been defeated by an alliance of states representing far few people was surely still a galling reality for the citizens of that state to have to face. It is at this point that one is given to wonder whether pride did not also enter into Patrick Henry’s thinking. Virginia, in 1788, was a very large and very powerful state – indeed, the largest and most powerful in America – and its inhabitants had doubtless become accustomed to the thought that their collective strength was theirs to wield as they saw fit. Little time had passed since the Old Dominion counted itself among the most loyal of Britain’s American colonies, of course, but it had passed all the same, and the authority of Congress had been so lightly felt in the interim that Virginians were well within their rights to believe that submission to any authority but that of their own government was no longer acceptable either morally or practically. Far from being any longer dictated to, it was now Virginia’s time to dictate to others. The creation of a larger, more powerful government which Virginia would in turn be bound to obey therefore surely struck many of the inhabitants and statesmen thereof as cause for no undue amount of concern. They might have seen their way clear to approving of it, however, provided they could be assured that their prestige and their power would permit them certain advantages.

The allocation of seats in the House of Representatives most certainly qualified as just such an advantage, as did the addition of three fifths of all slaves to the official count of the free population. But the amending formula was a definitely a worry, and one which did not seem to have an easy solution. If Virginia was going to willingly join this consolidated union of states, the ability to alter the nature of that union would need to be easily accessible. More to the point, it would need to be at the disposal of that union’s most powerful constituency. Doubtless this seemed only logical to men like Henry – after all, what was the point of being the dominant state in a federation if said state could not reliably dominate the others? – but it was most certainly not what the relevant clause of the Constitution augured. While it may have been the case that the representatives of Virginia on the state and federal level thereafter consistently succeeded in securing the adoption of such amendments at they believed would benefit their constituents, it was also possible that none of the advantages that the Old Dominion was due to enjoy would be enough to force through the constitutional modifications that its inhabitants desired. Indeed, as Henry very accurately enumerated, it was possible that a collection of states whose combined population was less than half that of Virginia’s could have frozen the proposed constitution in place by offering their steadfast resistance to any alterations. Granted, this would also have meant that the balance of power between the state governments and the federal government as described in the proposed constitution was unlikely to change for the worse. If four small states could stand in the way of the passage of potentially useful amendments, Virginia could certainly have found allies enough to stand in the way of the adoption of potentially detrimental ones. But in the meantime, a government which more than a few people in more than a few states were already somewhat uncertain about would very possibly remain as it was, flaws and all, dangers and all, notwithstanding what the majority of its inhabitants desired or attempted.

Taking all of the above under consideration, the “doomsday scenario” which Henry offered in his speech to the Virginia Ratifying Convention in 1788 – whereby the four smallest American states might successfully stand in the way of amendments favored by the remaining nine – was almost certainly intended to be something of a feint. The figures that he quoted were most definitely accurate, and the flaw that he exposed was almost exactly as he described it. But the concept was itself more fear-inducing than likely that the four states indicated should ever actually find cause to act in the way that Henry described. As it would be difficult to imagine that Henry was not aware of this fact, the likeliest conclusion would seem to be that his intention was to cause anxiety as much as it was to alert his countrymen to a legitimate danger. It wasn’t that Virginia, upon ratification, would be forever bound to a government that was as imperfect as it was powerful, and forever incapable of seeing through the necessary reforms. It was that Virginia, powerful, prosperous, and at long last master of its own destiny, might not be able to exert its will within a consolidated American government with as much facility as its citizens believed it ought to. Indeed, it might even have been possible that Virginians would end up bound to the will of peoples they far outnumbered. Imagine that, Henry seemed keen to ask his countrymen; imagine that, unlikely as it may be, and ask yourselves if you can stomach even the slightest chance of it coming to pass.

The statistical probability, then, is not what Patrick Henry feared, or even the mathematical possibility that the terms of Article V made manifest. Rather, it was what the existence of such a possibility implied; that by agreeing to ratify the proposed constitution, Virginia would be forced to simultaneously acknowledge that its destiny was not necessarily its own to determine and that its hard-won sovereignty in fact had limits. This could not have been an easy thing to confront, of course, and it would be fair to say that Henry did not react easily to it. All the same, his core contention was a valid one. The states did stand to lose some portion of their sovereignty upon agreeing to adopt the proposed constitution, and the amending formula did make it possible for an alarmingly small portion of the American population to defeat amendments approved by the overwhelming majority of the same. Henry may have exaggerated the effect of these aspects to a degree which would now seem difficult to justify, but the questions which he ultimately posed definitely needed to be asked.        

