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Full text of "The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body"

COLLECTIONS 



OF THE 



Virginia Historical Society 



New Series. 



VOL. IX. 



VVM. ELLIS JONES, 

PRINTER, 
RICHMOND, VA. 




THE HISTORY 



OF THE 



Virginia Federal Convention 



OF 



1788, 



WITH SOME ACCOUNT OF THE EMINENT VIRGINIANS OF 
THAT ERA WHO WERE MEMBERS OF THE BODY 

BY 

HUGH BLAIR GRIGSBY, LL.D. 

WITH A 

Biographical Sketch of the Author 

AND 

ILLUSTRATIVE NOTES 

EDITED BY 

R. A. BROCK, 

Corresponding Secretary and Librarian of the Society. 



VOL. I. 




RICHMOND, VIRGINIA. 

PUBLISHED BY THE SOCIETY. 

MDCCCXC. 



7 



EMENDATION. 

The message referred to on p. ix, line 12, may have been one of Jef- 
ferson Davis', President of the Confederate States of America. 



BIOGRAPHICAL SKETCH 

OF 

Hon. Hugh Blair Grigsby, LL.D. 



The pure, devoted and earnest life of Hugh Blair Grigsby 
was a beneficent one, and signal in its incitations. Few, if any, 
among his contemporaries exerted a more inspiring influence in 
the cause of education and in behalf of virtuous resolve in Vir- 
ginia than he ; not one, certainly, in glowing utterance, and in 
appealing picture, sounded more surely the key-note of State 
grandeur and the common weal. 

Justly remarked the late venerable and admirable Marshall 
P. Wilder,* in his last penned effort, on his couch, in his last 
days an address to be delivered before the New England His- 
toric Genealogical Society, upon the completion of nineteen 
years' service as the president of that learned body, at its annual 
meeting in 1887 : " Recall the traditions of men ; each genera- 
tion in its day bears testimony to the character of the preceding. 
He who worships the past believes we are connected not only 
with those that came before us, but with those who are to 
come after. What means those hieroglyphic inscriptions on the 
.Egyptian monuments? Says one of them : 'I speak to you 
who shall come a million of years after my death.' Another 
says, * Grant that my words may live for hundreds and thousands 
of years.' The writers were evidently thinking, not only of 
their own time, but of the distant future of the human race, and 
hoped, themselves, never to be forgotten." 

a Hon. Marshall Pinckney Wilder was born September 28, 1798, and 
died at Boston, Mass., March 16, 1886. 



VI BIOGRAPHICAL SKETCH OF 

Hugh Blair Grigsby vras born in the city of Norfolk, Virginia, 
November 22d, 1806, and died at his seat, " Edgehill," Char- 
lotte county, Virginia, April 28, 1881. He was the son of Ben- 
jamin Grigsby, who was born in Orange county, September 18, 
1770, and was a pupil of Rev. William Graham, at old Liberty 
Hall Academy, the precursor of the present Washington and Lee 
University. Among his fellow-students was Archibald Alexan- 
der, the subsequently eminent divine, and who was his companion 
when in early manhood they sought their life-work in a horse- 
back journey to Southside Virginia. Leaving his companion in 
Petersburg, Grigsby, "with his sole personal possessions in a 
pair of saddle-bags," continued his solitary ride to Norfolk, 
where he located, and was the first pastor of the first Pres- 
byterian church in that then borough. Here he married Eliza- 
beth, daughter of Hugh and Lilias (Blair) McPherson, and 
providentially and faithfully labored until, as- is recorded on 
the handsome marble obelisk erected to his memory in Trinity 
churchyard, Portsmouth, Virginia, " in the faithful discharge 
of his calling, he fell a martyr to yellow-fever on the 6th of 
October, i8io." b His widow married, secondly, January .1 6th, 



b The paternal ancestor of Hugh Blair Grigsby is said to have emi- 
grated from England to Virginia in 1660. His grandfather, the imme- 
diate progenitor of the Grigsbys of Rockingham county, John Grigsby, 
was born in Stafford county in 1720; accompanied, in 1740, Lawrence 
Washington in the forces of Admiral Vernon in the expedition against 
Carthagena ; married first, in 1746, a Miss Etchison and settled on the 
Rapid Anne river in Culpeper county. His wife dying in 1762, he 
married secondly in 1764, Elizabeth, daughter of Benjamin and Ann 
(Campbell) Porter, of Orange county, Virginia. The issue by the first 
marriage was five children, the eldest of whom was James Grigsby, 
born November loth, 1748. The issue of the second marriage was nine 
children, the youngest of whom was Captain Reuben Grigsby, born 
June 6th, 1780, in Rockbridge county; educated at Washington Col- 
lege; teacher; farmer; member of the House of Delegates of Virginia; 
Captain United States Army in the war of 1812; sheriff of Rockbridge 
county; trustee of Washington College 1830-43; died February 6th, 
1863. (See obituary, Richmond Enquirer, February loth, 1863). An 
interesting incident in the boyhood of James Grigsby has been trans- 
mitted. Whilst hunting with a pack of hounds near the Natural Bridge 
in 1781, he encountered the French tourist, the Marquis de Chastellux, 
and was his guide to the Bridge, and prevailed upon him to become 
the guest of his father. These attentions the Marquis records in his 



HUGH BLAIR GRIGSBY. Vll 

1817, Dr. Nathan Colgate Whitehead c (born in Southampton 
county, Virginia, April 8th, 1792,) who, although educated as 
a physician, relinquished practice and was for twenty- seven years ' 
the honored president of the Farmers Bank of Virginia, in Nor- 
folk. He died in 1856. Hon. John B. Whitehead, ex-mayor of 
Norfolk is the issue of this marriage. In connection with the 
prime service of Rev. Benjamin Grigsby as founder of the first 
Presbyterian church in Norfolk, it may be pleasing to add a 
singular exemplification of pious constancy and fealty, as recently 
communicated to the writer by Mr. Whitehead. He writes : 
" From the completion of the building of the first and only 
Presbyterian church in the borough of Norfolk, in 1802, to the 
present time, the elements for the communion service in our 
church have been presented by the mother and grandmother of 
Mr. Grigsby and the writer ; by our grandmother until 1822, 
and by our mother up to December, 1860 ; and by my wife to the 
present time, and, with the exception of three years (during the 
period of the late war) have been furnished from our old home 
(in which I reside) from the year 1808. I would also state that 
the Wednesday evening prayer-meetings were held in our parlors 
from 1808 to 1827, in which last year the late distinguished 
scholar and jurist, William Maxwell, LL.D. (long the effi- 

" Travels," of which he presented a handsomely bound copy to his 
youthful guide and entertainer. James Grigsby married twice, first, in 
1768, Frances Porter, the sister of the second wife of his father, and 
settled at "Fancy Hill," Rockbridge county. Their eldest son, the 
father of Hugh Blair Grigsby, was christened Benjamin Porter Grigsby, 
but appears to have omitted the use of the second name. He was a 
trustee of Washington College 1796-1807. 

Among the descendants of John Grigsby were the following officers 
in the Confederate States Army : 

Generals E. Frank Paxton, Albert Gallatin Jenkins and J. Warren 
Grigsby, Colonel Andrew Jackson Grigsby, and Major Andrew Jackson 
Paxton. 

The editor is indebted to Miss Mary Davidson, Lexington, Va., of 
the Grigsby lineage, for the facts embraced in this note. 

