First Founding Father

by Harlow Giles Unger

  “Knaves assure—and fools believe—that printing paper money and making it tender is the way to be rich and happy; thus the national mind is kept in constant ferment and the public councils in continuous disturbance by the intrigues of wicked men, for fraudulent purposes, for speculating designs.”

  Lee also believed the new constitution should bar states from passing any legislation “that shall contravene or oppose the acts of Congress or interfere with the expressed rights of that body.”20 In addition, he urged Mason to ensure inclusion of a bill of rights, adding freedom of speech, freedom of the press, and the right to petition for redress of grievances to those rights already guaranteed by the Articles of Confederation, namely freedom of worship, the right to trial by jury, and public support of education.

  Because of the secrecy oath that Constitutional Convention delegates had taken, Mason did not—indeed, could not—reply, leaving Richard Henry Lee no option but to return to the Confederation Congress and await the finished document.

  When Lee reached New York in the summer of 1787 he found the Confederation Congress debating the first—and what would be the only—significant piece of legislation in its short history. The fulfillment of his ambitions to expand the nation westward, the Northwest Ordinance, as it was called, would create the first American territory—the Northwest Territory—beyond all state boundaries. The federal government acquired full sovereignty along with authority to create new states and sell land within the territory.* In effect, the Northwest Ordinance blocked existing states from extending their territories into the western wilderness, prevented them from warring with each other over conflicting claims, and, for the first time in America, provided the federal government with sovereignty over American territory and authority to raise money without state authorization.*

  To govern the territory Congress would appoint a governor, a secretary, and three judges. Ultimately Congress was to carve the territory into at least three but as many as five states, each requiring at least 60,000 free residents to become a state and each to be “on an equal footing with the original states in all respects whatsoever.”21

  Once again Richard Henry Lee seized a leadership role by pressing Congress into including a bill of rights that established freedom of worship, trial by jury, and public support of education as rights of all citizens in the new territory. He then convinced the Confederation Congress to pass the most remarkable act in its history—one that fulfilled a moral quest he had started as a twenty-year-old upstart burgess more than thirty years earlier: the prohibition of “involuntary servitude”—that is, slavery—in the Northwest Territory and the states formed within it.

  In effect the Northwest Ordinance established the Ohio River as the border between free states and slave states and prepared the geographic stage for the Civil War seventy years in the future. How he accomplished such a radical turnabout in the thinking of Congress is not evident in any of the records of Congress. One factor in his success may have been a change in the complexion of that body with the calling of the Constitutional Convention. Among those elected to both bodies, many of the die-hard southern slave owners and older northerners opted to abandon their seats in the relatively impotent Confederation Congress in favor of creating a new government in the Constitutional Convention. Their absence left northern Quakers—all fervent opponents of slavery—and younger, more advanced-thinking southerners with moral objections to slavery in a position “to put an end to that iniquitous and disgraceful traffic” in the future American states of the northwest.22

  Passage of the Northwest Ordinance sent wilderness property values north of the Ohio River soaring and promised enormous profits for the Lee and Washington families. “I have the honor,” Lee enthused to Washington, “to enclose to you an ordinance that we have just passed in Congress for establishing a temporary government beyond the Ohio, as a measure preparatory to the sale of the lands.” Lee told Washington the ordinance had secured their property rights and would protect them against “licentious people,” including squatters and overlapping claims by companies such as the Grand Ohio Company (the old Loyal Land Company).23

  On September 20, 1787, Richard Henry Lee received a copy of the new constitution and spent the next week studying it and writing comments. Lee soon learned that even Washington had mixed feelings about it.

  “Every state has some objection,” Washington admitted. “That which is most pleasing to one is obnoxious to another and vice versa.” But, he added, there were “seeds of discontent in every part of the Union ready to produce disorders” if the convention had not created “a more vigorous and energetic government.”24

  Like the Confederation Congress debate over the Articles of Confederation, the Constitutional Convention had stalemated for a while over the issue of whether congressional voting was to be by state or population size. Both sides had legitimate arguments, with those favoring one vote for each state contending that voting by population size would allow the two or three states with the largest population—Virginia, Massachusetts, and Pennsylvania—to dictate to the other ten states. Rather than a republic that protects the rights of all citizens, it would create a democracy, with absolute rule by the majority. But the large states argued with equal validity that a one-state, one-vote system would allow ten states with a combined population smaller than Virginia’s alone, to dictate to the vast majority of the people.

  A few delegates walked out and left for home in disgust at what they perceived as an insoluble problem. Two of the three New York delegates quit after New York governor George Clinton called the proceedings an illegal usurpation of power, unauthorized, he said, by the majority of Americans.

