Speech to the Virginia Ratifying Convention, Part VII: A Great and Mighty Empire

One of the most sobering questions which Patrick Henry posed to his fellow delegates to the Virginia Ratifying Convention in the summer of 1788 was also one which at its core arguably possesses a perennial significance to just about any political endeavor in any context whatsoever. Citing admissions supposedly made by supporters of the proposed constitution that one of the advantages which a consolidated national government would confer upon the American people would be a resuscitation of their national image – particularly among the European nations which they were inclined to trade with – Henry expressed his unguarded contempt for any such inclination to attribute self-worth to such hollow pursuits as material splendor or foreign approbation. “Shall we imitate the example of those nations who have gone from a simple to a splendid government?” he asked. “Are those nations more worthy of our imitation?” In light of the sheer amount of effort that went into first drafting and then securing the ratification of the proposed constitution, and of the avowed virtues of the individuals responsible, it might have seemed more than slightly insulting to thus imply that the Framers and their allies were motivated solely by their collective ego. The authors of the prospective national charter, after all, included some of the most insightful, ingenious, and upright men to have ever served the United States of American in any capacity. And yet, in spite of their more sterling qualities, the Framers were still human. Their actions on behalf of the American cause during the late Revolutionary War – in Congress, state governments, and the various branches of the nascent American military – had most certainly earned them the gratitude of their countrymen and affirmed their credentials as public servants par excellence. But that same conflict had also exposed the extent to which these same men were given to fits of jealousy and pride, lusted after glory, and smarted at the implication that either they or their nation were in any sense inferior. Bearing this in mind, it was perhaps not so very unreasonable for someone like Patrick Henry to have asked his countrymen whether or not their motivations were perhaps shallower than they claimed. Perhaps, without knowing it, they had allowed the strains of vanity to overwhelm their sense of what was necessary and proper. Perhaps they had attempted to found a nation in order simply to satisfy their own feelings of self-importance.

It was, as aforementioned, a damning accusation, but not one which Henry believed was to be offered without cause. Whereas the people of the United States, he explained, had once thought themselves fit to treat with such European empires as France and the Dutch Republic on the grounds of mutual respect and consideration – evidenced by the Treaty of Alliance (1778) signed by the former and the reception of John Adams (1735-1826) as American ambassador permitted by the latter – the advancing years of the 1780s had witnessed an apparent shift in American self-perception. “An opinion has gone forth,” he thus avowed, “That we are a contemptable people […] we are not feared by foreigners; we do not make nations tremble.” In consequence of this evident loss of confidence in America’s reputation abroad, Henry perceived that the attention of his countrymen had wandered far and wide in search of some form of remedy. “The American spirit had fled from hence [,]” he claimed, “It has gone to regions where it has never been expected; it has gone to the people of France, in search of a splendid government—a strong, energetic government.” Notwithstanding the apparent strength and the demonstrable prestige which empires like that of the French most certainly enjoyed, however, this could not but have been a foolish endeavor on the part of the contemporary American people.

Perhaps France was a splendid, powerful nation whose reputation was rarely called into question among the nations of the world. But at what cost had the French people purchased this privilege? “What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government—for the loss of their liberty?” The French were hardly a free people at the end of the 18^th century. Their society was highly stratified, and their king possessed of near-absolute civil, political, and military power. Is this what the American people wanted for themselves? Was this a fair price for splendor? Henry plainly thought otherwise, though his countrymen appeared to him captivated by the trappings of the same. “Some way or other we must become a great and mighty empire [,]” he claimed was their conviction; “We must have an army, and a navy, and a number of things.” Lusting after such symbols of power seemed to Henry yet novel in the course of the American experience, and represented a most unwelcome change from former habits. “When the American spirit was in its youth,” he thus avowed, “The language of America was different: liberty, sir, was then the primary object.” The evident change in focus was indeed a stark one, but perhaps not as unexpected as a cursory glance might otherwise indicate.

Republicanism, by the late 1780s, may have become the dominant ideological foundation of society and government in the United States of America, but much of what had moved and continued to move individual Americans was explicitly un-republican. This was in no small part the case because the contemporary inhabitants of the American republic, notwithstanding the transformative experience of the Revolution, were still very much products of a complex web of cultural assumptions that were distinctly European in origin and imperial in character. Americans were accustomed to a less rigid stratification of society, it was true, when compared to their British or French counterparts, and they had come around to a wholesale rejection of hereditary authority within the realm of politics. But they still held fast to certain attitudes and expectations that equated social status with individual worth. Consider, by way of example, the character of the Continental Army, with particular reference to its corps of officers. Notwithstanding the cause for which the men in question were fighting – i.e. the recognition of the sovereign rights of the inhabitants of British America; later the independence of the same from British rule – several of the most prominent among them demonstrated as ardent a devotion to personal glory and public acknowledgment as to the ultimate success of their stated objective.

