I have the greatest veneration for . . . those worthy characters who composed a part of the late federal convention . . . but, sir, give me leave to demand what right they had to say, We, the People? My political curiosity . . . leads me to ask who authorized them to speak the language of We, the People . . . The people gave them no power to use their name. That they exceeded their power is perfectly clear . . . The federal convention ought to have amended the old system—for this purpose they were solely delegated. The object of their mission extended to no other consideration.31
Henry questioned the motives of delegates at the Constitutional Convention: “I would demand the cause of their conduct . . . even from that illustrious man who saved us by his valor.” His unmistakable reference to Washington drew gasps of outrage from Federalists.
I would demand . . . a faithful historical detail of the . . . reasons that actuated its members in proposing an entire alteration of government—and to demonstrate the dangers that awaited us. . . . Disorders have arisen in other parts of America, but here, Sir, no dangers, no insurrection or tumult has happened—everything has been calm and tranquil. . . . What are the causes of this proposal to change our government?32
Henry’s ally, Governor Edmund Randolph, then took the floor for what Henry expected would be the coup de grace for ratification. Henry and Mason gave Randolph a warm nod of approval, but the governor fixed his eyes on the president, reminding him that, as a member of the Constitutional Convention,I refused to sign, and if the same were to return, again would I refuse . . . but I never will assent to any scheme that will operate a dissolution of the Union or any measure which may lead to it. . . . The Union is the anchor of our political salvation, and I will assent to the lopping of this limb [he raised his right arm] before I assent to the dissolution of the Union.
George Mason’s face turned red with anger at Randolph’s evident mockery of Mason’s dramatic refusal to sign the Constitution in Philadelphia.
Randolph then looked at Henry: “I shall now follow the honorable gentleman in his enquiry,” he continued in mocking tones. “The honorable gentleman . . . inquires why we assumed the language of “We, the People.” I ask why not? The government is for the people. . . . Is it unfair? Is it unjust? I take this to be one of the least and most trivial objections that will be made to the Constitution. ...” As Henry’s eyes bulged red with rage, Randolph shocked the convention by abruptly switching political allegiance: “In the whole of this business, I have acted in the strictest obedience to my conscience, in discharging what I conceive to be my duty to my country. I refused my signature . . . I would still refuse; but as I think that those eight states which have adopted the Constitution will not recede, I am a friend to the Union.”33
Randolph’s speech left the entire hall in stunned silence—Federalists as well as Antifederalists. It left Henry and Mason irate—and Henry deeply hurt. No one had ever mocked him before in private, let alone in public. To be mocked by a member of the Tidewater aristocracy was doubly painful. For years, Henry had believed that his service in the Assembly and as governor, along with his marriage to Dolly and his ties to her family, had bridged the social divide between the old Virginia aristocracy and backcountry folk like himself. With Randolph’s sudden espousal of the Constitution, Henry now believed that Tidewater aristocrats intended to use the new national government to recapture powers they had held under the British monarchy in the House of Burgesses. In recalling Randolph’s betrayal a few years later, Jefferson would characterize the governor as “the poorest chameleon I ever saw, having no color of his own and reflecting that nearest him.”34 As Henry seethed with anger, however, the lion in him bared his oratorical claws, ready to spring at his prey.
Chapter 14
A Bane of Sedition
Randolph’s attack proved the beginning of a concerted Federalist plan to discredit Henry by mocking him with excessive praise: “I feel every power of my mind moved by the language of the honorable gentleman yesterday,” declared General Henry (“Lighthorse Harry”) Lee, a hero at the battle of Guilford Courthouse and a close friend and confidant of Washington.
The éclat and brilliancy which have distinguished that gentleman, the honors with which he has often been dignified, and the brilliant talents which he has so often displayed have attracted my respect and attention. On so important an occasion . . . I expected a new display of his powers of oratory, but instead of proceeding to investigate the merits of the new plan of government, the worthy character informed us of the horrors which . . . made him tremblingly fearful of the fate of the commonwealth.1
Accusing Henry of failing to examine the Constitution objectively, Lee sneered, “The gentleman sat down as he began, leaving us to ruminate on the horrors which he opened with . . . but, sir, this system is to be examined on its own merit. . . . Mr. Chairman, was it proper to appeal to the fear of this house? . . . I trust he is come here to judge and not to alarm.”
