Lion of Liberty

by Harlow Giles Unger

  I am consoled for the regret I feel on account of my own insufficiency by a conviction that within the United States a large number of citizens may be found, whose talents and exemplary virtues deserve public confidence, much more than anything I can boast of.

  That wisdom and virtue may mark the choice about to be made of a president is the earnest desire of your fellow citizen and well wisher,

  Patrick Henry23

  In the ensuing election, Henry finished fourth in the electoral balloting, with Adams elected president and Thomas Jefferson vice president. South Carolina Federalist Thomas Pinckney, a Revolutionary War hero and successful diplomat in the Washington administration, finished third.

  In 1798, increased threats of war with France and other European powers provoked a “spy scare” and consequent passage by President John Adams’s Federalist majority in Congress of the Alien and Sedition Acts, effectively stripping Americans of their First Amendment rights to free speech and freedom of the press. The Alien Enemies Act gave the president powers “to arrest, imprison, or banish alien subjects of an enemy power” in time of war, while the Sedition Act made it illegal for citizens or aliens to incite “insurrection, riot, unlawful assembly, or combination” or prevent a federal officer from enforcing federal laws. It also made it illegal to publish “any false, scandalous and malicious writing” about the U.S. government, Congress, or the president. The acts outraged Antifederalists, who called them unconstitutional. Vice president Jefferson went a step farther, setting the stage for a confrontation with the federal government over state sovereignty. Jefferson declared the Constitution only “a compact” among sovereign states in which the states retained the authority to restrain federal government actions that exceeded its constitutional mandate. Jefferson rode to the new state of Kentucky and convinced the Antifederalist majority of former Virginians in the legislature to approve a resolution that any federal government exercise of powers not specifically delegated to it by the Constitution was, by definition, unconstitutional and, therefore, subject to nullification by state government.

  Meanwhile, James Madison, a staunch Jeffersonian republican, won a similar resolution in the Virginia legislature, which added a clause asserting a state’s right “to interpose” its authority to prevent “the exercise of . . . powers” by the federal government not granted by the Constitution.24 Federalist legislatures in other states, however, declared the Virginia and Kentucky Resolutions “mad and rebellious” and rejected them with declarations that U.S. courts were the sole judges of constitutionality.

  Early in 1799, Virginia’s legislature issued orders for the construction of an armory in Richmond and for its militia to take up arms to resist any federal government attempts to enforce the Alien and Sedition Laws.25 As Richmond lawmakers talked of secession, George Washington stepped out of retirement to recruit Federalists to run for Congress and the Richmond Assembly. In addition to the staunch Federalist John Marshall, he wrote to Patrick Henry, reminding him of his recent pledge to exert “every power of mind or body which I possess . . . in support of the government.” 26 Recognizing Henry’s reluctance to distance himself from his home and family, he pleaded with him to stand for the state legislature, asserting his “fears that the tranquility of the Union . . . is hastening to an awful crisis.” He warned Henry of the “endeavors of a certain party . . . to set the people at variance with their government. . . . Your weight of character and influence would be a bulwark against such dangerous sentiments . . . I conceive it to be of immense importance at this crisis that you should be there.”27

  Frail as he was, Henry agreed. Although a bitter opponent of the Constitution, it was the law of the land, and he was, above all, a law-abiding citizen. He had preferred a loose confederation of states to federation under a national government, but he preferred the latter to disunion and the inevitable European-style interstate wars that would follow. In March 1799, he rode the twenty difficult miles to the Charlotte County courthouse, where a crowd gathered to hear the legendary patriot—a figure from the past, stepping out of the pages of history to inspire the nation as he had more than two decades earlier. The entire faculty and student body of Hampden-Sydney College journeyed nearly twenty miles from Prince Edward County to witness the event.

  “He was very infirm,” one of the Hampden-Sydney students recalled.

  Immense multitudes . . . were pouring in from all the surrounding country to hear him. At length he arose with difficulty and stood somewhat bowed with age and weakness. His face was almost colorless. His countenance was careworn, and when he commenced his exordium, his voice was slightly cracked and tremulous. But in a few moments a wonderful transformation of the whole man occurred as he warmed with his theme. He stood erect; his eye beamed with a light that was almost supernatural; his features glowed with the hue and fire of youth; and his voice rang clear and melodious, with the intonations of some grand musical instruments whose notes filled the area and fell distinctly and delightfully upon the ears of the most distant of thousands gathered before him. He told the people that . . .

  the late proceedings of the Virginia Assembly have filled me with apprehension and alarm . . . they have drawn me from that happy retirement which it hath pleased a bountiful Providence to bestow and in which I had hoped to pass, in quiet, the remainder of my days . . . The state has quitted the sphere in which she has been placed by the Constitution! In daring to pronounce upon the validity of federal laws, Virginia has gone out of her jurisdiction in a manner not warranted by any authority and in the highest degree alarming to every considerate man.