Charles Lee (1732-1782), for example, who served as the de-facto second-in-command of the Continental Army between 1775 and 1778, spent the early years of his professional career as something of military adventurer. Born in Cheshire to a Major General in the British Army, Lee enlisted in his father’s regiment as an ensign in 1747 – at the tender age of fifteen – became a lieutenant in 1751, and served in the North American theatre of the Seven Years War (1754-1763) between 1755 and 1760. The conquest of New France signaling the end of hostilities – and Lee’s ambitions apparently not yet slaked – he next returned to Europe and fought against the Spanish in Portugal in the early 1760s, offered his services to King Stanisław II of Poland (1732-1798) once the signing of the Peace of Paris (1763) resulting in the disbanding of his unit, and spent the latter half of the decade fighting Turks and seeking after the promotions which he could no longer expect in British service. Granting that Lee’s subsequent emigration to the Thirteen Colonies in 1773 was to some extent prompted by a sense of sympathy on his part for the plight of the American colonists in their ongoing conflict with successive British governments, sympathy nevertheless proved inadequate to entirely quench his thirst for the professional recognition he appeared to believe he deserved.

To that end, upon being informed of the outbreak of hostilities between American militiamen and British regulars in Massachusetts in April, 1775, Lee formally resigned his commission with the British Army in anticipation that he would be named Commander-in-Chief of the military forces thereafter authorized by Congress. He was, after all, perhaps the most experienced soldier then living in America, and one whose record of military success was clear and lengthy. When Congress ultimately selected George Washington to lead the Continental Army – in part because he was American-born and notoriously sober and fastidious compared to the British-born, crude, and unkempt Lee, and in part because Lee insisted on being paid for his services while Washington did not – Lee was accordingly outraged, loudly protested the supposed insult to his character, and formed an ongoing enmity against the man who he felt had stolen his chance for glory. “Washington,” he was thereafter heard to remark, “Is not fit enough to command a Sergeant's Guard.” His attitude did not much improve over the course of the subsequent conflict. Despite a relatively successful six-month stint as commander of the Southern Department through the summer of 1776, Lee spent the next several years complaining to Congress of Washington’s inadequacies and petitioning to have the Continental Army reorganized under his own leadership. When, in spite of having often disagreed with Washington’s strategies, Washington asked Lee to assume command of a vanguard force struggling to advance on the British at Monmouth, New Jersey in June, 1778 – a position which Lee had initially refused as being below the dignity of an officer of his station – Lee thus appeared intent on seizing the opportunity to demonstrate his military prowess.

The resulting engagement, though tactically inconclusive, was badly bungled on Lee’s part. Having failed to inform his subordinates of a sudden change in his plan of action, the units under his command were thrown into a disorganized retreat when suddenly faced with a numerically superior British force and no prospect of rapid reinforcement. Dressed down on the battlefield by Washington upon his arrival, Lee was at first thunderstruck, and then complained of bad intelligence. Though he ultimately seemed to accept in the moment that he had committed an error, the resulting court-martial saw him once more turn accusatory. Indeed, the court-martial itself was the direct result of his having charged Washington in a written missive with behaving towards him in a cruel and unjust fashion and demanding an official inquiry as a means of clearing his name. The hearing that followed saw Lee describe his failed attempt to coordinate a retreat at Monmouth as a “masterful manoeuvre” designed to lure the British into an ambush and characterize Washington’s account of the engagement as, “From beginning to end a most abominable damn'd lie [.]” Despite Washington endeavoring to remain detached from the proceedings so that he might not be accused of unduly influencing the outcome, his popularity with Congress and the American people nonetheless weighed heavily on the verdict. Found guilty on all three counts brought to bear against him – disobeying orders, conducting a “shameful” retreat, and disrespecting a superior officer – Lee was suspended from the Army for the span of a year, during which time he was challenged to several duels by certain of Washington’s junior officers and is known to have participated in at least one. When, in 1780, he sent yet another letter to Congress complaining of his treatment, the seated delegates decided finally to terminate his commission.

Granting that Charles Lee stands as perhaps the most notorious example of a certain kind of 18^th century European military officer who sought after glory above all else, several of the qualities which he took to an unpardonable extreme were present in many other officers who likewise served in the Continental Army during the Revolutionary War. Horatio Gates (1727-1806), likewise of British birth and a veteran of the British Army, arguably also came into American service precisely because of his inability to secure promotion at the conclusion of the Seven Years War. Lacking the money or the social connections to advance further than the rank of major, a frustrated Gates resigned his commission in 1769 and purchased a plantation in Virginia not far from Mount Vernon. He also, like Lee, immediately offered his services to the Continental Congress at the outset of the Revolutionary War in the spring of 1775, the result of which was his commissioning – at the urging of his friend and neighbor Washington – as the first Adjutant General of the Continental Army. While Gates, in this chiefly administrative role, flourished in a way that Charles Lee would surely not have been capable, he nevertheless did share his fellow Briton’s desire for recognition and often petitioned Congress for some kind of field command.