A night’s sleep left Henry ready to repel the Federalists, however, and he sprang to his feet the next day to punish Randolph and Lee. He glanced up at the coagulum of adoring buckskins in the gallery and, like the young backcountry lawyer in nearby Saint John’s Church two decades earlier, he felt the same rush of “unearthly fire.” As then, “the tendons of his neck stood out white and rigid like whipcords.”2 As then, he began softly, this time with a snide grin: “I am much obliged to the very worthy gentleman for his encomium,” he mocked Lee. “I wish I was possessed of talents, or possessed of any thing that might enable me to elucidate on this great subject. . . .” He paused to send an understanding wink to buckskins in the gallery. “I rose yesterday to ask a question,” he explained. “I thought the meaning . . . was obvious. . . .” His voice rose:Here is a revolution as radical as that which separated us from Great Britain . . . if in this transition, our rights and privileges are endangered, and the sovereignty of the states be relinquished. And cannot we plainly see that this is actually the case? 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.
‘Is this tame relinquishment of rights worthy of freeman?’ he cried out.
‘No!’ came the cry from gallery buckskins. Presiding officer George Wythe gaveled the hall to order.
‘Is the relinquishment of the trial by jury necessary and the liberty of the press necessary for your liberty?’
‘No!’ And again, the rap of Wythe’s gavel.
‘Will the abandonment of your most sacred rights tend to the security of your liberty?’
‘No!’
‘The new form of government . . . will oppress and ruin the people!’
The gallery erupted in angry noes until Wythe’s gavel restored order.
‘It is said eight states have adopted this plan. I declare that if twelve and one half had adopted it, I would with manly firmness . . . reject it!’
The gallery cheered.
‘But I am fearful I have lived long enough to become an old-fashioned fellow. . . .’ His voice softened, and he smiled at the gallery. ‘If so, I am contented to be so. . . . Twenty-three years ago I was supposed a traitor to my country.’
‘No-o-o-o-o!’ the gallery protested.
‘I was then said to be a bane of sedition, because I supported the rights of my country. . . . I say now our privileges and rights are in danger. . . .’ He paused, then appealed to the gallery buckskins again. ‘Is not the ancient trial by jury preserved in the Virginia Bill of Rights?’
‘Yes!’ they answered.
‘And is that the case in the new plan?’
‘No!’ the gallery responded angrily.
‘No, sir!’ he echoed their response.
Why do we love this trial by jury? Because it prevents the hand of oppression from cutting yours off. They may call anything rebellion and deprive you of a fair trial by an impartial jury of your neighbors. . . . Shall Americans give up that wh
ich nothing could induce the English people to relinquish? The idea is abhorrent to my mind . . . It gives me comfort that as long as I have existence my neighbors will protect me. . . .3 Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately nothing will preserve it but downright force; whenever you give up that force you are inevitably ruined. . . . Something must be done to preserve your liberty and mine.4
Henry insisted that the existing Confederation of American States deserved “the highest encomium: It carried us through a long and dangerous war: It rendered us victorious in that bloody conflict with a powerful nation: It has secured us territory greater than any European monarch possesses.
“Consider what you are about to do before you part with this Government,” he thundered.5
In arguing for perpetuation of the Confederation, Henry cited Switzerland as proof that we might be in amicable alliance with those states without adopting this Constitution. Switzerland is a confederacy . . . of dissimilar governments . . . that has stood upwards of four hundred years. . . . They have braved all the power of France and Germany . . . In this vicinity of powerful and ambitious monarchs, they have retained their independence, republican simplicity, and valor.6
With Federalists shifting uncomfortably in their seats, Henry went on and on, hour after hour, haranguing the delegates and spectators, turning from one delegate to another, staring one down, then another, then pointing to the heavens and opening his arms wide to appeal to the galleries—to the heavens—to God himself, as he had at Richmond’s St. John’s Church twenty-three years earlier.
“There was a perfect stillness throughout the House and in the galleries,” Henry’s cousin Judge Edmund Winston recalled. “One spectator in the gallery was so stirred by Henry’s vivid description of federal enslavement that he involuntarily felt his wrists to assure himself that the fetters were not already pressing his flesh.”7
“The Constitution is said to have beautiful features,” Henry turned to Federalist chairman Wythe.
But when I come to examine these features, Sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy. And does not this raise indignation in the breast of every American? Your President may easily become King. . . . Where are your checks in this government? . . . There will be no checks, no real balances in this government. It is on a supposition that your American governors shall be honest that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men.
Henry stopped suddenly.
A murmur spread through the hall as Henry’s eyes focused on the crowd at the door, then bent over to whisper to the delegate seated beside him, “I see my son in the hall.”