Speech to the Virginia Ratifying Convention, Part II: “Its Oppressive Operation”

            In many ways the Virginia Ratifying Convention (June 2^nd – 27^th, 1787) represented the ideal political environment for someone like Patrick Henry. Though ostensibly structured like a legislative body, its members were free to approach the topics at hand – i.e. whether to approve or reject the proposed national constitution – by whatever means they saw fit. There were no set procedures, no precedents that demanded to be observed, and no outcome required beyond either a negative vote or a positive vote. Henry, whose effectiveness as a political actor tended to suffer whenever he was forced to contend with institutional constraints, was accordingly unburdened within the context of the Convention from the need to obey almost any form of restriction save his own sense of propriety and the patience of his colleagues. So long as he had the floor, he could turn the debate towards any subject that crossed his mind, to the point, even – as had been the case during the final stage of the Parson’s Cause in 1763 – of altering the terms of the discussion in order to suit his rhetorical ends. Doubtless he had some sense of the degree to which his countrymen would indulge him, and so would not have ventured to push his luck to the breaking point. But the fact that the indulgence of his fellow Virginians was all he need have concerned himself with was most definitely a point in Henry’s favor. So long as they allowed him to talk, he would talk. And so long as he was talking, he was in his element. The people of Virginia had long shown themselves eminently susceptible to his rhetorical charms, and though over a decade had elapsed since “Give me Liberty or Give me Death” was on the lips of Americans from Oxford, Maine to Augusta, Georgia, neither his tongue nor his wit had lost their keen edge.

            Then again, in many ways the Virginia Ratifying Convention represented the absolute worst political environment for Patrick Henry in particular. Yes, his abilities as an orator had not dulled much since the height of his popularity in the 1770s. And yes, the lack of established procedure within the Convention most definitely favored his free-form approach to debate. But a great many things had occurred between the early 1760s and 1787. He reputation among the general population of Virginia may not have lost its luster in all that time, but his fellow statesmen had come to understand and account for what they perceived to be his strengths and his flaws, and were comparatively less likely to be moved by his words in relation to the proposed constitution than they had been when he first sought to address the mounting conflict between Great Britain and the Thirteen Colonies. Indeed, so unaffected had his countrymen become that they more than once took steps during the latter half of the 1770s to sideline Henry by offering him posts that were abundant in prestige and severely deficient in authority. His oratorical abilities, to be sure, never ceased to be the object of universal acclamation. But at some point Henry’s colleagues among the Old Dominion’s political elite had decided that stirring speeches were about all they really wanted from him. The fact that the Ratifying Convention represented the rare instance in which the right speech could exert a dramatic effect upon public policy therefore likely gave cause to many of delegates elected to the same to look upon whatever Henry said therein with an abundance of skepticism. Granted, certain of the younger members – like John Marshall (1755-1835), his cousin Humphrey Marshall (1760-1841), and James Madison (1751-1836) – had come of age during the height of Henry’s popularity in the 1770s, and were perhaps less likely than some of their colleagues to call into question the wisdom of whatever it was Henry had to say. For the elder statesmen among them, however – the likes of Benjamin Harrison (1726-1791), Edmund Pendleton (1721-1803), and George Mason (1725-1792) – Henry was too well-known for them to be easily swayed by his arguments.

            Bearing this all in mind, it stands to reason that the favorite son of Hanover County must have known going into the Convention that his position was something of a precarious one. Though he was freer, now, to speak with the expectation of shaping policy than at almost any point since 1775, he was also going to be surrounded by people who in large part knew him well enough to see his rhetoric for what it was. The likely result was that Henry was forced to choose his words with exceptional care. Rather than charge ahead with whatever argument he really wanted to make and expect the sheer force and dynamism of his rhetoric to carry the weight of actually convincing those who weren’t otherwise of like mind, he would have to build momentum by addressing certain points of political philosophy to which he was sure his audience would respond. Rhetoric, of course, had its place here – not that Henry could likely help himself from now and then giving way to flights of oratorical fancy – but the occasion called for something a bit more substantial in the main than a well-phrased call to action or the precisely-timed repetition of words like “liberty” and “tyrant.” The result would appear to be a more layered approach than was usually the norm for a Patrick Henry oration. At times the assertions he sought to make likely did reflect a sincere belief on his part. At others they were more probably the result of a need he felt to appeal to an audience more apt than most to question his judgment. And on yet another set of occasions – during which he notably held forth with affirmations that bore only a tangential relationship to reality – he likely only intended to win the argument at hand. Regardless of which of these categories a given assertions falls into, of course, each is in itself highly revealing of some aspect of Henry’s style as an orator, his beliefs as a statesman, or his perception of the issues that most concerned his fellow Virginians.