^The Whitehead is a family of early seating in Virginia. Thomas 
Whitehead was granted 162 acres of land in Hampton parish, York 
county, March 6, 1653. Book No. 3, page 9. Robert Whitehead, John 
Bowles and Charles Edmond were granted 3,000 acres in New Kent 
county, March 25, 1667. Book No. 6, page 45. 



Viii BIOGRAPHICAL SKETCH OF 

cient Corresponding Secretary and Librarian of the Virginia 
Historical Society), one of the elders, built for the use of the 
'increased congregation a beautiful edifice for the purpose." 

Hugh Blair Grigsby in youth was of delicate constitution, and 
it was feared that he would be an early victim to pulmonary dis- 
ease, but prudence and systematic physical exercise on his part 
happily surmounted the dread tendency, and ensured to a green 
old age a life of abounding usefulness. He was a studious lad. 
Among his early tutors were Mr. William Lacy, of Prince Ed- 
ward county, and the Rev. W. W. Duncan, the father of the late 
eloquent divine and honored president of Randolph-Macon Col- 
lege, Rev. James A. Duncan, D. D. He subsequently entered 
Yale College, remained two years, and gained creditable distinc- 
tion in his studies and in versification. He took here, among 
other studies, the law course, with the view of making it his pro- 
fession. This design he was constrained to relinquish because 
of an increasing infirmity deafness which continued through 
life. His bias for biography was early evinced. There is pre- 
served by his family a volume in MS., written in his eighteenth 
year, giving sketches of the character, personal appearance 
and social traits of the distinguished of Virginian statesmen 
and clergy with whose careers he had become most familiar. 
Through special predilection, as was markedly evinced, he em- 
barked in journalism, and became the editor and owner of the 
Norfolk Beacon, upon which he was wont often to say he did the 
work of two or three persons much of the time during the six 
years that he conducted the newspaper. His editorials were all 
written in a standing posture at his desk, and his daily hours of 
labor were often a majority of the twenty-four. Such earnest ap- 
plication met its reward in a comfortable competency of $60,000, 
with which he retired from the paper, a step, indeed, which his 
physical condition indicated as judicious, as his lungs seemed to 
be seriously threatened. He now devoted himself to athletic 
exercises, and acquired quite a proficiency as a boxer and a 
pedestrian. 

It is noteworthy that he accomplished a journey on foot to 
Massachusetts, through several of the New England States and 
the lower portions of Canada, and back to Virginia. 

In the midst of his arduous editorial labors, he found variation 
in service in the legislative halls of his State. He was a member 



HUGH BLAIR GRIGSBY. IX 

of the House of Delegates from Norfolk in 1829 and 1830, and 
during the term served also as a member of that constellation of 
talent, the Virginia Convention of 1829-' 30, succeeding in that 
eminent body General Robert Barraud Taylor, who resigned his 
seat. That his selection for this responsible representation was 
judicious, his subsequent manifestations gave just evidence. It 
is narrated of him that " an argument advanced by him, and 
published in the Richmond Enquirer under the signature of 
' Virginiensis,' in reply to Sir William Harcourt in an article on 
international law, under the signature of * Hortensius,' in the 
London Times, was afterwards substantially incorporated in a 
message of President Buchanan." 

Mr. Grigsby married, November igth, 1840, Miss Mary Ven- 
able, daughter of Colonel Clement Carrington, of " Edgehill," 
Charlotte county, who was the son of the distinguished jurist, 
Paul Carrington the elder, and a battle-scarred veteran of the 
Revolutionary War. Colonel Carrington, after having served first, 
at an early age, in several expeditions of the State line in Vir- 
ginia, joined as a cadet the legion of Light-Horse Harry Lee of 
Greene's army. At the age of nineteen he fought bravely at the 
bloody battle of Eutaw, where he was struck down by a severe 
and dangerous wound in the thigh. He faithfully served as a 
just and impartial magistrate of his county for more than fifty 
years. He died November 28th, 1847, aged eighty-five years. 
From the period of his marriage until the death of Colonel Car- 
rington, Mr. Grigsby made his home in Charlotte county. After 
that event he removed temporarily to Norfolk, but returned to 
"Edgehill," the patrimonial estate of Mr. Grigsby, upon which 
he henceforth resided until his death. Here, in the bosom of his 
loving family and in the midst of constant and admiring friends, 
he led a peaceful and contentful life, and yet with a marked ex- 
emplification of varied usefulness and moral and intellectual influ- 
ence. The habits of systematic application, enforced and stimu- 
lated by necessity in youth, together with impelling predisposition 
and acute mental gifts, eminently fitted him for historical re- 
search, the results of which was an extensive mass of informa- 
tion which made him not only the select medium of voicing the 
consensus of chaste and reverential sentiment on momentous oc- 
casions, but quickened him alike in mental and physical action 
in the requirements of everyday life. Not only did his active 



X BIOGRAPHICAL SKETCH OF 

being find time for an extensive correspondence with scholars 
of varied culture, historical students, statesmen, and the votaries 
of science ; the frequent delivery of chaste and eloquent ora- 
tions, but he found time withal to conduct with singular sagacity 
and providence the operations of a large plantation. As a friend 
and neighbor narrates d : "In planning and executing improve- 
ments, constructing a dyke of some three miles in length, arrang- 
ing the ditches of his extensive low-grounds, so that a heavy 
rain fall could be easily disposed of, and bringing all into a high 
state of cultivation, he set an example of industry and energy 
which every farmer would do well to emulate. He had ample 
means, and we have sometimes heard his efforts characterized as 
fanciful or Utopian. But the result shows method, skill and in- 
dustry ; the process was necessarily laborious, but the result was 
grand." Of his prided engineering achievements in behalf of 
agriculture, a venerable and revered friend has taken pleasing 
cognizance, as will be subsequently noted. The simplicity of 
character of Mr. Grigsby rendered him averse to any appearance 
of ostentation. He was considerate and careful in his ordinary 
expenditures, but amply provident in every circumstance of hos- 
pitality. His welcome was as spontaneous as his nature was 
genial, and his mind far-reaching and comprehensive. With the 
tenderest of instincts and with sympathies immediately respon- 
sive to truth, socially it was not otherwise than for him to be 
delightsome. His just economy gave his nobility of character 
ampler scope for beneficent exemplification. It allowed the 
means for the purchase of books and the encouragement of the 
arts, and thus, too, in collected treasures was afforded a warming 
and directing impetus towards the intellectual development of 
his neighbors and his kind. With heart and mind acutely sen- 
sitive to impressions of merit and conceptions of worth, his being 
was an expanding treasure-house of all and aught of value and 
virtue of which it had or might have cognizance. 

Lingering reverently in the glorious walks of the past, with an 
instinct born of purity, and a mental grasp only possible in emu- 
lous affection, he proudly held in mirrored brightness to the 
contemplation of his fellows of this generation the moral worth 



d Leonard Cox, Esq., editor and proprietor of The Charlotte Gazette, 
in the issue of his paper of May 12, i88r. 



HUGH BLAIR GRIGSBY. XI 

and glory of the past, as he conjured, to our mind's eye, in ten- 
derness and reverence, in vivid reality, the forms of our fathers, 
whose deeds gave it value. Such a man, such a master-mind, 
systematically trained to the requirements of the present, con- 
stantly alive to enlightened progress, mental and material, could 
but invoke ennobling and healthful impulse incarnation as he 
was of the Christian, the scholar and the patriot. 

