First Founding Father

by Harlow Giles Unger

Except in the government of the army and navy, no person shall be tried for any offense whereby he may incur loss of life or an infamous punishment until he be first indicted by a grand jury.

  Every person shall have a right to produce all proofs that may be favorable to him and to meet witnesses against him face to face.

  Every person shall be entitled to obtain right and justice freely and without delay.

  All persons shall have a right to be secure from all unreasonable searches and seizures of their persons, houses, papers, or possessions.

  No person shall be exiled or molested in his person or effects otherwise than by the judgment of his peers or according to the law of the land.

  Lee argued that the “silence” of the Constitution “as to… the right to have council, to have witnesses face to face, to be secure against unreasonable search warrants… implies they are relinquished or deemed of no importance.

  The essential parts of a free and good government are a full and equal representation of the people in the legislature and the jury trial in the vicinage in the administration of justice. A full and equal representation is that which possesses the same interests, feelings, opinions, and views as the people themselves would were they all assembled. A fair representation, therefore, should be so regulated that every order of men in the community, according to the common course of elections, can have a share in it—in order to allow professional men, merchants, traders, farmers, mechanics, &c. to bring a just proportion of their best informed men respectively into the legislature.25

  Lee’s Federal Farmer asserted that all men—professional men, merchants, traders, farmers, mechanics—were, in fact, “created equal with certain unalienable rights” that included the right to govern themselves and their country. Few other Founding Fathers agreed. Even John Adams had stressed the importance of titles that confirmed the inequality of men and ensured deference of the less educated to their betters. But Lee’s Federal Farmer pointed out that “southern states are composed chiefly of rich planters and slaves… and the prevailing influence in them is generally a dissipated aristocracy.”26

  Almost three weeks after the first pamphlet with Lee’s Letters from the Federal Farmer appeared in the newspapers, Alexander Hamilton’s “The Federalist I,” the first of his essays defending the Constitution, appeared in New York’s Independent Journal. John Jay wrote the next four essays, and when Jay fell ill, Hamilton wrote all but two of the next thirty-one. With Virginia’s newly elected member of Congress James Madison writing numbers ten and fourteen, the first thirty-six essays of The Federalist appeared every week under the pseudonym “Publius” for the rest of 1787.* Four New York City newspapers and twenty-one newspapers in nine other states, including the Virginia Independent Chronicle, printed the Federalist papers. A reasoned, superbly written, and surprisingly unemotional explanation of the new constitution, The Federalist laid bare the differences between “liberty” under a republican government ruled by elected representatives of the people, and “license” in a democracy ruled by a majority with unlimited powers.

  The Federalist warned that “a certain class of men in every state” would fight ratification and “union under one government” for fear of losing “the power, emoluments, and consequences of the offices they hold under the state establishments.”27 Although Hamilton admitted that “talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state,” he insisted it would require “other talents and a different kind of merit” to elevate him to the presidency of all the states.28

  Lee disagreed, arguing vehemently that the degree of centralization prescribed by the Constitution presaged all the ills that would infect the future United States—a president with unilateral powers to issue executive orders with the force of law and a legislature empowered to confiscate private property by taxation and expand the military into a ruling class. Lee accused the Constitutional Convention of having staged a coup d’état to destroy republican government.

  “Our object has been all along to reform our federal system,” he argued, “but… the plan of government now proposed is calculated totally to change… our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government.”29

  There was no way for Richard Henry Lee or Hamilton, Jay, and Madison to measure the effects of their writings at first. By mid-December 1787 George Washington had read them and was confident The Federalist would have “a good effect” in Virginia—until he received this note from his son-in-law: “I am sorry to inform you that the Constitution has lost ground so considerably that it is doubtful whether it has any longer a majority in its favor.”30

  With Richard Henry Lee, George Mason, Patrick Henry, and Edmund Randolph allied in opposition to the proposed constitution, there seemed little hope that Virginia would ratify. Without Virginia, America’s richest and largest state, even George Washington realized there could be no effective union even if all twelve other states ratified.

  Washington wrote a spirited letter to try to rally Federalist supporters into action, charging, “There are certain characters who are no friends to general government—perhaps I might go further and add, who would have no great objection to the introductions of anarchy and confusion.”31 He accused his friends Patrick Henry and Richard Henry Lee and other opponents of the constitution of using “every art that could inflame the passions or touch the interests of men” to defeat ratification.