Though Gates’ request was ultimately granted when he was first given responsibility for the defense of Ticonderoga, followed by command of the entire Northern Department – during which he realized a significant victory over the forces of British General John Burgoyne (1722-1792) at the Battle of Saratoga – it appeared all the same that his ambition was not to be so easily satisfied. Like Lee, he, too, believed that leadership of the Continental Army should have fallen to him instead of Washington, though voiced his opinion in a much quieter, more cautious sort of way. Notably, he attempted to make use of his resources in Congress, and the goodwill generated by his victory at Saratoga, to achieve his desired objective by way of a petition signed by a number of his fellow officers. When this effort to replace the increasingly popular Washington was made public in the waning months of 1777, his supporters rallied to his defense and Gates was forced to apologize for his role in encouraging the plot. His subsequent command over the Southern Department heralded the end of his military career, culminating as it did in August, 1780 with a crushing defeat in South Carolina at the Battle of Camden. While the subsequent investigation into his conduct by Congress – most often a prelude to court martial – was ultimately stymied by his allies in that chamber, his reputation was nevertheless in shambles by the time the Revolutionary War formally concluded in 1783.

  

American-born officers were no less given to the kinds of egotistic impulses that arguably ruined the likes of Charles Lee and Horatio Gates, of course. Among Washington’s various military protégés were a number of young officers whose service in the Continental Army was in large part the product of – and was in large part shaped by – their shared desire for personal glory. John Laurens (1754-1782), for example, though born to one of the wealthiest families in the whole of British America and thus standing to inherent a tremendous fortune, chose instead to put aside the legal education that had been purchased for him at the prestigious Middle Temple in London – and leave behind his pregnant wife – to enlist in the Continental Army in the summer of 1777. Though initially serving in the role of aide-de-camp to Washington – a nominally administrative position – the young Lieutenant-Colonel nevertheless found himself often imperiled due to a combination of sheer recklessness and an abiding thirst for military adventure. Accordingly, between 1777 and 1781, he was almost wounded at the Battle of Brandywine (September 11th, 1777), took a musket-ball in the shoulder at the Battle of Germantown (October 4th, 1777), had his horse shot out from under him at the Battle of Monmouth (June 28th, 1778), shot the aforementioned Charles Lee in a duel (December 23rd, 1778), was wounded again at the Battle of Coosawatchie (May 3rd, 1779), was taken prisoner after the fall of Charleston (May 12th, 1780), and helped lead the successful – but exceedingly dangerous – capture of redoubt no. 10 during the Siege of Yorktown (October 14th, 1781). Notwithstanding the success which carried Laurens through each of these incidents, his evident sense of ego-driven carelessness was ultimately his downfall. Confined to bed with a fever for several days in August, 1782 outside British-occupied Charleston, Laurens nonetheless jumped at the chance to help intercept a British force sent from the city to forage for supplies near a redoubt on the Combahee River. When, upon approaching his assigned position and being fired upon by a numerically superior British detachment, Laurens ordered an immediate charge and was promptly cut down.

The wealth which he stood to inherent, the education which his father provided – at boarding schools in Switzerland and at the aforementioned Middle Temple – and the prospect of fatherhood and the life of a well-connected London barrister were evidently not enough to hold the interest of John Laurens. Glory was what he seemed to treasure most. The more dangerous the deed, the more he seemed drawn to it, and the brighter he felt his reputation would shine for their accomplishment. He was very brave, no doubt, and highly principled. Indeed, his opposition to slavery is well-attested, as are his numerous (though ultimately failed) attempts to petition Congress and the government of South Carolina to form a regiment of Black soldiers out of slaves granted their freedom in exchange for service. Leadership of this force would naturally have fallen to him, of course; its glories would have been his glories, its prestige a gloss upon his own. Even as late into the Revolutionary War as 1782, after having served for five years in some of the most famous engagements in American military history – including the aforementioned hand-to-hand assault at Yorktown – Laurens was yet still thirsty for fame, to the point that it arguably cost him his life. Tellingly, when later relating the events of the battle, a subordinate named William McKenna who was present at the moment of Laurens’ death remarked that, although the Americans were few in number, he seemed to believe they would be, “Sufficient to enable him to gain a laurel for his brow.” Indeed, McKenna observed, it appeared as though the young colonel, “Wanted to do all himself, and have all the honor.” 

John Laurens’ close companion and fellow aide-de-camp Alexander Hamilton (1755-1804) – incidentally, one of the principle authors and supporters of the proposed constitution to which Patrick Henry expressed his vehement opposition – seemed likewise to have been motivated in no small part by a sense of ego during his service in the Continental Army. Born and rasied in the West Indies – the Leeward Islands and the Virgin Islands, specifically – Hamilton first arrived in the Thirteen Colonies in October, 1772 after his neighbors in Danish Christiansted succeeded in raising a fund in furtherance of his education. Not long after his arrival, after beginning his studies at King’s College – now Columbia University – in New York City, he became involved in a dispute with Anglican clergyman Samuel Seabury (1729-1796) over the ongoing conflict between the colonies and Parliament. Though but nineteen years old, Hamilton – writing anonymously – published a series of rebuttals to Seabury’s contention that all intercolonial assemblies like the Stamp Act Congress and the Continental Congress were fundamentally unlawful, in the process demonstrating a degree of confidence in his mode of expression and reasoning that rivaled – if not exceeded – that of his much older opponent. Thus flush with success, and having solidified his conviction that Congress was in the right and Parliament in the wrong, it should accordingly come as little surprise that his response to the subsequent commencement of hostilities in April, 1775 was to help form a provincial militia company and hurl himself headlong into the fray.