His whole being seemed a sensitive cluster of clinging tendrils, 
which ever sought to grasp and twine themselves about some ob- 
ject or action of the past to be cherished. Ennobling as he was 
in his warming conceptions, stimulating as he was in his glowingly 
pictured lessons, his being found vent also in exemplification, if 
less brilliant, yet scarcely less enduringly useful. " Man is a natu- 
rally acquisitive animal." Scarce one of us with an object or 
aim in life, it has been urged, but who is in some sense a "collec- 
tor." The value of the collector is patent in the only satisfac- 
tory elucidation of the past yielded by its records, its monuments, 
and specially by the familiar belongings the concomitants and 
appliances of every-day life of our kind who have preceded us. 

Mr. Grigsby was possessed with an insatiable fondness for and 
enthusiastic eagerness to possess, to hold as his own, not only 
the works of the great, the good, and the gifted books, works 
of art, and objects of curious interest and beauty but also 
souvenirs of possession, objects that had been loved and used by 
those worthy of his love. His library, for which he had con- 
structed a separate building peculiarly adapted to the purpose, 
numbered some six thousand volumes in the varied branches of 
literature, in which probably the ancient classics and history and 
biography predominated. Many of the volumes were singularly 
endeared to him because they had belonged to and been lov- 
ingly conned by predecessors of worth and learning. It con- 
tained many volumes from the choice library of the erratic John 
Randolph, of Roanoke, to the auction sale of which Mr. Grigsby, 
with much self-satisfaction, liked to tell that he trudged on foot. 
The relics treasured by him were many and varied. Perhaps as 
endeared as any, approaching the claim to a collection, was that 
of canes which had belonged to great men and cherished asso- 
ciates, or had grown in spot historic and sacred. These sup- 
porting staffs he was, with jealous impartiality to the memory of 
the donor or departed friend, in the habit of using in turn, thus 







Xii BIOGRAPHICAL SKETCH OF 

one day he was assisted in his walks with the cane of a loved 
uncle, Reuben Grigsby, another with that of his revered friend, 
Governor Tazewell, another with a staff from the Mount of 
Olives, and so on through more than a score of reverential ex- 
ercises. 

Every available space of the walls of his dwelling and library 
were covered with beautiful and choice paintings, and every 
nook and appropriate niche was graced with a piece of statuary 
busts of the great and good, or idealic creations. 

He did much, if not more than any other man, to foster the 
genius of our lamented Virginia artist, Alexander Galt, e and 

e His ancestry is said to have been of Norman origin, and the name 
originally Fitz Gaultier. They were brought with other Normans to 
Scotland in the twelfth century to instruct the natives in military tactics, 
and lands were granted them at Galston (quasi Galtstown) in Ayreshire. 
The immediate ancestor of the Gaits of Tidewater Virginia was a Cove- 
nanter. Two of them were banished as Presbyterians to Virginia by 
the Scotch Privy Council with Lord Cardross, about 1680. One married 
the daughter of a wealthy planter, the other returned to Scotland after 
the Revolution of 1688 and was the ancestor of the well-known writer, 
John Gait. Alexander, the second son and fourth child of Dr. Alex- 
ander and Mary Sylvester (Jeffery) Gait, was born in Norfolk, Virginia, 
January 26, 1827. His talent first exhibited itself at fifteen years of age 
when he began to draw pencil portraits. His next advance was in 
carving in alabaster and conchilia, and he executed many faithful por- 
traits in cameo. In 1848, he went to Florence, Italy, for instruction in 
art, and in a short time was awarded the highest prize then offered for 
drawing. He returned to Virginia, bringing several pieces of his work. 
The "Virginia" was his first ideal bust. He remained in America 
several years, visiting in the while the Southern States and executing 
a number of orders. At the State Fair held in Charleston, S. C, he 
received prizes for work exhibited there. He returned to Florence in 
1856, with many orders, among them one from the State of Virginia 
for a statue of Thomas Jefferson, which preceded him on his return to 
Virginia in 1860, and now adorns the Library Hall of the University of 
Virginia. A Virginian in every pulse and instinct, he naturally tendered 
his service to the mother State in the rupture of the Union, and was 
first connected with the Engineer Corps near Norfolk in planning forti- 
fications. Later he served on the staff of Governor Letcher. In the 
winter of 1862 he visited the camp of General T. J. Jackson in execu- 
tion of some commission but with the design also of studying the 
features of the great chieftain to prepare him for the making of a 
statue. He unfortunately contracted, during this visit, small-pox, from 
which he died in Richmond, January 19, 1863. His remains rest in 



HUGH BLAIR GRIGSBY. Xlll 

possessed a number of his choicest works, among them being 
"Columbus," " Sappho," ''Psyche," and " Bacchante." 

The gentle, loving heart of Mr. Grigsby went out to all things 
animate, and with a keen sense of the beauties of nature his ad- 
miration found grateful expression in pen and converse. " His 
loving nature," as his fondly cherished wife writes, "made pets 
of animals and birds," and was especially demonstrative "to 
little children, whose clear infantile voices reached his impaired 
hearing more distinctly than did the tones of adults." "A 
scholar, and a ripe and good one," his commune with his books 
was daily, with every moment to be spared from active demands 
and social claims. " He was a rapid reader, and read with pen 
in hand. With French and Latin authors he was in as constant 
communion as with the writers of his own tongue." Although 
his infirmity rendered conversation with him difficult, yet his 
own discourse, in its easy dignity and range of digested informa- 
tion, was singularly entertaining, lightened, too, as it was with 
frequent ripples of playful fancy, and made piquant with a vein 
of quiet humor which often found striking expression. 

Mr. Grigsby was a devout and earnest Christian, and a wor- 
shipper in the forms of his Presbyterian ancestors, and for years 
had been in the habit of leading the regular devotions of his 
household. "Although his name was not on the church book," 
he "was a punctual and large contributor to his minister's salary." 
He possessed the faculty of chaste versification in a striking de- 
gree, and some of his productions are as impressive as were the 
powers of his gift of oratory. His absolute trust in his Maker 
is touchingly exemplified in the following : 

Hollywood Cemetery. A number of his ideal works were stored in 
the warehouse of a friend in Richmond, and were destroyed in the con- 
flagration of April 3, 1865, incident on the evacuation of the city. His 
meritorious works which are extant probably number two-score or 
more, and include, with the statue of Jefferson, busts of eminent men 
and chaste and beautiful ideal creations. Representative ancestors of 
Alexander Gait in several generations have reflected lustre on the 
medical profession in Virginia, and been most beneficently connected 
with her asylums for the unfortunate insane. The editor is indebted to 
Miss Mary Jeffery Gait, the niece and heir of the subject of this note, 
for the details embodied. 

/" In Memoriam," by Rev. H. C. Alexander, D. D., LL.D., Hampden- 
Sydney College, Va., Central Presbyterian, Dec. 14, 1881. 



BIOGR4PHICAL SKETCH OF 



HYMN. 

Written on the morning of the 220! of November, 1877, when I entered 
my seventy-second year. H. B. G. 

I. 

Lord of the flaming orbs of space ! 

Lord of the Ages that are gone ! 
Lord of the teeming years to come 

Who sitt'st on Thy Sovereign Throne : 

II. 