  “The ignorant are told, that should the proposed government obtain, their lands would be taken from them and their property disposed of, and all ranks are informed that the prohibition of the navigation of the Mississippi (their favorite subject) will be a certain consequence of the adoption of the constitution.”32

  Connecticut’s Oliver Ellsworth, who had helped draft the constitution, agreed, setting off a chain of libelous attacks on Richard Henry Lee, exposing him as the “Federal Farmer” and charging that his opposition to the constitution stemmed from personal animosity toward Washington. “In Virginia,” Ellsworth declared in an article in the American Mercury, “the opposition wholly originated in two principles, the madness of Mason and the enmity of the Lee faction to General Washington.”33

  Ellsworth’s venom knew no bounds, going on to poison printer’s ink across the nation, inciting newspapers to accuse Lee “with having instigated well-known intrigues” against Washington, including the infamous Conway Cabal. Other Federalists picked up on Ellsworth’s libel, heaping more insults and false accusations at Lee—too often and too widespread for Lee to respond. As the attacks increased, Lee grew despondent, and when they touched his family, he abandoned the field, refusing to stand for election to the Virginia ratification convention. What ended his quest was an article in the Pennsylvania Gazette, later reprinted in the Virginia Independent Chronicle:

  We hear that the eldest son of R. H. L—, Esq., is one of the most zealous and active friends of the federal government in Virginia. In a letter to his father, while in New York, before he knew his sentiments, he unfortunately told him that the constitution had no enemies in Virginia but “fools and knaves.”34

  The attacks temporarily strained Lee’s relationship with his two oldest sons, Thomas and Ludwell—both budding lawyers with political ambitions who had publicly endorsed the new constitution. In addition, the newspaper condemnations affected his ties to his younger brothers Arthur and Francis Lightfoot Lee. Francis had publicly embraced the new constitution, while Arthur had sided with Richard Henry at first, but when Richard Henry announced his refusal to serve in the ratification convention, Arthur lashed out at his older brother for political cowardice.

  “You will be regarded as having deserted a cause in which you have published your persuasion of its being of the last moment to your country,” Arthur snapped at Richard Henry. “Col. Mason laments very much that you do not stand for [Virginia’s ratification] convention,” Ar
thur went on. “He is afraid these things will injure your character.… I confess, I wish to see you elected whether you serve or not.”35

  Despite Richard Henry’s withdrawal from the political fray, his published objections in Letters from the Federal Farmer, along with public statements by George Mason and Patrick Henry, had effects far beyond Virginia.

  “Beware! Beware!” warned the Massachusetts Centinel, parroting Richard Henry Lee’s Letters from the Federal Farmer. “You are forging chains for yourself and your children—your liberties are at stake.”36 Philadelphia’s Independent Gazetteer predicted that the constitution, if ratified, would create “a permanent aristocracy,” while Freeman’s Journal, another Philadelphia newspaper, cited the dangers of congressional powers “to lay and collect taxes.”37

  Although Lee’s initial Antifederalist campaign had swayed some of the general public, his withdrawal from the active political campaign slowed the Antifederalist momentum. Federalists controlled most state legislatures, and one by one they called ratification conventions in which they dominated the proceedings. By February 6, 1788, conventions in six states had ratified the constitution: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, and Massachusetts. The three smallest states—Delaware, New Jersey, and Connecticut—had favored ratification because of the military protection offered by a continental army. Sparsely settled Georgia—beset by Indian raids from Spanish-held Florida—also needed help from a strong federal force.

  In Pennsylvania and Massachusetts powerful trading interests in Philadelphia and Boston had controlled the majorities of convention delegates—despite overwhelming popular opposition to the constitution in both states. To eke out their victory, Massachusetts Federalists pledged to “recommend” a bill of rights to the First Congress. Pennsylvania Federalists simply stole their victory, with Benjamin Franklin, of all people, ignoring all principles of self-government by leading the Pennsylvania delegation out of the Constitutional Convention, up the stairs into the Pennsylvania Assembly hall, and interrupting proceedings. He then bullied state legislators into calling a state ratification convention immediately—without debate—by promising that Philadelphia would become the new federal capital if Pennsylvania were first to ratify the constitution. Like the city’s bankers, merchants, and other major property owners, Franklin stood to reap enormous profits if the new government established the capital in Philadelphia.

