by Chris DeRose
Patrick Henry then made a substitutionary motion, that prior to ratification, “a declaration of rights” together with proposed amendments be referred to the other states for their consideration. It was a desperate last-ditch attempt to delay the process in Virginia. But if it worked, it would almost certainly achieve the defeat of the Constitution. New York would vote to reject, the states would not agree on amendments, and the argument from union would have lost much of its strength when and if Virginia considered ratification again.
Henry’s motion was the first test of the strength of the parties in Convention. If Henry’s proposal passed, the Convention would end without ratification. The roll call must have been agonizing. At times the “ayes” were winning, at times the “nays” pulled ahead. When the results were in, there were eighty votes in favor and eighty-eight opposed to Henry’s motion.
The main question was then put back on the floor: Should the Constitution be ratified and amendments be recommended to the first Congress?
By the ever so slender margin of eighty-nine to seventy-nine, Virginia ratified the Constitution of the United States. Two committees were then formed: one to draft a form of ratification, and the second with members from both parties to recommend amendments.
Oblivious to New Hampshire’s ratification earlier in the week, the delegates in Richmond believed Virginia had been the ninth state to ratify, and thus had launched the new government under the Constitution. But though they had not truly witnessed what they thought, they had seen something no less historic. Virginia had not been the state whose ratification brought the new government into existence. But the Virginia delegates were certainly, more than those of any other state, the ones that ensured the Constitution—and perhaps even the Union—would live into the future. A nine-state union without either Virginia or New York could not have survived long, and if it did would have utterly failed in its objectives. What value would the power to regulate trade be when Virginia, New York, North Carolina, and Rhode Island were free to set their own rules, adopt their own currency, create their own regulations?
Madison wasted little time writing to Hamilton to tell him of the results. And on the same very day in Poughkeepsie, New York, Hamilton wrote Madison to tell him, “Our chance of success here is infinitely slender, and none at all if you go wrong.”3
On June 26, the Virginia Ratification Convention sent a copy of their ratification to the President of Congress and arranged to pay their own officers, president, secretary, chaplain, sergeant, and doorkeepers. They also appropriated funds to pay for any damage they might have done to the building.
The next and final day of the Convention produced a committee report that recommended a bill of rights with twenty provisions, plus twenty structural amendments to the Constitution.
As the delegates in Richmond parted, nobody could feel truly at peace. Ratification had been far too closely won for rejoicing. The victory at the expense of old friendships and alliances came with drawbacks even for the Federalists. And the Anti-Federalists believed that they had come agonizingly close to saving their country from monarchy or anarchy, and had failed.
Late that evening, Patrick Henry received a strange summons. He was asked to appear in the chamber of the Virginia Senate, at a meeting of the Anti-Federalist delegates, apparently led by William Cabell and David Meade Randolph. Their sinister purpose was to resist the new government by any means possible. But Henry would have nothing to do with any plans for extralegal resistance. He had “strenuously” worked to defeat the Constitution, done everything he could, as they all had. Now, “[t]he question had been fully discussed and settled,” he said, and “as true and faithful republicans, they had all better go home!”4 Henry was not surrendering, but he would confine his formidable opposition to legal avenues. His statesmanship prevailed, and the secret meeting scattered.
On July 2, a messenger appeared in Poughkeepsie, New York, with a letter for Hamilton. His stomach must have been tight with anticipation. If Virginia had ratified, New York might follow suit. If they had rejected, the Constitution was doomed in his home state.5
Hamilton read Madison’s letter to the delegates of the ratification convention in Poughkeepsie, New York. Already aware of New Hampshire’s ratification as the ninth state, New York would now have to choose between union with ten states or separation with Rhode Island and North Carolina only. It would take twenty-four more days of pushing by Hamilton, but on July 26, 1788, the leader of the Anti-Federalists and twelve of his party voted for the Constitution. New York approved the Constitution by a vote of thirty to twenty-seven—making Madison’s ten-vote victory in Virginia look like a landslide.6
As the Anti-Federalist monster lay dying in New York, it fired off one powerful closing salvo. The “New York Circular Letter” was produced by New York’s ratifying convention and agreed to unanimously (Hamilton and the other Federalists had been forced to agree as a concession to achieve ratification). The Circular called for all the states to join in a second constitutional convention to repair the defects of the first. It would take two-thirds of the states to trigger such a convention, but with New York and likely Virginia leading the charge, that might easily be possible. If the Anti-Federalists’ concerns about the Constitution were not addressed in the First Congress, a new convention was the likely result. And, Madison foresaw, it would be fatally easy for Anti-Federalists to use a second constitutional convention to bring down the Constitution and split the Union.