Look down in Mercy and in Grace 

On a poor creature of a Day, 
Whose mortal course is nearly run, 

Who looks to THEE, his only stay. 

III. 

In Thee, in Thee alone, O Lord ! 

Thine aged Servant puts his Trust 
Thro' the blest passion of Thy Son, 

Ere his frail frame returns to dust. 

IV. 

Uphold him thro' Earth's devious ways 
Sustain him by Thy gracious Power ; 

And may the Glory of Thy Praise 

Break from his lips in Life's last Hour. 

V. 

Grant the dear Pledges of Thy Love, 
Thy mercy has vouchsaf 'd to him 

PEACE in the shadow of Thine Ark 
REST 'neath Thy shelt'ring Cherubim. 

VI. 

Lord, heed Thy servant's grateful praise 
For all the mercies Thou hast given : 

For Health and Friends and length of Days 
Thy bleeding Son a promised Heaven. 

VII. 

Oh ! may he live in fear of Thee 

Oh ! may he rest upon Thy Love, 
When he shall cross that stormy Sea 

That keeps him from his Home above. 



HUGH BLAIR GRIGSBY. XV 

VIII. 

Oh! bless those lov'd ones of his Heart, 
While ling'ring on Earth's lonely Shore, 

'Till we shall meet no more to part, 
And chant Thy Praises evermore. 

What a triumphant refrain is this : 

I CANNOT DIE. 

John xi, 26. 
By FORTH WINTHROP. g 

Time may glide by 

My pale wan face may show the waste of years ; 
My failing eyes fill with unbidden tears ; 

But I'll ne'er die! 

Fierce agony, 

That racks, by night and day, the mortal frame, 
May leave of life aught but the empty name ; 

But I'll ne'er die ! 

The Sea's hoarse cry 

May shake the shore ; and the wild toppling waves 
May open wide for me their welt'ring graves 

But I'll ne'er die ! 



. Grigsby, in reading the " Life and Letters of John Winthrop," 
the first Governor of Massachusetts, by the Hon. Robert C. Winthrop, 
LL.D., was particularly attracted by the sketch of Forth Winthrop's 
brief career, and has affixed his name to these verses in memoriam, 
and in token, it may also be taken, to the admirable friend who had 
piously perpetuated the memory of his young relative of so many pre- 
ceding generations. 

Forth Winthrop, was the third son of Governor John Winthrop. He 
was born on the 3Oth of December, 1609, at Great Stambridge, in Essex 
county, England, where his mother's family the Forths resided. He 
was prepared for college at the somewhat celebrated school founded by 
Edward VI, at Bury St. Edmunds, and entered Emanuel College, Cam- 
bridge, in 1627. After finishing his course at the University, he had 
engaged himself to his cousin, Ursula Sherman, and was contemplating 
marriage before following his father to New England. But a sudden 
illness terminated fatally, and the parish register at Groton records his 
burial on the 23d day of November, 1630. He was a young man of 
great promise, and his letters, while he was at school and at college, 
betoken him as one of the most affectionate of sons and brothers. 



BIOGRAPHICAL SKETCH OF 

True Chivalry, 

That bathes with patriot blood th* embattled plain, 
May count my mangled corse among the slain 

But I'll ne'er die! 

Around may lie, 

In grassy mound, or 'neath the sculptured stone, 
The dear fresh dead, and those that long have gone- 

But I'll ne'er die ! 

Love's moisten'd eye 

May watch the falling lip the gasp for breath 
And all the sad investiture of Death 

But I'll ne'er die! 

My friends may sigh, 

As the house fills ; and as with sable plume 
The Hearse leads forth the cavalcade of gloom- 
But I'll ne'er die ! 

All silently 

Around the new-made grave my friends may crowd, 
And my dear young and precious old be bow'd 

But I'll ne'er die ! 

As Ages ply 

Their round, my shape may vanish from the land, 
With those that felt the pressure of my hand- 
But I'll ne'er die! 

I soon must lie 

Beneath the lid ; and the triumphant worm 
May revel on my frail and prostrate form 

But I'll ne'er die ! 

Full solemnly 

Kind friends may place me in the narrow cell, 
And in soft tones utter the last farewell 

But I'll ne'er die! 

Unconsciously 

My name my dearest friends will cease to call, 
And the loud laugh ring in my own old hall 

But I'll ne'er die ! 

LIFE'S VICTORY 

Is mine ! I wear the CONQU'ROR'S wreath, 
Thro' HIM who drew the fatal sting of Death- 
How can I die ? 



HUGH BLAIR GRIGSBY. XV11 

In upper sky, 

Clothed in the shining robes of Sov'reign Grace, 
As 'mid Heav'n's hosts I hail my Saviour's face 

O ! who can die ? 

That symphony, 

Sounding from Earth to Heav'n responsively, 
Exalts me here; " HE THAT BELIEVES IN ME 

CAN NEVER DIE." 
November, 1876. 

Among the many of the poetic compositions of Mr. Grigsby, 
printed and in MS., an ode to Horace Binney, the " Nestor of the 
American Bar," on the completion of the ninety-third year of 
his age, and " Lines to my Daughter on her Fourteenth Birth- 
day," may be noted. The latter, a pamphlet of sixteen 8vo 
pages, breathes a spirit of tender affection, of lofty patriotism, 
and of fervent piety. 

Mr. Grigsby became the President of the Virginia Historical 
Society January 3d, iSyo, 11 succeeding that profound scholar and 
eminent statesman, William Cabell Rives. Mr. Grigsby had for 
many years given essential and earnest service in support of the 
Society, and was, in truth, one of the vital springs of its con- 
tinued existence. 

He it was to first propose a hall, a safe repository of its own 
for the preservation of its treasures, and this hope and object he 
fondly cherished and fostered assiduously to his latest moment. 
Of his invaluable contributions to its mission, those herein listed, 
with others of his historical productions, are permanent memo- 
rials in the annals of American literature. 

Of the inestimable value of his services in behalf of the ven- 
erable institution of learning, William and Mary College, the 
second in foundation in America, the action of its Board of Visi- 
tors and Governors will bear best attestation. Of this object of 
his fervent and constant regard, in the fullness of his heart he 
said: " The names of her sons have become national property, 
and their fame illustrates the brightest pages of our country's 
history." 

h He had at a previous period been proffered the post of Correspond- 
ing Secretary and Librarian, to succeed William Maxwell, LL.D., 
but the demands of a large plantation and domestic claims properly 
forbade his acceptance of the trust. 



XVlii BIOGRAPHICAL SKETCH OF 

Two features of the college to which he contributed survive in 
their offices for good. 