  Roger Sherman, the mayor of New Haven, Connecticut, calmed the remaining delegates, however, by proposing what he called a relatively fair compromise: “Let voting in the lower house be proportionate to each state’s population, and give each state parity… in the upper house. Otherwise a few large states will rule. The smaller states would never agree to a plan on any other principle than an equality of suffrage in this branch.”25

  Intent on holding the Union together, a majority of delegates agreed and went on to propose “a national government… consisting of a supreme Legislative, Executive and Judiciary,” with the national legislature consisting of two branches: a popularly elected lower house and an upper house elected by state legislatures. Each state in the lower house would cast votes proportionate to the total of its free population and three-fifths of its slave population, while each state in the upper house would have two votes, giving small states parity with large states. They gave the national legislature almost all the powers of the British Parliament—namely, to tax the people directly without consent of state legislatures, to raise troops for a federal force, to declare war, and to enact any laws it deemed “necessary and proper.” All national laws would “negative” all state laws that contravened the federal constitution.

  Much as Richard Henry Lee had proposed to George Mason, the delegates effectively barred states from printing or coining money, giving all such powers to the federal government. To keep the South in the Union, the North agreed to prevent Congress from interfering with the importation of slaves for twenty years.

  With Lee and other influential political leaders peppering convention members with demands, it decided on a one-man executive chosen by electors (the Electoral College) appointed by each of the state legislatures along with the votes of each state’s two US senators.

  Although the constitution as written allowed a president to serve an indefinite number of four-year terms—a condition Lee warned would open the way for the president to turn tyrant—other conditions of his service left him little more than a figurehead.* It named him commander-in-chief, for example, but gave Congress sole powers to declare war, raise troops, and send soldiers into action. Although it charged him with faithfully executing the laws, it gave him no evident enforcement powers to do so. Confident that Washington would win election as the nation
’s first president, the convention paid token tribute to his stature as a national icon by giving him a veto over legislation, but empowered the legislature to override his veto by a two-thirds majority. It allowed him to propose candidates for judgeships and key executive posts, but placed approval of such appointments in the Senate and gave him no specific authority over appointees once they assumed office—nor could he dismiss them.

  The national judiciary was equally impotent, consisting of “one supreme tribunal” that would try cases without juries, and giving the national legislature sole powers to create lower courts—again, empowered to hear cases without jurors. Richard Henry Lee howled with outrage but with little effect. A proposal that judges be appointed for life on condition of “good behavior” drew a second outcry by Lee, but Benjamin Franklin stifled any support for Lee’s objections by asserting that lifetime appointments of judges had worked exceedingly well in Scotland.

  “The nominations proceeded from the lawyers,” he explained, “who always selected the ablest member of their profession” to serve as a judge—“in order to get rid of him and share his practice among themselves.”26 After the roars of laughter subsided, delegates approved lifetime appointments for the Supreme Court. Twenty-nine of the forty-two remaining delegates at the convention were lawyers.

  Only thirty-nine of the forty-two delegates signed the constitution, and Pennsylvania delegate Gouverneur Morris’s disingenuous statement at the top of the signatures—“Done in Convention by the Unanimous Consent of the States present”—used the unanimity of one-state, one-vote balloting to mask all opposition to the document and the divisions between delegates in many states.

  Virginia governor Edmund Randolph, evidently influenced by Richard Henry Lee, “said it would be impossible… to put his name” on a document that gave Congress “dangerous power” over the states.27 George Mason agreed. Having failed to win inclusion of Richard Henry Lee’s proposed bill of rights in the constitution, Mason vowed, “I would sooner chop off my right hand than put it to the Constitution as it now stands.”28 Mason contended that while the opening words of the constitution mentioned “we, the people,” the secret proceedings gave the people no knowledge of its contents. He called for a second convention to determine the true will of the people and to rewrite the document accordingly.

  Elbridge Gerry of Massachusetts agreed, expressing as much outrage as the Virginians at the absence of Richard Henry Lee’s bill of rights. Elbridge railed at the powers given to Congress “to make what laws they may please… raise armies and money without limit.” In addition, he mirrored Richard Henry Lee’s objection to creating a supreme court that was “a tribunal without juries.”29

  Even Washington, who was first to sign the document, was less than pleased. “I wish the constitution… had been more perfect,” he admitted, “but I sincerely believe it is the best that could be obtained at this time. And, as a constitutional door is opened for amendments hereafter, the adoption of it… is in my opinion desirable.”30

  Franklin was slightly more enthusiastic. “I confess there are several parts of this constitution which I do not at present approve, but I am not sure I shall ever approve them… the older I get, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.

  Most men indeed as well as most sects in religion, think themselves in possession of all truth and that wherever others differ from them it is so far error. Steele a Protestant… tells the Pope that ‘the only difference between our churches in… the certainty of their doctrines is the Church of Rome is infallible and the Church of England is never wrong.’31

  Franklin went on to proclaim his support for the constitution “with all its faults… because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered.” He said he doubted whether another convention could write a better constitution. “Thus, I consent… to this constitution because I expect no better, and because I am not sure it is not the best.”32

  When the Constitution was read to Congress on September 20, however, Richard Henry Lee grew outraged. On September 27 he stood in Congress and proposed nineteen amendments before reiterating George Mason’s call for a second convention. Far from objecting, the members simply ignored Lee. Only thirty-three members had appeared; ten had been delegates to the Constitutional Convention, had voted for and signed the document, and now pressed Congress to approve it without dissent for quick transmission to the states for ratification.