  Although a huge popular majority of Pennsylvanians—especially rural voters—opposed ratification, Federalist mobs terrorized Philadelphians, throwing stones through homes and lodging houses of visiting Antifederalist delegates and their families. When the ratification convention began, Federalists tried stifling debate, with supporters in the gallery shouting down Antifederalist speakers. When Antifederalists walked out of the hall and left Federalists without a quorum to vote on ratification, convention marshals went to the lodging houses of Antifederalist delegates and carried them bodily back to the hall, where the Federalists ratified the constitution. Mobs in Carlisle and other distant rural communities burned copies of the constitution and threatened to march on Philadelphia, and farmers in western Pennsylvania threatened to secede from Pennsylvania—until icy winter winds and snows sent them all back to the shelters and warmth of their homes and hearths.

  By the time Virginians elected delegates to their state ratification convention, Maryland had ratified, and with the Federalist-dominated convention in South Carolina preparing to ratify in May, only one more state—either Virginia, New Hampshire, New York, North Carolina, or Rhode Island—would have to ratify to implement the new government. Rhode Island, however, had refused even to consider the constitution. Convinced that the state’s minuscule proportions would leave it impotent in the new union, its legislature refused to call a convention, and the people confirmed their legislature’s decision in a popular referendum in March 1788. Although New Hampshire’s legislature had called a ratification convention in February, the delegates were so divided about ratification that they adjourned without a decision and agreed to reconvene in June.

  After farmers in western North Carolina seceded and formed the new state of Franklin, the eastern establishment that controlled the legislature voted to postpone the state’s ratification convention until July. Their decision left Virginia, New Hampshire, and New York as the only possible states that could become the ninth and definitive member of the new nation.

  Like Patrick Henry, New York governor Clinton planned to block the call for a ratification convention as long as he could, but when that became impossible, he convinced the legislature to postpone elections for the convention until April 29, a month after the Virginia convention elections.

  Patrick Henry arrived in Richmond as disconsolate as George Mason at not having the oratorically gifted Richard Henry Lee at their side. Lee nonetheless peppered both men—and other Antifederalist delegates—with suggestions.

  “It becomes us to be very circumspect and careful about the conduct we pursue,” Richard Henry warned George Mason as the convention began. “On the one hand, every possible exertion of wisdom and firmness should be employed to prevent danger to civil liberty.… On the other hand, the most watchful precaution should take place to prevent the foes of union, order and government… to prevent our acceptance of the good part of the [constitutional] plan proposed.”38

  Lee expressed confidence that the four overriding Antifederalist objections to the constitution would defeat its ratification. First and foremost was the lack of a bill of rights. Their second objection was the unlimited power of the new national government to tax the people without the consent of their state legislatures—one of the issues that had provoked the Revolutionary War. And their third objection was the federal government’s power over the military—a power that could send a federal force into any state to enforce federal laws—again, an issue that had provoked the Revolutionary War. Their last major objection—and Mason, Henry, and Lee were adamant on this point—was the right of a bare majority of one in Congress to legislate against the interests of Virginia—or any other state, for that matter—and, indeed, the nation itself and the vast majority of the American people.

  It was no surprise that Patrick Henry was first to rise after the convention had fixed the rules of order and heard the contents of the proposed constitution.39 Henry hoped that he and the other Antifederalists could talk the convention to death. Indeed, Henry would come close to doing the job by himself, speaking on seventeen of the convention’s twenty-two days, often three times a day and five times on one day. On another he was the only speaker, standing seven hours to deliver his address.

  Citing Richard Henry Lee’s Letters from the Federal Farmer, Henry accused the authors of the constitution of having usurped powers and staged a coup d’état by violating the mandate of Congress. He reminded Virginians that Congress had called a constitutional convention “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein.” Instead, he charged, they effectively set out to overthrow the confederation and replace it with a national government.

  “I have the greatest veneration for… those worthy characters who composed a part of the late federal convention,” he told the Virginians, “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.40

  Henry quoted Richard Henry Lee, who had questioned delegates’ motives 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 [in Virginia], 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?”41

  Without answering his own rhetorical question, he ceded the floor to another Richard Henry Lee ally, Governor Edmund Randolph, who took the floor for what Patrick Henry and George Mason expected would be the coup de grace against ratification. Lee’s letter had, indeed, provided Randolph with all the ammunition needed to kill the constitution as written, and Henry and Mason gave Randolph a warm nod of approval as he stood to speak. But the governor ignored them, fixing his eyes on the President and 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!” He paused, then cried out,

  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.42

  George Mason’s face turned red with anger at Randolph’s unmistakable mockery of Mason’s dramatic refusal to sign the constitution in Philadelphia.

  Randolph then looked at Patrick Henry, who blanched with anger as the governor continued, “I shall now follow the honorable gentleman in his enquiry,” he continued in tones that now mocked Henry. “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.”43