He contributed, in 1870, $1,000 to the Library Fund, and in 1871 
founded with a gift of a like sum the " Chancellor Scholarship/' 

In an address delivered by the Rev. William Stoddert, D. D.,i 
in the Chapel of William and Mary College, on the 3d of July, 
1876, he made this touching mention : 

" The speaker of last night gave some instances of men who had 
won success in spite of obstacles apparently insurmountable he 
mentioned the blind professor of optics at Oxford ; Ziska, the 
Bohemian general, and Milton, both blind ; Prescott, nearly so ; 
Byron and Scott, both lame ; Beethoven, deaf; and, continuing, 
said : I might, in this connection, allude to one still nearer, even 
within these walls, although my words do not reach him. I might 
speak of his style, with its exquisite attractiveness ; of his his- 
toric research, which has divined the hidden springs of human 
movement ; of his mind, moulded by classic models until, even 
in ordinary conversation, his sentences are replete with elegance 
and strength ; of the charm of his narration, beautified by the 
graces which have given immortality to Herodotus and Zenophon, 
to Livy and Tacitus; whose intellect seems still to brighten as 



i Rev. William Stoddert, D. D. (whose paternal name was legally 
changed in early manhood); born 1824; died 1886; was the son of 
Dr. Thomas Ewell, of Prince William County, Va., a loved and distin- 
guished practitioner of medicine ; the brother of Richard S. Ewell, Lieu- 
tenant-General C. S. Army, and of Colonel Benjamin S. Ewell, LL.D., 
President Emeritus of William and Mary College after quite two-score 
years of devoted service as instructor and President. Dr. Stoddert was 
graduated from Hampden-Sidney College and the Union Theological 
Seminary, ordained in the Presbyterian Church, and became a most 
successful preacher, popular lecturer, and esteemed teacher in Tennes- 
see. William and Mary College conferred on him, on the occasion 
above, the degree of D. D. 

After a period of suspension it is most gratifying to note that the 
grand old college of William and Mary has resumed its useful functions 
under the able and energetic presidency of trie Hon. Lyon G. Tyler, son 
of a former Chanceller, John Tyler, President of the United States. The 
number of students in attendance was last reported as 120, with the 
prospect of increase. With its proud prestige, advantages in healthful 
and central location, it maybe hoped that its expanding usefulness may 
be even greater and more influential than in any period of its glorious 
past. 



HUGH BLAIR GRIGSBY. XIX 

years roll on; whose learning still increases, whose memory still 
improves, and who is cut off from the sweet converse of friends, 
so that these words can be uttered as though he were absent, be- 
fore the Chancellor of William and Mary College, Doctor Hugh 
Blair Grigsby." 

With the studious devotion and generous spirit of Mr. Grigsby 
it may be inferred that membership in learned institutions was 
numerously and gladly conferred on him. The writer has been 
informed that among such distinctions he was a member of the 
American Philosophical Society. Circumstances have impelled 
haste in the preparation of this notice, and the writer has thus 
been debarred from the desired requisite reference. 

Mr. Grigsby 's happy and inspiring connection with the Mas- 
sachusetts Historical Society is with just appreciation attested 
in the warm utterances of its venerated president as herewith 
embodied. 

It is embarrassing to attempt, without accessible record, an 
enumeration of the literary contributions of Mr. Grigsby. Mr. 
Winthrop admiringly alludes to his grace and merit as a volu- 
minous correspondent. 

In his own newspaper, in others of his native city and State, 
and doubtless in other sections, of our Union appeared many 
instructive articles from his pen. 

The Virginia Historical Register, the organ of the Virginia 
Historical Society, and the Southern Literary Messenger, were 
frequently contributed to. An article in the latter may be re- 
ferred to in connection with the library of Mr. Grigsby, that on 
"The Library of John Randolph of Roanoke." (Vol. XX, 

1853, Page 76). 

Among his public addresses, those most often referred to are 
the following : 

Address on the Mecklenburg Declaration of Independence, 
delivered in the Athenaeum, Richmond, Va., in 1848. 

Discourse on the Virginia Convention of 1829-30, before the 
Virginia Historical Society, December 15, 1853. 

Discourse on the Virginia Convention of 1776, delivered before 
the College of William and Mary at Williamsburg, July 3, 1855. 

Discourse on the Virginia Convention of 1788, before the Vir- 
ginia Historical Society, February 23, 1858. 



XX BIOGRAPHICAL SKETCH OF 

Discourse on the Character of Jefferson, at the unveiling of 
his statue in the library of the University of Virginia, 1860. 

Address on the Life and Character of Littleton Waller Taze- 
well, before the bar of the city of New York, June 29, 1860. 

Address before the Literary Societies of Washington and 
Lee University, in 1869. 

Address, " Some of our Past Historic Periods bearing on the 
Present," delivered before the Virginia Historical Society, March 
10, 1870. 

Address before Hampden-Sidney College, on the centenary 
of its founding, June 14, 1876. 

Of this, the last of such public appearances of Mr. Grigsby, it 
may be well that the following account should be here given : 

" Mr. Grigsby, who had passed beyond the age of three-score 
and ten, was so pale and appeared so feeble that the audience 
was not surprised when he asked the indulgence of being per- 
mitted, if necessary, to sit while he delivered his address. But 
his strength seemed to increase as he advanced, and he remained 
on his feet during the whole two hours occupied in the delivery. 
His historical sketch displayed a familiarity with the persons and 
events connected with the Coljege sixty years ago, and pre- 
viously, and was clothed in language so graphic and elegant, 
and illustrated with anecdote and narrative so apposite, as to 
render the performance, in the whole, acceptable and delightful 
in a high degree to his hearers. The enthusiasm kindled by his 
theme evinced the warmth of his affection for his native State 
and all that belongs to her glory in the past, and gave the charm 
of impressive eloquence to his discourse. His plan embraced 
personal sketches of the six earlier presidents of the College and 
of the first trustees ; but he had not time nor strength to deliver 
all that he had prepared, and was compelled to withhold a part." 

The disease which precipitated the death of Mr. Grigsby was 
incurred in the performance of an affectionate office. In making 
a visit of condolence to his cousin, Colonel John B. McPhail, 
who had been bereft of his wife, and who lived some distance 
from the home of Mr. Grigsby, the latter contracted a deep cold 
which developed into pneumonia. " During a protracted and 
painful illness of several weeks' duration, he exhibited an unfalter- 
ing patience and resignation to the will of God. When he sup- 



HUGH BLAIR GRIGSBY. XXI 

posed himself to be dying he summoned his immediate family 
to his bedside, and bade them adieu, telling them at the same 
time that he had made his preparation for the other world while 
he was in health. Three days before the final stroke, which fell 
April 28th, 1881, he was heard to say : " I desire to live ; yet I 
feel submissive to the Divine will." An offering from his friend, 
Mr. Winthrop, a box of exquisite white flowers, reached him in 
his last moments and served to decorate his grave. 

His remains rest beneath a chaste and stately marble obelisk, 
erected by his widow, in Elmwood Cemetery, Norfolk, Va. It 
bears the following inscription : 

Hugh Blair Grigsby, LL.D. 

Born in Norfolk, Va., November 26th, 1806. 

Died at "Edgehill," Charlotte county, Va., 

April 28th, 1881. 

President of the Virginia Historical Society. 

Member of the Virginia Convention, 1829-30. 

Chancellor of the College of William and Mary. 

Mr. Grigsby left issue two children : i. Hugh Carrington, born 
in Philadelphia, Pa., February 13, 1857. ii. Mary Blair, born 
in Norfolk, Va., July 9, 1861 ; married December i, 1882, W. 
W. Gait, Paymaster United States Navy, son of Prof. W. R. 
Gait (an esteemed educator of Norfolk, Va.,) and nephew of Alex- 
ander Gait, the sculptor. Issue : four children : Hugh Blair 
Grigsby, William R. , Robert Waca and Mary Carrington Gait. 