In 1857, a man in his ninetieth year and undoubtedly the last living witness to the Virginia Ratification Convention, recalled that remarkable event: “I was a stripling, and clerk in one of public offices, and could of course only attend the debates at intervals snatched from the duties of the office. But the impressions made by the powerful arguments of Madison and the overwhelming eloquence of Henry can never fade from my mind. I thought them almost supernatural. They seemed raised up by Providence, each in his way, to produce great results: the one, by his grave, dignified, and irresistible arguments to convince and enlighten mankind; the other, by his brilliant and enrapturing eloquence to lead whithersoever he would.”7
This little known epoch, when the Constitution itself hung in the balance, has faded from memory, obscured by the great events that preceded and followed it. Filling the void is the myth that America’s Founders were all-knowing, and therefore always agreeing—a band of demigods who always recognized and always chose the right.
Perhaps modern esteem for these figures serves as a reminder that, though statesmen may have to struggle mightily to advance their cause, and though they may lose on an issue or come out on the wrong side in the judgment of history, their principled determination is sufficient to win them a place in people’s hearts, long after they are gone.
Chapter Thirteen
THE TERRIBLE SESSION
“Something is surely meditated against the new Constitution, something more animated, forceful and violent, than a simple application for calling a convention.”
—EDMUND RANDOLPH
In July Madison returned to New York, where the Confederation Congress was busy planning the start date and location of the First Congress under the Constitution.1
It was determined that members of the Electoral College would be chosen in January and meet the following month to choose the president and vice president. The new Congress would meet in March of 1789, in New York. Though Madison had his heart set on a site near the Potomac River for the Capitol, tensions were high, and he yielded the point.
Madison knew that the Constitution was nowhere close to being out of the woods. Virginia Federalists had saved the Constitution in New York. But Virginia Anti-Federalists were working hard to influence the convention considering ratification in North Carolina. And in August, Anti-Federalists triumphed there. North Carolina refused to ratify the Constitution. The Jefferson letter that Patrick Henry had made use of to such dramatic effect in the Virginia Ratification Convention once again made an appearan
ce, and once again influenced the deliberations. In the end, North Carolina adopted a list of amendments that must first be passed by the new Congress before the state would ratify.
North Carolina, the fifth-largest state, was home to nearly four hundred thousand people. North Carolina’s absence from the Union separated South Carolina and Georgia from the rest of the ratifying states and left a significant part of the country outside the new government.
The New York Circular had a major impact on Virginia, Madison wrote Randolph, as “a signal of concord and hope to the enemies of the Constitution every where, and will I fear prove extremely dangerous.”2 Madison confessed to Washington that New York’s ratification of the Constitution along with the Circular was perhaps more dangerous than a rejection would have been. He wrote, “If an early general convention cannot be parried, it is seriously to be feared, that the system, which has resisted so many direct attacks, may at least be undermined by its enemies.” 3 Washington did not need convincing. He too was in terror of a second constitutional convention. Such an event, he believed, would “set every thing afloat again.”4 Meanwhile, Anti-Federalists in Pennsylvania were meeting to plot their next steps and organizing for the upcoming state and national elections.5
The recent opposition between Madison and Monroe in the Virginia Ratification Convention did not seem to have affected their relationship. Madison resumed their friendly correspondence where he had left off, and Monroe promptly replied. Monroe had bought lottery tickets for his family and friends, including Madison. His friends had all won, Monroe informed Madison, and the only losing tickets he’d bought were for himself and his own family.6
Madison now had to consider what role he wanted to play in the new government. James Gordon, his Orange County seatmate from the ratification convention now serving in the House of Delegates, was eager to know. “It will be a matter of satisfaction to your friends in this state,” he wrote, “to know whether you wish to be in the Senate or House of Representatives so soon as the districts are laid out.”7
On September 16, 1788, Madison succeeded in passing a congressional resolution declaring the navigation of the River Mississippi a “clear and essential right of the United States,” and forbidding any further negotiations. Gardoqui departed for Spain without the prize he had so eagerly sought and had almost won. Monroe was thrilled with the result and congratulated Madison on his success. The business of the Mississippi would be passed on to the new government.8
In fact, nearly everything would be passed on to the new government. On October 17, Madison wrote to Jefferson that Congress had been unable to reach a quorum, and that he did not expect nine states, or even seven states, to be in attendance ever again. In the clarity of the post-ratification period, Madison shared his thoughts on amendments with his friend, still in France: “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.”9
The Virginia House of Delegates attained a quorum on October 21, 1788.10 They had previously met for a week in June after the Convention, but that special session was called only for the House to act on a decision by the Court of Appeals. During the regular October session, the Anti-Federalists would make their first legislative moves against the new Constitution and its supporters.
Patrick Henry stood astride the House like a colossus. He was surrounded by a loyal pack of followers, and those who could not be led by other means were bullied, threatened, and intimidated. Members who still stood in his way were trampled underfoot. Defeat was as unfamiliar to Henry as it was unwelcome, and the victory of the Federalist party at the ratification convention had been a severe blow. But here on the floor of the House of Delegates, his natural habitat, Patrick Henry was without equal.