Owing, no doubt, to the youth of many of its members, the resulting New York Provincial Company of Artillery was something of a precocious outfit during the early years of its existence. Having impetuously raided the British position at the Battery for the cannons which resulting in it becoming an artillery company to begin with, the “Hearts of Oak” – as they became known – proceeded with similar gusto to participate in the Battle of White Plains (October, 28^th, 1776), the Battle of Trenton (December 26^th, 1776), and the Battle of Princeton (January 3^rd, 1777). Following the last of these engagements – during which the Hearts of Oak helped bring matters to a swift conclusion by bringing three of their cannons to bear on an entrenched British position – Hamilton found himself in the enviable position of fielding offers from several American commanders eager to add him to their personal staff. Though initially uninterested in trading the prospect of hard-won glory for correspondence and administration, he did ultimately give way to the invitation of the Continental Army’s Commander-in-Chief to become one of his aides-de-camp. During the four years that followed, Hamilton proved himself indispensable to Washington’s leadership of the American war effort, writing the general’s correspondence, acting as his emissary, and even issuing orders at Washington’s behest. At the same time, as Washington’s prestige increased – from a low following the numerous reverses of the New York campaign to being heralded as the “Father of his Nation” by the early 1780s – so, too, did Hamilton’s own political capital enjoy a similar upturn as he forged connections with members of Congress and politicians and political stakeholders from across the United States. Though his post-war prospects were accordingly secured by his stellar record of administrative competence and the promise of Washington’s continued patronage, he nevertheless continued to pine after the kind of military adventure he had experienced during the first years of the Revolutionary War. Indeed, so eager was young Hamilton – not yet thirty years old in 1781 – to once more “gain a laurel for his brow” that he was willing to risk his future prospects and his life for the chance to once more tread the field of battle.

This chance came, alongside that of the aforementioned John Laurens, during the Siege of Yorktown in the early autumn of 1781. After petitioning Washington, along with other officers, for the opportunity of a field command before the war came to its increasingly inevitable conclusion, Hamilton finally succeeded in swaying his patron by effectively threatening to resign his commission unless his desire was fulfilled. At long last relenting, Washington assigned both Hamilton and Laurens to command a company of light infantry tasked with taking redoubt no. 10 alongside a simultaneous French assault on redoubt no. 9 on October 14^th, 1781. The resulting action, fought at night and with bayonets and hand grenades, was a bloody, chaotic struggle, but one which ultimately resulted in the surrender of an entire British garrison. The siege concluded less than a week later, heralding the end of principle combat during the Revolutionary War and permitting Hamilton to safely retire form the Continental Army with the record of bravery and valor which he so ardently craved. The successes which he later enjoyed – appointment to the Continental Congress in 1782, the beginnings of a law career in 1783, the founding of the Bank of New York in 1784, and participation in the Philadelphia Convention in 1787 – almost certainly did not require that he have risked his life so brazenly. Nor, indeed, did his later service as the first Secretary of the Treasury of the United States of America. But Hamilton did seem to require in on some personal, emotional level. Like Lee, Gates, and Laurens, his ego seemed inextricably linked to the recognition of others of his martial prowess and the accolades that went with it. Hamilton believed, of course, in the cause for which he was fighting, as his adolescent polemics well attest. But the cause, in the moment, arguably mattered less to him and his comrades in arms than the fight itself. He, and they, wanted to be objects of awe and reverence whose efforts were reflected in the respect tendered to them after the fact. They wanted, in short, to be glorious.

Speech to the Virginia Ratifying Convention, Part VI: Human Nature

The possibility that a declaration of rights could yet have been added to the text of the proposed constitution, while no doubt a source of comfort to those who were on the verge of being convinced of the necessity of its adoption, was necessarily lost on the likes of Patrick Henry. Even if he hadn’t been otherwise convinced that the amending formula was hopelessly flawed – being weighted in favor of small states – his perspective on human nature ruled out anything like the degree of trust with which the Framers seemed to regard the Representatives and Senators they had proposed to empower. Once possessed of the authority to intrude into the lives of their constituents in ways that the majority of the state constitutions explicitly forbade, Henry asked of his fellow delegates at the Virginia Ratifying Convention, why would even an elected officer of the proposed national government agree to lessen their own power?

   

Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.

By and large, this would seem a fairly convincing argument. History did tend, in the 18^th century – and does tend, in the 21^st – towards those in possession of power fighting tooth and nail to keep it or enlarge it rather than peacefully giving it up.

Take the American Revolution itself as a case in point. Successive British governments could have paid heed to the petitions offered by the various inter-colonial assemblies which sprang into existence between 1765 and 1775 and refrained from any longer attempting to affirm the legislative authority of Parliament over the Thirteen Colonies. That they did not, and rather chose to declare the assemblies in question to be rebellious and criminal, was far from surprising. Taking it as their right and their duty to regulate the economy of the burgeoning British Empire, the relevant MPs and ministers doubtless believed that consulting with a set of colonies on the far side of a vast and turbulent ocean every time they wanted to levy an import duty represented an unacceptable obstacle to the timely completion of their work. At the same time, these individuals also no doubt regarded the idea of taking any kind of direction from a party of backwoods frontiersman who seemed in no position to offer real resistance to be tantamount to an insult to the dignity of Parliament and to the authority of the ministers of the Crown. Whether it was a matter of efficiency or pride, of course, the end result was the same. The sitting government and its supporters in Parliament had power, and they’d be damned before giving it up simply because they were asked to do so.