            Consider, to that end, the degree to which Henry devoted certain portions of his speech to an exploration of some of the worst-case scenarios that could possibly have resulted from the adoption by the American states of the proposed national constitution. In some of these cases it seems likely that Henry was speaking from a place of legitimate concern. In others, however, it is not so clear whether he was expressing a fear of his own or attempting to pander to an audience perhaps more sensitive than he was to some of the implications of a consolidated union of states. An example of the former involves the degree of cooperation Henry foresaw taking place between the various branches of the proposed national government at the expense of the both the states and the inhabitants thereof. Referring to what he perceived to be the obvious implications of two clauses from Article I, Section 8 – which between them state that Congress possesses the power, “To lay and collect Taxes, Duties, Imposts and Excises” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested […] in the Government of the United States” – and the substance of Article VI – which avows 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” – Henry bitterly concluded that,

This Constitution can counteract and suspend any of our laws that contravene its oppressive operation; for they have the power of direct taxation, which suspends out bill of rights; and it is expressly provided that they can make all laws necessary for carrying their powers into execution; and it is declared paramount to the laws and constitutions of the states.

The reason that a government so empowered might attempt to exploit these provisions was evidently a rather simple one. “Besides the expenses of maintaining the Senate and other house in as much splendor as they please,” Henry avowed, “There is to be a great and mighty President, with very extensive powers—the powers of a king. He is to be supported in extravagant magnificence; so that the whole of our property may be taken by this American government, by laying what taxes they please [.]”

            In point of fact, Henry was not incorrect in his assessment of the powers which the proposed constitution sought to bestow upon a consolidated American government. Congress was indeed intended to possess an absolute – if not exclusive – right of taxation far in excess of anything which the Articles of Confederation had seen fit to bestow. Likewise, whereas the powers possessed by Congress under the auspices of the Articles were both limited and very strictly defined, the “Necessary and Proper Clause” opened the door for a potentially generous interpretation of federal authority whose lack of formal delineation rendered it inherently vulnerable to potential abuse. And then there was the “Supremacy Clause,” the purpose of which was unmistakably to ensure that the national government would always possess the final say as to what was and was not permissible under the laws of the United States of America. At no point did the Constitution, the Framers, or the Federalist Papers affirm that these powers would be used, or even could be used, in combination as Henry described to systematically strip the American people of all they possessed for the purpose of propping up a kind of republican aristocracy, of course. On the contrary, there were perfectly logical reasons behind the inclusion of each of these clauses within the final text of the proposed constitution.

The expansion of the power of Congress to lay and collect taxes was a response to the persistent inability of that same body to maintain anything like a consistent revenue stream under the authority of the Articles of Confederation. Entitled only to “requisition” the states without being able to either deploy its own revenue agents or punish non-compliance, Congress consequently struggled to fulfill the various financial obligations it had taken on during the Revolutionary War – such as paying off the debts it had accrued or fulfilling the back pay of Continental Army veterans – to the detriment of the American republic’s reputation both at home and aboard. Likewise, in light of the manifest deficiencies of the limited and anemic government framed by the Articles, the Framers designed the Necessary and Proper Clause to give the resulting consolidated administration the necessary flexibility to confront whatever unanticipated challenges might at some point stand in the way of its successfully promoting the welfare of the American people. The creation of the Supremacy Clause followed exactly on this kind of proactive and pragmatic reasoning. Whereas Congress under the Articles had been completely incapable of enforcing the terms of a given commercial or diplomatic agreement upon the various states, or of preventing individual states from negotiating agreements on their own – once again resulting in a loss of respect for the American government among potential diplomatic or financial partners – the relevant clause of Article VI was intended to remove any doubt as to the ability of the government of the United States to speak and act confidently on behalf of its many and various constituents.