  After a pause, the man who himself had flirted with secession a few years earlier, expressed what had now become his worse fear: “Such opposition to the acts of the general government must beget their enforcement by military power and probably produce civil war; civil war, foreign alliances; and foreign alliances must necessarily end in subjugation to the powers called in.” Henry lashed out at the hypocrisy of Jefferson and Madison for having supported ratification of a Constitution that they then proceeded to undermine with the Kentucky and Virginia Resolutions. “Whatever the merits or demerits . . . of the Alien and Sedition Acts,” he stormed, “they were passed by Congress . . . and it belongs to the people who hold the reins over the head of Congress—and to them alone—to say whether they were acceptable or otherwise—not the Virginia state government. ...”

  If I am asked what is to be done when a people feel themselves intolerably oppressed, my answer is . . . overturn the government. But do not, I beseech you, carry matters to this length without provocation. Wait at least until some infringement is made upon your rights which cannot be otherwise redressed; for if ever you recur to another change, you may bid adieu forever to representative government. . . . We should use all peaceable remedies first before we resort to the last argument of the oppressed—revolution—and avoid as long as we can the unspeakable horrors of civil war. . . . Let us not split into factions which must destroy the union upon which our existence hangs. Let us preserve our strength for the French, the English, the Germans or whoever else shall dare invade our territory and not exhaust it in civil commotions and intestine wars.28

  Henry’s speech was his last. The trip to Charlotte left him exhausted. He managed to make it back to Charlotte to vote in the election the following month, but returned home so weak that his servants had to carry him to his bed. He would never again appear in public.

  In the days that followed, Henry learned that he had won election by a sizable majority. To add to his triumph, Secretary of State Timothy Pickering wrote to tell him that the Senate had confirmed his selection by the president as one of three ministers plenipotentiary to negotiate growing differences with France. The letter—like the election results—found him “so sick as scarcely able to write.” He replied to Washington on April 16. “I have been confined for several weeks by a severe indisposition . . . My advanced age and increasing debility compel me to abandon every idea of serving my count
ry.”29

  Early in June, he barely managed to scribble an appeal to his oldest daughter Martha: “I am very unwell, and Dr. Cabell is with me.” She immediately knew the meaning of his words and roused as many other family members as she could before rushing to Red Hill, where Henry was dying of what the doctor described as “intussusception,” involving the slippage of the small intestine into the opening of the large intestine and a consequent blockage of the digestive tract.

  “All other remedies having failed, Dr. Cabell proceeded to administer to him a dose of liquid mercury . . . on June 6,” according to Henry’s grandson Patrick Henry Fontaine. By then, Henry had indeed tried every available remedy except mercury, which had been used to treat syphilis and other diseases for more than two centuries with mixed successes. It now fell it in the category of that era’s kill-or-cure “miracle” drugs that doctors prescribed after exhausting all other possible remedies. “Taking the vial in his hand . . . the dying man said, ‘I suppose, doctor, this is your last resort.’ The doctor replied, ‘I am sorry to say, Governor, that it is.’” Henry drew his nightcap over his eyes and began to pray “in clear words, a simple child-like prayer for his family, for his country, and for his own soul then in the presence of death. Afterward, in perfect calmness, he swallowed the medicine. . . . He continued to breathe very softly for some moments, after which, they who were looking upon him, saw that his life had departed.”30

  Of his many eulogies, the most eloquent said simply, “The sun has set in all his glory.”31

  Afterword

  Patrick Henry had just turned sixty-three when he died. His family buried him without ceremony at Red Hill in a simple grave. His children would later mark the site with a plain marble slab bearing his name, the dates of his birth and death, and the words, “His fame is his best epitaph.” In 1796, his wife, Dorothea, had given birth to her tenth child—his seventeenth—a daughter Jane Robertson, who died after only four days. One more child—his eighteenth—would be born eighteen months before Henry’s death.

  George Washington died at his home in Mount Vernon, in December, six months after Henry, thus ending the century of the American Revolution with the deaths of the two beloved patriots who had fathered that revolution. Each had sought different outcomes, however. Washington had envisioned freedom from Britain as a return to life as it was before the Seven Years’ War in 1763, but under an American rather than British national government. Henry envisioned independence leaving each colony a self-governing sovereign state within a loose confederation of states, united only for common defense against foreign attack and mutual commercial advantages. Washington believed Henry’s confederation would produce anarchy, while Henry predicted that the strong central government created by the constitution that Washington endorsed would inevitably restore the tyranny Americans had endured under the British imperial government.

  Henry’s prophesies quickly proved all too true.

  As noted earlier, Congress imposed a national whiskey tax without the consent of state legislatures—much as the British had done with the stamp tax—and President Washington sent troops to crush tax protests in western Pennsylvania, much as the British had in Boston. In 1798, President John Adams and Congress “colluded” to pass the Alien and Sedition Acts, suppressing free speech, freedom of the press, and freedom of assembly—much as the British king and Parliament had done in 1774.