No doubt this would have been the most vivid example of what he was arguing for to those who heard Patrick Henry speak – a number which included Edmund Pendleton (1721-1803), who had served in the First Continental Congress and the Virginia Committee of Safety, Benjamin Harrison V (1726-1791), who was among the first in Virginia to sign a boycott against British goods in 1770, and the aforementioned George Mason. Having put their names to the remonstrances and suffered to be branded as outlaws by their sovereign, many of the Virginians whom Henry addressed were primed to respond in the affirmative that power was not easily surrendered by those who possess it, whether justice was demonstrably on their side or not. That being said, an equally impactful and equally recent incident could as easily have been called to mind whose substance would have at least partially discredited Henry’s core contention as to the nature of mankind. The incident in question – heralded by generations of observers as one of the greatest moments in American history – was the resignation as Commander-in-Chief of the Continental Army of George Washington (1732-1799) two days before Christmas in 1783.

Having serving in that selfsame capacity since June 19^th, 1775, Washington determined that the signing of the Treaty of Paris on September 3^rd and the departure from New York of the last of its British occupiers on November 25^th signaled the formal end of hostilities between the nascent United States of America and the Kingdom of Great Britain and completion of the task which he had agreed to take on eight years prior. In preparation for his subsequent departure from military life, he bid farewell to the Continental Army on November 2^nd at Rockingham, New Jersey, dined for the final time with his officers on December 4^th at Fraunces Tavern in New York City, and informed Congress of his intention to resign on December 19^th. Congress responded by inviting him to do so in person, and on December 23^rd – following a ball held the previous day in Washington’s honor at the Maryland State House where Congress was then meeting – the General read a speech before assembled delegates and handed his commission to their presiding officer, Thomas Mifflin (1744-1800).  He departed the next day for Mount Vernon and arrived in time for Christmas.

Though even at the time this was widely heralded as a remarkable act on the part of Washington, it was not in itself wholly without precedent. Many among his fellow Americans heralded the former general as the greatest gentleman of his age for willingly surrendering what was perhaps the most powerful single office then in existence in the United States. Even George III (1732-1820), who had perhaps as much reason to despise Washington as anyone ever would, was heard to remark in 1797 to the American painter Benjamin West (1738-1820) that the act of his resignation made the master of Mount Vernon, “The most distinguished of any man living [and] the greatest character of the age.” But there was also a very obvious and very appropriate comparison which just about everybody with knowledge of the episode seemed unable to avoid making. George Washington, they said, was like a modern Cincinnatus who, having heeded the call of his countrymen, served his people tirelessly and well before returning to his humble farm. In point of fact, Lucius Quinctius Cincinnatus (519-430 BC) was a member of the patrician class born during the final years of the ancient Roman Kingdom who became famous for twice being granted the office of Dictator – a kind of temporary absolute monarchy enacted during emergencies – by the Senate of the Roman Republic only to surrender the associated authority after less than a month and return to his homestead beyond the Tiber. For his integrity, scrupulousness, and forbearance, Cincinnatus was lionized by subsequent generations of Romans as a model of statesmanship and the ideal of Roman virtue, to the point of becoming a kind of legendary figure in the culture of the Roman Republic.

For much the same reason, Cincinnatus also became a favorite of those members of the 17^th and 18^th century European Enlightenment who found particular inspiration in the history and politics of republican Rome. Seeking examples of self-sacrifice and nobility upon which to form a model of suitable political behavior amidst an era wholly dominated by hereditary monarchs and endemic corruption, Cincinnatus doubtless appeared to the reformers and philosophers then at work in Britain and the Continent as proof that it was possible to wield power selflessly and that ambition did not always have to triumph over honor. This was, of course, in spite of the fact that Cincinnatus was an avowed traditionalist who spoke loudly and often against the empowerment of the plebian class, and who first rose to prominence in Roman public life by steadfastly opposing the creation of a codified constitution during his year as Consul in 460/459 BC. His politics, however, were not what Cincinnatus was remembered for, nor even the specifically attested events of his life. Rather, it was the idea of Cincinnatus that fired the imaginations of the Roman people and their self-appointed successors in 17^th and 18^th century Europe. The legends that grew up around him were what mattered to those who held his name in high esteem, and in the telling they created the inspiration they needed to sustain them in their lives and work. 