None of this is to say, however, that the scenario which Henry described was wholly outside the realm of possibility. If, under the auspices of the proposed constitution, Congress and the President decided between them to transform the government of the United States into a lavish, pseudo-monarchical court, they could attempt to fund the resulting pomp and ceremony by way of the taxing power of the House of Representatives. Provided that the Supreme Court successfully identified the authority invoked to justify the relevant allocations with some power or responsibility bestowed upon Congress by the Constitution, suits brought by the states in protest could be defeated and a uniform order whereby the ability of the federal government to appropriate whatever it wanted for whatever purpose it desired could be enforced. Granted, this would seem to represent a spectacularly unlikely outcome. Given the popularly-elected nature of both the House of Representatives and the Presidency, demagoguery – whereby candidates for office seek to use some combination of patronage and populism to secure and maintain their hold on power – would seem a far more likely source of corruption than the emergence of a conspiratorial cabal. Rather than suffer for being too much separated from the American people, these institutions would accordingly seem more inclined to suffer from being too close. Supposing that this inherent quality which they both possessed failed to stop the House and the President from conspiring to enrich themselves at the expense of the American people, however, the presence of the Senate – the members of which were to be chosen by the various state legislatures – would appear to provide the requisite check upon such tyrannical ambitions.

For any bill – including those levying taxes – to achieve the force of law under the authority of the government framed by the United States Constitution, the positive affirmation of the House of Representatives, the Senate, and the President are required. To Henry’s thinking, as expressed during the Virginia Ratifying Convention, the fact that each of these three bodies was independently responsible to the American people was a relatively trivial barrier to their conspiratorial cooperation. Notwithstanding the fact that Representatives and the President were both subject to relatively frequent election – thereby seeming to offer a substantial incentive to undertake behavior approved by the majority of the electorate – it was possible that these offices could have been filled by individuals adept at presenting the image of integrity while secretly pursuing personal enrichment. Furthermore, having identified in each other a shared motivation to seek wealth and power through the manipulation of popular sentiment, it was also possible for a given set of Representatives and a given President to forge an alliance for the purpose of mutual gain. Provided that some portion of the wealth gathered to the House by the levying of taxes was siphoned off to the President in question, said President might very easily and very logically conclude that it was in their own best interest to sign whatever allocations were placed in front of them by Congress. As aforementioned, however, this only represents a portion of the elements necessary to defraud the American people as Henry affirmed would be the case under the proposed constitution. The membership of the Senate would also need to affirm the passage of the relevant allocations, and would thus also need to identify their interests with those of the House and the President.

This, too, was distinctly possible. Senators were bound to be as human as anyone, as susceptible to greed and ambition as any seeker after public office. But unlike either the elected Representatives serving in the House or the President of the United States, Senators were to be chosen by the legislatures of the various states rather than by the people at large. Granting that this would mean each Senator was directly responsible to far fewer people than each member of the House of Representatives – i.e. an absolute majority of state legislators as opposed to the majority of at least thirty thousand voters – it would still have almost certainly appeared to most observers in 1787 that the Senate appointment process constituted a form of election that was comparatively secure from potential corruption. Bribing the majority of the members of a state assembly – fifty-one people out of one hundred, say – may well have represented a much simpler task than attempting to influence the decision-making of fifteen thousand and one potentially scattered voters, but most of the constitutions that had been adopted by the states to that point at least tacitly affirmed that serving legislators were either trustworthy enough or knowledgeable enough to exercise any number of responsibilities not otherwise allocated to the general electorate.

In Henry’s own home state of Virginia, for example, the offices of Governor, Councilor, Supreme Court of Appeals Justice, General Court Justice, Chancery Justice, Admiralty Justice, Secretary of State, and Attorney-General were all subject to appointment by a joint ballot of the General Assembly. While the reasoning behind this decision was not expatiated within the text of the document in question, it would nonetheless seem reasonable to conclude that the framers of Virginia’s first republican charter believed that the lawmakers to be chosen by the people of Virginia would be better qualified to fill certain offices than would those selfsame voters. Granting that the Framers of the proposed national constitution had slightly different reasons for placing the responsibility of appointing Senators in the hands of the various state assemblies – eager as they were to wrought a compromise between advocates of a consolidated government and a confederal one – this same basic assumption would nonetheless seem to apply just as well to the national government as to the state governments. And just as state legislators were exceedingly unlikely to appoint a governor whose policy positions clashed with their own, or whom they believed they would not be able to control, so it would seem to hold true that these same bodies would not choose to appoint Senators likely to vote against the interests of the relevant states. Far from taking solace in this dual protection, however, Patrick Henry indicted the Senate along with the House of Representatives and the President. In spite of the fact that he had himself been elected to five terms as Governor of Virginia by that state’s General Assembly, he evidently did not trust that same body – composed in the immediate of men he knew very well and had worked alongside for years – to appoint Senators whose loyalty would remain with the government of that state. To his thinking, it seemed, once a person became an officer of the federal government – no matter how they became an officer of the federal government – their priorities and their motivations could no longer be trusted.   