  In the last year of Henry’s life, his political foes Jefferson and Madison—once champions of the Constitution—conceded Henry’s prescience and, with the Constitution in place as the law of the land, they scurried to mitigate its effects. Jefferson drafted resolutions adopted by the Kentucky state legislature giving any state the right “to judge for itself” whether the national government has acted unconstitutionally and to determine “the mode and measure of redress.” Virginia’s state legislature adopted an even stronger set of resolutions drafted by Madison that gave states “the right and . . . duty to interpose for arresting the evil” of federal government acts that exceed its rights under the Constitution.

  Other states, however, rejected the resolutions, and since then, almost every president, Congress, and Supreme Court has fulfilled Henry’s prophesies by usurping powers not delegated by the Constitution. Presidents have routinely failed to enforce many laws that do exist and exercised powers that do not; Congress has just as routinely enacted laws in areas the Constitution originally reserved to the states; and the U.S. Supreme Court has routinely issued decisions tantamount to legislation and exercised powers the Constitution reserves to the executive. Whether for better, worse, good, or evil—whether to protect the public or restrict it—the all-pervasive reach of the federal government and its laws is not what even the most ardent Federalists among the Founding Fathers had in mind when they wrote and signed the Constitution. Laws, by definition, are either proscriptive or enabling, but in both cases, they all necessarily restrict individual liberty and, to one degree or another, they fulfill Patrick Henry’s definition and prophecy of tyranny under big government. While Washington subscribed to John Locke’s contention that “Wherever laws end, tyranny begins,” Henry held just as strongly to Plutarch’s argument (and Jonathan Swift’s) that laws were like “spiders’ webs [which] could catch . . . the weak and poor, but easily be broken by the mighty and rich.”1

  The nation has yet to resolve the differences between the political visions of Washington and Henry. At various times in the early nineteenth-century, ten states—Pennsylvania, Kentucky, South Carolina, Virginia, Wisconsin, and the five New England States—attempted individually or collectively to promulgate the concept of “nullification”—always without success, despite the Tenth Amendment. As General Henry “Lighthorse Harry” Lee, then Virginia governor, predicted they would, the southern states seceded from the Union in 1860 and 1861 at an ultimate cost of one million dead or wounded. Even the Civil War, however, failed to resolve the conflict: Almost a century later, President Dwight D. Eisenhower fulfilled a Henry prophesy by sending troops into Little Rock, Arkansas, in 1957, to enforce federal law. And, in June 1963, Alabama Governor George Wallace invoked the Jefferson-Madison doctrine of nullification and stood “in the schoolhouse door” in Tuscaloosa to try to prevent desegregation of the all-white University of Alabama. Citing the Tenth Amendment, which relegates to the states all powers not assigned to the federal government by the Constitution, Wallace argued that the federal government had usurped state authority over public-school education—a subject not mentioned in the Constitution. Federal officers physically removed the governor to enforce what was then a relatively new federal law passed in response to a Supreme Court decision.

  Although individual states persist in trying to nullify federal laws and restrict federal activities to constitutionally designated limits, federal courts serve as inevitable arbiters, and they seldom rule against the federal government, whose officials appoint them to the bench and of which they then become an integral part.

  Henry’s cry for “liberty or death” continues to provoke profound emotions in the hearts of most patriotic Americans, but they—like their forefathers at the Constitutional Convention—seem unable to reach a consensus on the meaning of liberty. Their passive acquiescence to ever-increasing government intrusions into their lives, however, indicates that few would define it as Patrick Henry did when he cried out to his countrymen, “We must Fight!”

  Appendix A: The Speech

  On March 23, 1775, Patrick Henry stood before the Second Revolutionary Convention of Virginia in Richmond and proposed three resolutions to organize and arm a militia. After some members of the Assembly expressed their opposition, Henry presented his arguments in the most inspiring oratory in American history until Abraham Lincoln’s Gettysburg Address. Henry’s speech was a declaration of war against the British government that set her American colonies on the road to independence. The following is what remains of Henry’s original text. Ellipses represent missing or obscured elements in the original
text. Some of the original punctuation (but no spellings) have been changed for greater clarity and consistency.1

  Resolved, That a well-regulated militia, composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us for the purpose of our defence any standing army of mercenary forces, always subversive of the quiet and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.

  Resolved, That the establishment of such a militia is at this time particularly necessary, by the state of our laws for the protection and defence of the country, some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity, renders it too insecure, in this time of danger and distress, to rely that opportunity will be given of renewing them in general assembly, or making any provision to secure our inestimable rights and liberties from those further violations with which they are threatened.

  Resolved, therefore, That this colony be immediately put into a posture of defence; and that . . . be a committee to prepare a plan for embodying, arming, and disciplining such a number of men as may be sufficient for that purpose.