Even as early as 1788, George Washington had come to occupy a similarly hallowed position within the nascent political culture of the United States of America. Like Cincinnatus, he had left behind a life of rural tranquility to take up the mantle of leadership thrust upon him by his countrymen during a moment of crisis, served as long as he believed was absolutely necessary, and then relinquished his power so that he could return to his farmstead. The parallels were almost too perfect, and in truth the American people were almost certainly in need of a figure to unite and inspire them in the same way that the people of ancient Rome had seemed to need Cincinnatus. To be sure, none of this was lost on the likes of Patrick Henry, given though he seemed to be to a kind of habitual suspicion of power and fame. A large part of what allowed the Framers to propose the creation of a singular chief executive possessed of relatively wide-ranging powers had been the almost certain knowledge that Washington would be the first person upon which the office would be bestowed. If Henry harbored any objection to this outcome, he never gave voice to it, and his relationship with the master of Mount Vernon remained convivial throughout the remainder of both their lives. But it also would have been entirely in keeping with his accustomed approach to questions of political economy to concern himself with the long term consequences of short term thinking. Washington may yet have served, and in that case the United States would be in the safest hands imaginable. But what of the Representatives and Senators who would serve alongside him? And the justices of the federal courts? And the presidents that would follow? Could any of them be depended on to act with the integrity and forbearance of a Washington, or would they behave as Henry insisted all men were bound to and seize what power their countrymen had foolishly placed in their hands?

This is where the Framers doubtless hoped that the ideal of Cincinnatus would come to bear fruit. Legendary though he had largely become, the story of ancient Rome’s shortest serving Dictator had nevertheless served the useful purpose of inspiring countless generations to aspire to humility and virtue amidst the hardships of a world that did little to reward either. Granted, the Roman Republic existed within a socio-historical context rather much divorced from the reality of the United States of America in the late 18^th century. Luckily, there existed a far more modern example of exactly this kind of selfless behavior for contemporary Americans to embrace and emulate. Cincinnatus, it bears admitting, had become something of a cipher in the tens of centuries since his life and death. But George Washington was a man who yet lived, and breathed, and could be understood on terms familiar to the contemporary American mind. He had been a farmer, and a statesman, and had served his country long and well in the role that had been thrust upon him by the events of the moment. And then, like a figure out of legend, he’d done something which Patrick Henry had affirmed, “Human nature never was, nor ever will be, capable of [;]” he’d given up the incomparable power that his countrymen had willingly placed in his hands and retired to a life of private enterprise.

Not everyone could be expected to behave in this way, of course. Indeed, it would seem entirely fair to say that very few ever did or ever would. And yet, of his own accord, George Washington had, and in a very public way. The knowledge of his selflessness may not have thereafter transformed the political culture of the union of American states, of course. But, like the distant, mythologized figure of Cincinnatus to whom he was often compared, it was entirely likely that his behavior would serve as an inspiration to others to lay aside their ambitions and desires and act in a manner which they knew to be virtuous and just. If nothing else, Washington’s existence was at least proof of something very important to the prospect of stable republican government: that sometimes, in apparent defiance of their own selfish interests, people could be selfless, and noble, and reject the temptation of power. It did happen, and therefore it could happen. This fact did not necessarily rob Henry’s assertion of its essential force and cogency. It would have been far more sensible to think of George Washington’s abiding selflessness as an exception to the rule of human behavior rather than something that could be counted on to very often recur. All the same, failing to acknowledge it at all did weaken Henry’s position somewhat, making it appear as though he had either failed to consider the significance of Washington’s resignation or that he simply had no counter-argument. In actual fact, the reason Henry omitted any mention of the most prominent American of his age acting in a way which he explicitly affirmed was impossible almost certainly had everything to do with the rhetorical requirements of the moment. “People never give up power,” it bears admitting, sounds a fair bit snappier than “people never give up power, except for the odd occasion which you can neither predict nor count on.” And Henry was always one for the snappy declarative, as the general character of his oratorical career well attests, whether or not it strictly aligned with the myriad complexity of the actual facts.

Speech to the Virginia Ratifying Convention, Part V: Intolerable Despotism

Taking the thrust of Patrick Henry’s 1788 commentary to heart, one imagines that he would have raised far fewer objections to the prospect of Virginia taking its place in a consolidated union of states if the proposed constitution had included some of the kinds of protections which he glowingly cited from his home state’s Declaration of Rights. The framers of Virginia’s first constitution, he was exceptionally keen to point out, had been prudent enough not to take it for granted that the legislators chosen by the people of that state to makes such laws as were deemed necessary and proper could ever be trusted to exercise their responsibilities without at some point succumbing to avarice or ambition. Certain fundamental rights therefore needed to be protected, not in practice or in principle, but plainly and in print. In this, Henry seemed to take a certain amount of pride; and from this, he seemed to extract a certain amount of disdain. The people of Virginia, he doubtless would have agreed, had been wise enough not to trust even their own government with unchecked power. That the Framers had thought to pass off a national government possessed of as much power over the American people as that of any state government over its constituents wholly absent even a token set of restrictions on that power was accordingly either exceptionally naïve or unpardonably arrogant. Naturally, the supporters of the proposed constitution would have disagreed with this assessment, and offered a number of arguments against it. Those which Henry in his turn cited were sound enough in theory, though he gave them but short shrift in response.