As paranoid as this undoubtedly makes Patrick Henry sound, it’s really not that difficult to imagine why he might legitimately have feared the emergence of a “federal interest” antagonistic to the needs of the individual states. Recall, to that end, the reason Henry chose not to attend the Philadelphia Convention and that quite probably conditioned his response to the end product of the same. Though in the 1770s he had been a staunch supporter of unity among the states and increased cooperation in Congress, certain events in the 1780s had done much to cast doubt upon his conviction that the nascent American republic had more to gain from a closer association than from continuing as a decentralized confederation. The abortive passage of the Jay-Gardoqui Treaty (1786) was undoubtedly the most alarming of these incidents, touching as it did upon the ongoing economic survival of the predominantly agrarian southern states.

While the Mississippi River was at the extreme edge of the sparsely-populated western land claims of Virginia, North Carolina, and Georgia, the end of the Revolutionary War in 1783 and the accompanying cession of a vast swath of territory in the North American interior to the nascent United States meant that the free navigation of this inland waterway would very shortly prove vital to the growth and prosperity of any communities that had begun to settle in its vicinity. Spain’s closure of the port of New Orleans at the mouth of the Mississippi to American traffic in 1784 made this fact powerfully apparent; no longer able to move their produce downriver to the Gulf of Mexico and then on to markets in Europe, farmers in the increasingly productive Trans-Appalachian West faced the immanent destruction of their way of life unless some kind of action was taken. Though John Jay (1745-1829), then serving as United States Secretary of Foreign Affairs, was accordingly dispatched to Spain by Congress for the purpose of negotiating the resumption of American commercial traffic through Spanish Louisiana, the agreement he returned with entirely failed to address the issue in question. Having traded a twenty-five year moratorium on American travel along the Mississippi for access to Spain’s Caribbean colonies, Jay (a New Yorker) had evidently determined that the continued viability of the western communities claimed by the likes of Virginia and North Carolina were less important than the ability of Northeastern merchants to purchase from and sell to the Spanish West Indies. Though the agreement was subsequently defeated when put to a vote in Congress – thus leaving off the settlement of the New Orleans question until the passage of the Treaty of San Lorenzo in 1795 – southern statesmen like Patrick Henry were nonetheless abashed by the evident willingness of one portion of the American union to prejudice its interests over those of another.

Bearing this in mind, Henry’s evident fear in 1788 that the proposed federal government was likely to become a self-enriching cabal wholly impervious to the interests of the individual states is perhaps more clearly understood as a suspicion on his part – not without basis in fact – that, in the event they succeeded in attaining positions of influence within the federal government, certain elements within the states were likely to direct federal power towards fulfilling their own narrow desires rather seeking the prosperity of the United States as a whole. Consider, to that end, the possibility that the more populous northern states – wherein the majority of the American republic’s burgeoning commercial interests could be found – were almost certain to dominate both the House of Representatives and the Senate upon the election of the first Congress under the proposed constitution. Provided that the second or third President – George Washington almost universally considered the only choice for the inaugural chief executive – was himself a native of a northern state, what could possibly have stopped the federal government from pursuing any number of policies that exclusively benefited the commercial North at the expense of the agrarian South? The Southern states need not have been disenfranchised to accomplish this; they would still be able to elect Representatives and Senators, to submit their votes for President, and take part in debates in Congress. But so long as the Northern states enjoyed the advantage of population, and so long as the men they sent to Congress were content to ignore the interests of their Southern colleagues, the continued observation of these kinds of formal privileges would make no difference to the policies that the federal government ultimately pursued. In this sense, notwithstanding Henry’s evident tendency to characterize the proposed federal government as being likely to act with hostility towards the states and the American people as a whole, the sense of distrust he expressed during the Virginia Ratifying Convention was not without an entirely legitimate and self-evident cause. 

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 2^nd – 27^th, 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, 4^th 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 5^th – October 26^th, 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 21^st, 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 19^th, 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.