At a called meeting of the Executive Committee of the Vir- 
ginia Historical Society, held at one o'clock P. M. April 3Oth, 
1 88 1 Vice- President William Wirt Henry presiding the fol- 
lowing action in tribute to the late President of the Society, the 
Hon. Hugh Blair Grigsby, LL.D., was taken : 

WHEREAS, This Committee has just learned of the death of the Hon. 
HUGH BLAIR GRIGSBY, LL.D., the late President of this Society, which 
occurred at "Edgehill," his residence, in the county of Charlotte, on 
Thursday the 28th instant; be it 

Resolved, That we cannot too deeply deplore the heavy loss which 
we have sustained in the death of one whose devotion to the interests 
of the Society, united to his great learning and accomplishments, have 
B 



XXU BIOGRAPHICAL SKETCH OF 

been so effective in forwarding the objects for which this Society was 
formed. 

Resolved, That the Hon. HUGH BLAIR GRIGSBY, LL.D. , by his natural 
endowments, by his passionate devotion to learning in all its forms, by 
his conspicuous purity of life, and by his invaluable contributions to 
the literature of his native State, has deserved, as he has enjoyed, the 
admiration, the love, and the gratitude of his fellow-citizens, and has 
been recognized beyond the borders of his State as a fitting type of the 
men who have shed so great a lustre around the name of Virginia. 

Resolved, That Dr. Charles G. Barney and George A. Barksdale, 
Esq., be appointed on behalf of this Society to attend the funeral ob- 
sequies of the dece'ased in the city of Norfolk, and that a copy of these 
resolutions be forwarded to his widow and children, with the assurance 
of our deep sympathy with them in their heavy affliction. 

WILLIAM WIRT HENRY, 

Chairman. 



At the monthly meeting of the Massachusetts Historical Soci- 
ety, held in the Dowse Library, Boston, May i2th, 1881, the Presi- 
dent, the Hon. Robert C. Winthrop, occupied the chair. In an 
announcement of the deaths of members of the Society and of other 
distinguished men, he remarked : j "An absence from home of 
only three weeks, just ended, has been marked for us, gentlemen, 
by the loss of several distinguished and valued friends, at least 
two of whom were connected in different relations with this So- 
ciety. I had been at Washington less than a week when I was 
summoned as far back as Philadelphia to serve as a pall-bearer at 
the funeral of the revered and lamented Dr. Alexander Hamilton 
Vinton. Returning to Washington from that service, I was met 
by a telegram announcing the death of an honorary member, 
who was endeared to more than one of us by long friendship and 
frequent correspondence the Hon. Hugh Blair Grigsby, LL.D., 
of Virginia. A day or two only had elapsed before the news- 
papers informed me that the venerable Dr. John Gorham Palfrey 
had passed away at Cambridge. The papers of a very few days 
later apprised me that the excellent Charles Hudson had also 
been released from the burdens of the flesh. Much more time 
would have been required than the few hours I have had at my 
command since I reached home on Thursday evening for prepar- 

j Proceedings of the Massachusetts Historical Society, 1880-81, Vol. 
XVIII, pp. 419-422. 



HUGH BLAIR GRIGSBY. XX111 

ing any adequate notice of such names ; but I should not be for- 
given for not dwelling for a moment on those which have had 
a place on our rolls." 

After a warm tribute to the worth of Mr. Hudson, Mr. Win- 
throp continued : " Of the remarkable qu tlities and accomplish- 
ments of our deceased honorary member, Mr. Grigsby, of Virginia, 
I hardly dare to speak with the little preparation which it has been 
in my power to make in the single day since my return home. 
I trust that our friend, Dr. Deane, who knew him as well and 
valued him as highly as I did, will now, or hereafter, supply all 
my deficiencies, and place him on our records as he deserves to be 
placed. Indeed, he has placed himself there with no mistakable 
impress. 

" No one of our honorary members on either side of the At- 
lantic has ever exhibited so warm a personal interest in our pro- 
ceedings, or has so often favored us with interesting letters, which 
have been gladly printed in our successive serials or volumes. 

" A Virginian of the Virginians President of their Historical 
Society, and Chancellor of their oldest college ; bound to the Old 
Dominion by every tie of blood and of affection ; proud of her 
history, with which he was so familiar ; proud of her great men, 
with so many of whom he had been personally associated in 
public as well as private life ; sympathizing deeply in all of her 
political views and with all her recent trials and reverses he was 
never blind to the great men and great deeds of New England, 
never indifferent to our own Massachusetts history in particular ; 
on the contrary, he was always eager to cultivate the regard and 
friendship of our scholars and public men. No work from our 
press seemed to escape his attention. There was no poem of 
Longfellow, or Whittier, or Holmes, or Lowell, no history of 
Prescott, or Bancroft, or Palfrey, or Motley, or Frothingham, or 
Parkman, which he did not read with lively interest and discuss 
with discrimination and candor. 

" In the little visit which he made us ten years ago, he formed 
personal friendships with not a few of those whom he had known 
only by their works, and they were a constant source of pleasure 
and pride to him. For myself, I look back on more than twenty 
years of familiar and friendly correspondence with him inter- 
rupted by the war, but renewed with the earliest return of peace 
which was full of entertainment and instruction, and which I 



XXIV BIOGRAPHICAL SKETCH OF 

shall miss greatly as the years roll on, and as the habit and art 
of letter-writing is more and more lost in telegraphic and tele- 
phonic and postal-card communication. 

"There is hardly anything more interesting in all our seven- 
teen volumes of Proceedings than his letter to me of- March 30, 
1866, beginning : ' Five years and fourteen days have elapsed 
since I received a letter from you ' giving a vivid description of 
some of his personal experiences during the Civil War asking 
whether it was true that one whom he ' so much esteemed and 
honored as President Felton was no more,' adding : ' Is Mr. 
Deane living?' and abounding in the kindest allusions to those 
from whom the war had so sadly separated him. 

"I may not forget to mention that Horace Binney, of Phila- 
delphia, though thirty years older than Mr. Grigsby, was a spe- 
cial correspondent of his, and that the last letter which Mr. Bin- 
ney wrote before his death, at ninety-four, was to our lamented 
friend. 

" Mr. Grigsby, from an early period of his life, suffered severely 
from imperfect hearing an infirmity which grew upon him year 
by year, until knowledge at one entrance seemed quite shut 
out. But he bore it patiently and heroically, and his books and 
his pen were an unfailing source of consolation and satisfaction. 

" Educated for several years at Yale, and admitted to the bar of 
Norfolk, with every acquisition to fit him for a distinguished ca- 
reer in the law and in public life, he was constrained to abandon 
it all and confine himself to his family, his friends and his library. 

"As a very young man, however hardly twenty-one he 
had a seat in the great Constitutional Convention of Virginia in 
1829-30, and was associated with all the conspicuous men of that 
period. Meantime, he was studying the characters and careers 
of the great Virginians of earlier periods, not a few of whom were 
still living. His ' Discourse on the Virginia Convention of 1776,' 
extended in print to a volume of more than two hundred pages, 
with its elaborate notes and appendix, is indeed as perfect a sum- 
mary of the history of some of the great men of his native 
State Jefferson and Madison and Patrick Henry and George 
Mason and others as can easily be found ; while his discourses on 
the men with whom he was associated in the Convention of 1830, 
and on Littleton Waller Tazewell, the Senator and Governor 
and eminent lawyer of Virginia, are worthy supplements to that 



HUGH BLAIR GRIGSBY. XXV 

which had preceded them. Many other publications, both in 
prose and verse, have manifested the fertility of his mind and the 
extent of his culture and research, while his letters alone would 
have occupied more than the leisure of any common man. 