For one, he affirmed, “We are told that we need not fear; because those in power, being our own representatives, will not abuse the powers we put in their hands.” Representatives in the lower house of Congress, it was true, would be elected directly by the American people on a district by district basis. And Senators and the President would each hold office at the discretion of some body of officials – be it the state legislatures or the Electoral College – that was in turn beholden to the population of the states. While this would in consequence seem a fairly solid guarantee that the individuals in question would not abuse the rights of the general population – the prospect of electoral defeat being a relatively reliable corrective – Henry was of the decided opinion that such things wanted a great deal more firmness. Free peoples, to his thinking, did not give way to tyranny by too aggressively guarding their sovereign rights. Rather, they were rewarded for their laxness by having their liberties abrogated by those whose intentions they should have conditioned themselves to regard with the utmost suspicion. “Happy will you be,” he thus exclaimed, “If you miss the fate of those nations, who, omitting to resist their oppressors, or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism!” While one might reasonably condense this argument into something along the lines of “better safe than sorry,” the core contention which Henry seemed to be addressing was nowhere near so facile.

Consider, to that end, another of the claims which Henry attributed to the supporters of the proposed constitution. “It is urged by some gentlemen,” he declared, “That this new plan will bring us an acquisition of strength—an army, and the militia of the states.” Though he did not elaborate any further than that, Henry’s intention would seem to have been to imply that his opponents were willing to contemplate a kind of philosophical trade. Granting that the proposed constitution was neither flawless nor foolproof, this faction was supposedly willing to ratify it anyway because it promised to confer upon the United States a quality of strength and prestige which would otherwise remain wholly beyond the reach of either the individual states or the national government as it existed under the Articles of Confederation. To this argument, Henry answered plainly and directly. “This is an idea extremely ridiculous [,]” he said. “Gentlemen cannot be in earnest. This acquisition will trample on our fallen liberty. Let my beloved Americans guard against that fatal lethargy that has pervaded the universe.” Notwithstanding the fact that Henry could not perceive any reason for the union of American states to require a sudden concentration of martial strength – “Is there a disposition in the people of this country to revolt against the dominion of laws?” he asked. “Has there been a single tumult in Virginia?” – the very idea of knowingly creating a government that was at once powerful and flawed struck him as being tantamount to a kind of spiritual suicide. “Most of the human race are now in this deplorable condition [,]” he thus cautioned, “And those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom.” The rationale which Henry held fast to – in this instance and in that which concerned the likelihood of unchecked authority to be abused – was that human beings simply could not be trusted with power.

            And what it was that the supporters of the proposed constitution were in actual fact endorsing? Lacking the kinds of explicit civil protections which were the norm for most of the state constitutions then in force, the national charter devised by the Framers in Philadelphia in the spring and summer of 1787 would have permitted the resulting consolidated government to exercise its authority in a number of areas which most contemporary Americans would otherwise have affirmed were beyond the scope of any institution to affect. The text of the aforementioned state constitutions serves quite effectively to demonstrate the extent to which this was in fact the case. The constitution of Virginia, for example, declared that, 

General warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Pennsylvania’s constitution meanwhile asserted that,

In all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country [.]

For its own part, the contemporary constitution of the state of Maryland affirmed that, “Retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.” At the same time, Georgia’s constitution decreed that, “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State; and shall not, unless by consent, support any teacher or teachers except those of their own profession.”

Clearly, in spite of the fact that the values inherent in these kinds of declaration – i.e. the sacrosanctity of the writ of habeas corpus, trial by jury, and freedom of conscience, and the fundamental illegitimacy of ex post facto laws and general warrants – might fairly have been assumed to possess universal favor within contemporary Anglo-American culture, the framers of the state constitutions herein cited nonetheless felt the need to explicitly codify their devotion to the same. Notwithstanding the fact that they themselves stood a reasonable chance of thereafter serving in the offices that their efforts had described – or that at the very least they would be helping to elect those who did serve – this heterogeneous group of men, working at different times and in difference places, almost all came to the common conclusion that the protection of certain basic civil liberties could not simply be left at the mercy of convention. In spite of the evident uniformity of this conviction, however, the proposed national constitution included no such provisions within any part of its text. What this would mean in fact was that the consolidated national government of the United State of America, once confirmed and established, would be under no formal obligation to observe any of the rights and protections which the majority of its citizens had already affirmed were too valuable not to be explicitly defined. Congress could accordingly pass ex post facto laws, the President could declare Hinduism to be the national religion, and the federal courts could speedily and summarily try defendants at the bar without the benefit of counsel or jury. Doubtless the American people would have revolted if all of these measures were enacted at once, or in any one of them were taken so far as to represent a clear and unambiguous gesture towards tyranny. But in the event that the Constitution remained absent a declaration of rights, the national government would yet be within its rights to attempt each of these acts, or all of them, or yet more of equal severity.

The Framers would no doubt have responded to this kind of accusation by reproaching their opponent(s) for engaging in hysterics. The men who drafted the proposed constitution were not foreigners who were attempting to impose a despotic regime upon a people and a culture with which they possessed only a passing familiarity. On the contrary, they were American statesmen, and farmers, and lawyers, and merchants who were themselves citizens of Virginia, and Pennsylvania, and Maryland, and Georgia. A number of them had in fact helped to draft the constitutions that had been adopted by their homes states, and an even larger number had served in the resulting state governments. In short, they were arguably among the last people whose intentions ought to have been called into doubt. They demonstrably valued the same things as their fellow countrymen, and there was accordingly no cause to suspect them of grasping at powers which they had already shown themselves to abhor. The basis of this argument might also have been applied to the character of the national government going forward. Just as the Constitution would affect Americans and had been drafted by Americans, it would likewise be in the hands of Americans once its various offices were filled. It could accordingly be taken as a given that the men who would eventually serve as Representatives, Senators, Justices, and Presidents would hold fast to the same values as those who elected them and who would feel the effects of their authority.