The evidence for Henry’s standing and abilities is abundant. While praise from friends must be weighed skeptically, praise from adversaries is almost always reliable. In the House of Delegates, James Gordon testified, Henry was “greatly an overmatch for any Federalist I know in the same.” The Federalists were “generally temperate and inactive,” Randolph noted, while their opponents “furious and active.” Washington observed that “the edicts of Mr. Henry are enregistered with less opposition by the majority of that body than those of the grand monarch are in the parliaments of France. He has only to say let this be law—and it is law.” Henry Lee believed that “Mr. Henry is absolute and every measure succeeds.”
In the House, Henry would not face the worthy opponents he had faced in Virginia’s Ratification Convention. Most Federalist leaders were not members of the legislature. Those who were, such as Marshall and Nicholas, were absent on business at the beginning of the October 1788 session. Francis Corbin was the only Federalist member of the House of Delegates present who had spoken in the Convention.
Henry wasted no time fulfilling his promise to oppose the Constitution by every legal avenue. If he had disappointed his followers in the Senate chamber meeting, he would now exceed their wildest hopes. For the friends of Federalism, this would be a legislative session of terror.
When Henry arrived in Richmond for the opening of the session, Randolph observed that “he appears to be involved in a gloomy mystery.” Randolph feared some attack on the Constitution “more animated, forceful and violent, than a simple application for calling a convention.”11 The first shot across the Federalists’ bow came as the New York Circular was presented to the House for its consideration. The task of writing a response was sent to a committee.
Edward Carrington, for years a friend and supporter of Madison, had been a member of Congress when he was elected to House of Delegates. He had resigned from Congress shortly before taking his seat, as one could not simultaneously hold both offices. This procedure was not without precedent; no one had made an issue of it in the past. But after arriving in Richmond, Carrington began to hear rumors that his right to serve in the House of Delegates was in doubt. Before a series of contentious votes should divide and inflame the members, Carrington thought it best to force the immediate consideration of the issue.
On October 23, Benjamin Harrison reported from the Committee on Privileges and Elections. Carrington had become a congressman in November of 1787. In April of 1788 he had been elected in Powhatan County to the House of Delegates. On October 20 he had resigned his seat in Congress. Since he did not hold both offices simultaneously, the committee determined he was eligible to serve.12 Harrison had been a determined Anti-Federalist, but he never contemplated abusing his power to punish those who were at odds with him.
Normally, such allegations would never have been taken seriously. If they had been investigated at all, the initial committee report would have ended the matter. But in the toxic atmosphere of Patrick Henry’s House of Delegates, a motion was made to recommit the issue to committee. The following day, the committee issued a more extensive report, citing the various applicable laws in support of Carrington’s right to serve. They resolved that “Edward Carrington, Esq., was capable of being elected a Delegate to represent the said county of Powhatan in this present General Assembly.”
But this straightforward issue was politicized on the House floor. Patrick Henry gave a speech denouncing the evils of the Constitution—not especially germane to the validity of Carrington’s election. A motion was made to strike the word “capable” and replace it with “incapable.” It passed by a wide majority, and the House of Delegates issued a writ for a new election from Powhatan.13
The Carrington incident demonstrates how Henry’s beliefs about the Constitution and his enormous power in the legislature manifested themselves in intensely petty and personal ways. Carrington was reelected in Powhatan only days later.<
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Monroe, delayed by some unfinished business in his law practice, took his seat on October 26. Though Monroe had served with Carrington when they were young delegates and their families had planned to live together in Richmond, the fight over the Constitution had hardened hearts. Monroe evinced no sympathy for his friend, the victim of unnecessary, obviously politically motivated harassment: “The merits of the case I know not and only judge from external circumstances,” Monroe said.14
On October 30, a resolution was offered “for quieting the minds of the good citizens of this commonwealth, and securing their dearest rights and liberties, and preventing those disorders which must arise under a government not founded in the confidence of the people, application be made to the Congress of the United States, so soon as they shall assemble under the said Constitution, to call a convention for proposing amendments to the same.”
The Federalists offered a substitute resolution, calling for the Constitution to be examined by the new Congress, with proper amendments to be recommended by them. The Federalists were defeated by a vote of eighty-five to thirty-nine. Monroe was appointed to the committee to respond to the New York Circular, along with French Strother and William Cabell.
Strother had represented Culpepper County in the legislature for many years. He had served in the Virginia Conventions of 1776 and 1788, where he voted against ratification. Cabell, who represented Amherst, was born in 1730, and had served in the Burgesses before independence. He too had served in the Conventions of 1776 and 1788, and had also voted against ratification. Both Strother and Cabell were considered possible candidates for the First Congress, but would later support their younger colleague.