"Meantime, he was devoted to agricultural pursuits, planting 
and hoeing and ditching with his own hands, and prouder of his 
dike, his 'Julius Caesar Bridge," and his crops than of any other 
of his productions. His very last letter to me, dated not long 
before his illness, concludes by saying : ' My employments for 
the past two weeks have been the reading of Justin, Suetonius, 
Tom Moore's Diary, and the building of a rail zigzag fence, 
nearly a mile long, to keep my neighbors' cattle off my prem- 
ises.' In a previous paragraph he said that he had just promised 
an invalid friend, who was anxious on the subject, to call soon 
and read to him ' the admirable sermon of Paley on the Recog- 
nition of Friends in Another World.' That may, perchance, 
have been his last neighborly office before he was called to the 
verification and enjoyment, as we trust, of those Christian hopes 
and anticipations in which he ever delighted. 

" But I forbear from any further attempt to do justice, in this 
off-hand, extempore manner, to one of whom I would gladly 
have spoken with more deliberation and with greater fullness. 
He had promised to meet me and stand by my side at Yorktown 
next October, and I shall sorely miss his friendly counsel and 
assistance for that occasion should I be spared to take part in it. 
The son of a Presbyterian clergyman, he was to the last warmly 
attached to the faith and forms of the Church in which he was 
brought up. While tolerant toward all, ' The Westminster Con- 
fession ' and 'The Shorter Catechism' were his cherished man- 
uals of religion and theology." 

Continuing with warm words of acknowledgment of the merits 
and services of Dr. Palfrey, Mr. Winthrop offered, with resolu- 
tions in his memory and that of Mr. Hudson, the following : 

Resolved, That the Massachusetts Historical Society offer their sin- 
cere sympathy to the Historical Society of Virginia on the death of 
their distinguished and accomplished President, the Hon. HUGH BLAIR 
GRIGSBY, LL.D., whom we had long counted it a privilege to include 
among our own honorary members, and for whom we entertained the 
highest regard and respect; and that the Secretary communicate a copy 
of this resolution to our sister Society of Virginia. 



XXVI BIOGRAPHICAL SKETCH OF 

m 

At a Convocation of the Board of Visitors and Governors 
of the College of William and Mary, held the 8th of July, 
1 88 1, the following preamble and resolutions were unanimously 
adopted : 

" Since the last meeting of the Board of the College, its officers and 
friends have been afflicted by the removal from their midst of HUGH 
BLAIR GRIGSBY, LL.D., Chancellor of the College of William and Mary. 
In the death of this noble man, the Board, the College, and the com- 
munity at large have sustained an irreparable loss. A man of the 
highest character, the most uncommon cultivation, with a mind to grasp 
the truth, and a he'art to love, defend and live it, he was among us a 
leader in everything true and noble, a guide in everything wise and 
judicious. His devotion to the College and its interests was unvary- 
ing, and by his generous, self-sacrificing spirit, by his undying faith 
and enthusiastic anticipation of the final success and triumph of the 
College that was so dear to him, he stood forth its champion in the 
darkest days and encouraged every fainting spirit to continue faithful 
in its support. The College and this Board owe him a debt of grati- 
tude which only a loving remembrance can but partially repay, and are 
moved to pass as their first official act at their annual meeting, the fol- 
lowing resolutions : 

"Resolved, That in the death of HUGH BLAIR GRIGSBY, we mourn 
the loss of a friend and fellow laborer, whose wisdom and lofty char- 
acter have reflected honor on our Board, and that we feel constrained 
to record on our minutes this tribute of admiration and affection to his 
memory, which in his life-time delicacy prevented us to do, and that 
through coming ages the friends of this College and of all sound edu- 
cation will reverently recall his memory, and on the tablets of the 
annals of William and Mary will forever be engraved the name of 
HUGH BLAIR GRIGSBY ' Clarum et venerable nomen? 

''Resolved, That we tender to the family of the widowed wife and 
orphaned children of our deceased friend our heartfelt sympathies for 
the loss of one who, so lovely to his friends, must have been to his own 
family unspeakably dear ; and we claim our share in the sorrow over 
his loss, as those who are proud to know that they were reckoned 
among his friends. 

"W. H. E. MORECOCK, 

"Secretary of the Board" 

The following is an extract from the report of Benjamin S. 
Ewell, LL.D., President of the College, to the Board of Visitors 
and Governors, made July 8th, 1881 : 

"The death of HUGH BLAIR GRIGSBY, LL.D., the Chancellor and 



HUGH BLAIR GRIGSBY. XXV11 

honored Visitor, on the 28th of April, 1881, has deprived the College, 
the Visitors and the Faculty, of a true and constant friend. 

" Mr. GRIGSBY'S connection with the College began in 1855, when he 
delivered an address at the commencement, received the degree of 
Doctor of Laws, and was elected Visitor and Governor. 

" He was elected Chancellor in 1871. k George Washington and John 
Tyler, Presidents of the United States, and HUGH BLAIR GRIGSBY are 
the only Americans who have held that office. From 1855 until the day 
of his death Mr. GRIGSBY was the earnest advocate of every measure 
tending to increase the efficiency, or promote the prosperity of the Col- 
lege. He was ever ready to espouse its cause with all his extraordi- 
nary powers of eloquence, logic and learning. With the exception 
of his kinsman, Dr. James Blair, the reverend and revered founder of 
the College, he was its most liberal private benefactor. 

" His affectionate friendship and loving kindness are familiar to you. 
They extended to Visitors, Faculty and students. To the latter he never 
failed to say words showing interest and giving encouragement. The 
Faculty mourn his loss as that of their dearest official, and personal 
friend." 

k Upon the nomination of General Henry A. Wise. 




THE HISTORY 



OF THE 



Virginia Federal Convention 

OK 1788. 



CHAPTER I. 

I have undertaken, at the request of the Historical Society of 
Virginia, to write the history of the Convention which began its 
sessions in the Public Buildings 1 in the town of Richmond on 
the second day of June, 1788, and which ratified, in the name and 
behalf of the good people of that Commonwealth, the present 

1 The Convention met the first day of its sittings in what was known 
as the Old Capitol, situated at the northwest corner of Gary and Four- 
teenth streets. It was a wooden building about fifty feet square and 
three stories high, with a sharply ridged roof. The Act of the Assem- 
bly for the removal of the Capital of the State from Williamsburg to 
Richmond was passed in May, 1779, and the " public buildings " known 
in later years as the "the Old Capitol," were erected in 1780 for the 
temporary use of the government until the permanent buildings, pro- 
vided for by an act passed the same year, could be completed. About 
1855, the old buildings, which had become much dilapidated and re- 
duced in height, were torn down, and upon its site and lots adjoining on 
Fourteenth street several fine stores, known as the Pearl Block, were 
erected by Mr. Hugh W. Fry, the corner of which was occupied by 
himself and sons under the firm name of Hugh W. Fry & Sons, Whole- 
sale Grocery and Commission Merchants. 



VIRGINIA CONVENTION OF 1788. 