Henry had left his oldest son, William, at home as guardian of his wife and family and the plantation. Fearing some emergency had brought the young man to Richmond, he asked his colleague to find out. While Henry remained standing and pretended to search his notes so as not to lose the floor, his friend marched up the aisle, found William Henry, then trotted back to Henry’s side—beaming: Dolly had given birth to another son, he whispered. Alexander Henry was her sixth—and Henry’s twelfth. Henry broke into a grin, but, in the charged atmosphere of the convention hall, he decided against an announcement and simply contorted his face. The grinning Belgian hare turned back into an avenging American lion:Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty. . . . If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands . . . the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. . . . and what have you to oppose this force? What will then become of you and your rights? My great objection to this government is that it does not leave us the means of defending our rights or of waging war against tyrants.
Edmund Pendleton had claimed that the Constitution provided ample means to prevent tyranny and abuses in government: “We will assemble in convention, recall our delegated powers, and punish those servants who have perverted powers . . . to their own emolument.”8
Henry repeated Pendleton’s claim, then stared at the old man for several moments, his head cocked to one side in evident disbelief.
“O, Sir,” he replied. “We should have fine times indeed, if, to punish tyrants, it were only sufficient to assemble the people.”
After the roars of laughter subsided, he asked the embarrassed Pendleton,Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all? . . . If Congress in the execution of their unbounded powers shall have done wrong, how will you come at them to punish them, if they are at the distance of five hundred miles. At such a great distance they will evade responsibility altogether. . . . A standing army we shall have . . . to execute the execrable demands of tyranny, and how are you to punish them?9
Henry scoffed at Washington’s claim that anarchy would ensue without the new Constitution. “I am not well versed in history,” Henry argued, “but I will submit to your recollection whether liberty has been destroyed most often by the licentiousness of the people or by the tyranny of rulers? I imagine, sir, you will find the balance on the side of tyranny.” Henry predicted that the Constitution would create “a great and mighty president with . . . the powers of a king” and give Congress the power of “unlimited ... direct taxation” and powers “to counteract and suspend” state laws. Like the British government’s Intolerable Acts, the proposed American government would have powers to send troops into any state to enforce federal laws. Those powers in the hands of Parliament, he reminded the convention, had provoked the Revolutionary War.
But, he added, the most insidious power given to Congress was the right under Article 1, Section 8, “to make all laws necessary for carrying their powers into execution.”
“Will you be safe,” he all but shouted, “when you trust men at Philadelphia with power to make any law that will enable them to carry their acts into execution? By this, they have a right to pass any law that may facilitate the execution of their acts.” He warned that the “necessary and proper” clause gave Congress the right to hang men “who shall act contrary to their commands” and order the army “to aid the execution of their laws?”
“One of our first complaints under the former government,” he reminded the convention,was the quartering of troops upon us. This was the one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us. We are told . . . to trust ourselves. That our own representatives, Congress, will not exercise their powers oppressively. That we will not enslave ourselves. . . . Who have enslaved France, Spain, Germany, Turkey, and other countries which groan under tyranny? They have been enslaved by the hands of their own people! . . . Is there any act, however atrocious, which Congress cannot do by virtue of this clause? Congress will become the supreme power.
A wonderful and unheard of experiment it will be, to give unlimited powers unnecessarily. . . . This is dishonorable and disgraceful. It will be as oppressive in practice as it is absurd in theory.10
Henry then demanded amendments to the Constitution securing to the states and the people every right which was not conceded to the general government.
I trust that gentlemen . . . will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right secured before they agree to that paper. . . . You have a bill of rights to defend you against the state government . . . and yet you have none against Congress . . . If you
intend to reserve your unalienable rights, you must have the most express stipulation. . . . It was expressly declared in our [Articles of] Confederation that every right was retained by the states . . . which was not given up to the government of the United States. But there is no such thing here. You therefore by a natural and unavoidable implication give up your rights to the general government. ...11
Henry paused, then startled the hall with a roar:
“Why not give us our rights!
“In express terms!
“In language that could not admit of evasions or subterfuges?
“We are giving power,” he boomed.
“They are getting power!”
Henry went on to condemn Federalists for rigging earlier convention elections. He insisted that the majority of Americans opposed the Constitution, but were “egregiously misled.” Pennsylvania, he charged, has “perhaps” been tricked into it.
If the other States who have adopted it have not been tricked, still they were too much hurried into its adoption . . . a clear majority of the people are averse to it. . . . If you will . . . stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you. Not otherwise. . . . I speak as one poor individual—but when I speak, I speak the language of thousands!12
With that, the gallery erupted into whoops and cheers. Antifederalist delegates rose to their feet to join the mass acclaim. “And,” Henry tried shouting over the crowd: “And, Sir . . . And, Sir.” As the audience grew quiet, Henry smiled, “But Sir, I mean not to breathe the spirit nor utter the language of secession.”
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