Intuitive though this kind of argument might seem, it still fails to address the larger issue presented by the absence of a declaration of rights in the text of the proposed constitution. Regardless of the fact that the officers of the consolidated national government were unlikely to infringe upon the rights of their constituents because they, too, were Americans who valued the same things as those they nominally served, they would still possess the legal right and the practical power to do exactly that. Representatives and Senators might agree that it would represent an unforgivable abuse of their authority to pass such laws as would retroactively punish those guilty of violating their provisions, but they would remain empowered to do so. Federal justices might affirm the inviolability of habeas corpus, and explicitly guarantee that every trial conducted in their courts would take place before a duly-appointed jury, but they would nevertheless remain free to abrogate the writ and the right as they believed it to be either necessary or desirable. And Presidents, though they would no doubt avow it as their duty to protect the civil rights of their countrymen from encroachments originating in any quarter, could still violate a number of those rights without in any way overstepping their explicit constitutional authority. So long as all of the officers in question adhered to the conventions embedded in the various states constitutions, this arrangement should not have proven in the least bit problematic. This would seem to be what the Framers believed would occur. But in the event that even one individual – one Representative, one Justice, one President – determined to seize the power that was their latent possession, convention would be the only force holding back the worst kinds of abuses that the absence of a federal declaration of rights might allow.

It need not even have be a particularly serious seizure of power for the rights of millions of Americans to be cast into doubt. Indeed, it might even be accompanied by public approbation. Consider, as a case in point, the sense of suspicion and the nationalist fervor that often accompanies a time of war. Suppose, in such an environment, that Congress determines, as a means of more effectively securing the domestic peace and security of the United States of America against the intrigues of saboteurs and spies, to pass a law which allows for the issuing of general warrants, the arrest of individuals without pressing specific charges, and the speedy trial of said individuals without the benefit of a jury. Consumed by that species of fear and apprehension which so often accompany sustained conflicts between nations, the American people might conceivably see their way clear to agreeing that such measures had become necessary, even to the point of celebrating the imprisonment and trial of supposed intriguers. In the moment, no doubt, there would seem to be little for the citizens of the American republic to fear from such an outcome. They’d not be the ones summarily arrested and tried, and national security in the meantime must surely be worth the abuse of a few ill-intentioned infiltrators. But even once the conflict in question was concluded, and the law in question allowed to fall into abeyance, the precedent would remain. At some point, for some reason, Americans will have allowed individuals to be searched by general warrant, arrested without being informed of their crimes, and tried absent the presence of a jury of their peers. In time, amidst changing circumstances and the vicissitudes of public opinion, what else might become permissible? Having previously directed federal power against foreign spies, why not shift the focus to similarly dangerous domestic criminals? If peace and security were important enough to violate the rights of a few during wartime, why should some misplaced sense of delicacy prevent a few more from suffering the same fate during peacetime? Nothing in the text of the Constitution need have changed to permit such things to occur. The power could be found exactly where the Framers had left it.

The Framers, of course, had never intended their efforts to give rise to these sorts of questions. Granted, contemporary records of the proceedings of the Philadelphia Convention show them approaching the issue of a national enumeration of right with what might now appear to be alarming brusqueness. Virginia delegate George Mason – principal author, it bears repeating of the Virginia Declaration of Rights – and Massachusetts delegate Elbridge Gerry (1744-1814) both suggested the addition of exactly those kinds of codified guarantees to the working text of the proposed constitution near the end of the relevant proceedings on September 12^th, 1787. The resulting motion was defeated after only a brief debate, the substance of which was that the protections embedded in the states constitutions would remain in force – and thus would remain effective – regardless of the absence of a federal equivalent. James Madison (1751-1836) – then an opponent of a national bill of rights – added that the state declarations were in reality only “parchment barriers” that provided little more than the illusion of security – as compared, one assumes, to the system of checks and balances embodied by the proposed constitution – while Pennsylvania delegate James Wilson (1742-1798) also cautioned that an explicit enumeration of rights would inevitably lead to those liberties not specifically described being thought of as effectively non-existent. This kind of reasoning notwithstanding, the Framers could hardly have been described as eager to erect a government capable of sweeping aside the rights of their fellow Americans. Indeed, they clearly understood their efforts to be imperfect and likely transitory. The existence of an amending formula within the text of the proposed constitution arguably speaks to this conviction. Earnest though many of them were that the draft constitution represented the best possible cure to what they perceived to be a fatal strain of weakness in the existing national government, they simultaneously acknowledged that alterations would almost certainly become either necessary or desirable in time. As such alterations may well have included the addition of a national bill of rights, the objections cited above would hardly seem to have been – or were intended to be – wholly definitive.