  With support from the members of their own states, they did just that. To project an appearance of unanimity, a New Jersey delegate then moved to strike Richard Henry Lee’s proposals to amend the constitution from the official record in the Journals of Congress—and they did.

  “It was with us as with you,” Lee remonstrated to George Mason after Congress had adjourned. “This or nothing; and ‘this’ urged with a most extreme intemperance.

  The greatness of the powers given and the multitude of places created produces a coalition of monarchy men, military men, aristocrats, and drones, whose noise, impudence, and zeal exceeds all belief.… In this state of things, the patriot voice is raised in vain for such changes and securities as reason and experience prove to be necessary against the encroachments of power.… I availed myself of the right to amend.… This greatly alarmed the majority… for the plan is to push the business on with great dispatch with as little opposition as possible.33

  The first ten amendments Richard Henry Lee had proposed were a bill of rights to guarantee “rights of conscience in matters of religion… freedom of the press… trial by jury… safety of life in criminal prosecutions,” the last provision having been the first attempt to modify application of the death penalty in America. Lee also called for amendments to guarantee the right of Americans to assemble peacefully to petition the legislature; to ban unreasonable searches or seizures of their papers, houses, persons, or property; and to guarantee the right to be tried “by a jury of the vicinage” and end “the vexatious and oppressive calling of citizens from their own country… for trial in far distant courts.”

  He asked for a total separation of the overlapping powers of the executive (President) and the Senate, and an increase in the number of votes in the House from a bare majority to a two-thirds majority to pass legislation.

  “The plan now admitting of a bare majority to make laws,” he argued, “it may happen that five states may legislate for thirteen states, though eight of the thirteen are absent.”34 He all but howled his outrage at the prospects of one man—a single vote—determining the outcome of legislation for an entire nation of millions.

  He asserted “that standing armies in times of peace are dangerous to liberty” and moved that they not be permitted without approval by a two-thirds majority in both houses of Congress. And in a final amendment, that would not be added to the Constitution until 1917, he moved “to place the right of representation in the Senate on the same ground that it is placed in the House of Delegates [Representatives], thereby securing equality of representation in the legislature so necessary for good government.”35

  The Congress not only refused to record Lee’s resolutions in the Journals of Congress, it sent the constitution unchanged to the states for ratification with this message, pointedly dismissing Lee and all those seeking to amend the document:

  Congress having received the report of the Convention lately assembled in Philadelphia.… Resolved unanimously, That the said report… be transmitted to the several legislatures… to be submitted to a convention of delegates chosen in each state by the people thereof in conformity to the resolves of the Convention.36

  Lee protested that the resolution was far from unanimous and aimed only at rallying public opinion in favor of ratification. But, as he had lamented to George Mason, “It was this or nothing.”

  The harsh—indeed, rude—rebuff infuriated Lee. As old as Washington, he had been president of Congr
ess—by title, President of the United States in Congress Assembled—and, in fact, father of American independence. As the First Founding Father and a staunch Patriot, his age, rank, and family heritage demanded and entitled him to respect, and the cavalier dismissal he suffered pushed him firmly, deeply into the Antifederalist camp. Indeed, he now determined to join Patrick Henry in rallying Antifederalists across the nation to reject the new American Constitution and restore the cry for “Liberty or Death” to the lips of every patriotic American.

  * “Virtue,” at the time of the American Revolution, meant, among other things, selfless public service with no compensation and a commitment to uproot and eliminate corruption in government.

  * One Virginia pound equaled about 75 percent of a British pound, or about $100 in today’s currency.

  * Six states would emerge from the Northwest Territory: Ohio (1803), Indiana (1816), Illinois (1818), Michigan (1837), Wisconsin (1848), and part of Minnesota (1858).

  * The First Congress would replace the Northwest Ordinance of 1787 with an almost identical measure in 1789 transferring sovereignty from the Confederation Congress to the federal government created by the Constitution.

  * The Twenty-Second Amendment passed in 1947 now limits presidents to two elected terms in office—one term if he assumed the presidency while vice president and then held the presidency for more than two years.

  CHAPTER 11

  The Farmer and the Federalist

  WHEN RICHARD HENRY LEE RETURNED TO VIRGINIA HE SET OUT to rally America against the new constitution by detailing objections to the governors of Massachusetts, Delaware, Pennsylvania, North Carolina, and Virginia and to Antifederalist leaders such as Samuel Adams and Elbridge Gerry.

  “I incline to think,” he wrote to Gerry, “that unless alterations and provisions are interposed for the security of those essential rights of mankind without which liberty cannot exist, we shall soon find that the new plan of government will be far more inconvenient than anything sustained under the present government, and that to avoid Scylla we shall have fallen upon Charybdis.”1