Federal Constitution. 2 Our theme, both in its moral and politi- 
cal aspect, has a significancy which the present generation may 
well heed, and which posterity will delight to contemplate. But 
it receives an added grandeur at this moment when the people 
of Virginia, from the Potomac to the Roanoke, and from Ohio 
to the sea, have come hither on one of the most patriotic mis- 
sions recorded in our annals, and under the auspices of the legis- 
lative and executive departments of their government, and in 
the presence of many honorable and illustrious guests from dis- 
tant States, have, inaugurated, with the peaceful pageantry of war, 
with the mystic rites of Masonry, with eloquence and song, and 
with the august sanctions of our common Christianity, a lasting 
and stately monument 3 which, with the eternal voice of sculpture, 
proclaims now, and will proclaim to generations and ages to 
come, that Virginia holds, and will ever hold, the names and ser- 
vices of all her soldiers and statesmen who aided in achieving 
her independence, in grateful and affectionate veneration, and 
that the spirit which inspired the Revolution still burns with 
unabated fervor in the breasts of her children. 

To trace those discussions of the great principles which under- 
lie the social compact, to observe the modifications of those 
maxims which human wisdom in a wide survey of the rights, 
interests and passions of men had solemnly set apart for the 
guidance of human affairs, and their application to the peculiar 
necessities of a people engaged in forming a Federal Union, is an 
important office, which assumes a deeper interest and a higher 
dignity when we reflect that those who were engaged on that 

2 A discourse delivered before the Virginia Historical Society in the 
Hall of the House of Delegates at Richmond, on the evening of Feb- 
ruary 23, 1858, and subsequently enlarged to the present History. 

3 The Washington Monument, inaugurated February 22d, 1858 ; sub- 
scriptions towards the erection of which were authorized by an Act of 
Assembly passed February 22d, 1817. The sum of $13,063 was collected, 
but it lay dormant until February 22d, 1828, when, by Act of Assem- 
bly, it was placed at interest. Thus it remained until 1848, when it had 
accumulated to $41,833 with the aid of a new grand subscription. On 
the 22d of February, the Virginia Historical Society stimulated the 
Legislature to augment the fund to $100,000 for the erection of the 
monument, the corner-stone of which was laid February 22d, 1850, in 
the presence of General Zachary Taylor, President of the United States, 
his Cabinet, and a host of other distinguished persons. 



VIRGINIA CONVENTION OF 1788. 3 

great occasion were our fathers, whose ashes repose in the soil 
beneath our feet, whose names we bear, whose blood yet flows 
in our veins, and whose glory is our richest inheritance. And 
the transaction is hardly less interesting from the contemplation 
of our fathers at such a conjunction to a minute survey of their 
lives and characters, of the stock from which they sprung, 
of their early education, of their training for the memorable 
events in which they were to engage, and of the general scope 
of their actions. 

The time has gone by when the materials adequate to a full 
elucidation of my theme could be gathered from the living voice, 
and but little can be gleaned from the periodical press of the 
day. The last survivor of the Convention died at the advanced 
age of ninety-nine, twelve years ago.* There is no file extant 
of the papers published in Richmond during the session of the 
body. The Journal of the Convention, which, as its delibera- 
tions were held mostly in committee of the whole, consists of 
few pages only, and a stenographic report of some of its debates, 
are its only existing records. With the exception of a memoir 
of Henry, which Virginia owes to the patriotism of an adopted 
son now no more, and which treats our subject in a cursory man- 
ner, there is no separate memoir of any one of the one hundred 
and seventy members who composed the House. 5 I am thrown 
altogether upon the sources of intelligence scattered through our 
whole literature, upon those letters, which, written by the actors 
when the contest was at the highest and instantly forgotten, have 
been saved in old repositories, and upon those recollections, 
gathered at various times during a quarter of a century past, 
from persons who were either members of the body, or were 

4 James Johnson, one of the delegates from Isle of Wight, died at his 
residence in that county August i6th, 1845, having survived the adjourn- 
ment more than fifty-seven years. 

5 Of the younger members of the body who have lived in our times, 
Chief Justice Marshall has been commemorated in an admirable eulo- 
gium by Mr. Binney, and by Judge Story in the National Portrait Gal- 
lery. His Memoir by Mr. Flanders, in the Lives of the Chief Justices ^ 
has appeared since the above paragraph was written, as well as the full 
and most valuable life of Madison by Mr. Rives. To these may be added 
the chaste and eloquent oration of William Henry Rawle, LL.D. at the un- 
veiling of the statue of Marshall at Washington, D. C., May 10, 1884, and 
the Memoir by A. B. Magruder in "The American Statesmen Series." 



4 VIRGINI4 CONVENTION OF 1788. 

present at its deliberations, or who knew the members at a sub- 
sequent period, and which were made with no view to ulterior use. 
There is not living a single person who was a spectator of the 
scene. A boy of fifteen, who had seen Mason and Henry 6 walk- 
ing arm in arm from the Swan 7 or Pendleton, as, assisted by a 
friend, he descended the steps of the same inn to his phaeton, 
on their way to the Convention, would, if he were now living, 
have reached his eighty-filth year. The actors and the specta- 
tors, and those who spoke and those who heard, are buried in a 
common grave. 

Still I indulge the hope that it will not be found impracticable, 
out of the materials rescued from the wreck of the past, to 
present a picture which shall reflect in some faint degree not 
only the position Virginia then held among her sister States, 
ut the personal as well as the political relations which existed 
* 'tween the leading actors in the Convention, and are proper 
be known in order to appreciate the conduct of those who 
ore a conspicuous part in what we were taught from our in- 
incy to consider the most animated parliamentary tournament 
>f the eighteenth century, at least on this side of the Atlan- 
tic, anc in those animated contests which, during twenty-five 



6 I learned this incident from my friend John Henry, Esq., who, 
though cnly two years old at the death of his celebrated father, is now 
over sevt nty, and resides on the patrimonial estate, Red Hill ; and he 
heard it f 'om the Rev. Charles Clay, a member of the Convention from 
Bedford, who told him that George Mason was dressed in a full suit of 
black, and was remarkable for the urbanity and dignity with which he 
received and returned the courtesies of those who passed him. 

[John Henry, the youngest child of Patrick Henry that survived him, 
was born I4th February, 1796, and died yth January, 1868. He was 
educated at Hampden-Sidney and Washington colleges. He lived the 
life of a planter on the " Red Hill" estate, the last homestead of his 
father, which he inherited, and which has descended to his son, Hon. 
Wm. Wirt Henry. His memory was exceptionally good, and was well 
stored with information concerning his father, gathered from his con- 
temporaries, especially his mother, who lived till i4th February, 1831. 
Most of the information concerning Patrick Henry, contained in Howe's 
Historical Collections of Virginia, was furnished by him. ED.] 

7 A tavern famous in former years, a long wooden building base- 
ment, one story and attic, with wooden porch along its front, still stand- 
ing, divided into small rooms, about midway of the square on the north 
side of Broad, between Eighth and Ninth streets. 



VIRGINIA CONVENTION OF 1788. 5 

eventful days, never flagged, and on several occasions, and 
especially on the Mississippi debate, were wrought to a pitch of 
excitement which, whether we consider the actors or the sub- 
ject, was hardly exceeded by the most brilliant theatrical 
exhibitions. And I may venture to add that, since Death has 
set his seal on all the actors, and their whole lives are before 
us, if a more accurate and faithful delineation of their motives 
and actions, of their persons even of their dress, manners, and 
attainments than could have been possessed by the bulk of their 
contemporaries, separated by miles of forest from one another, 
at a time when there was not in the State a mail-coach, a post, 
or a press worthy of the name, and when there could be but 
little personal communion between individuals, be not fairly 
placed before the present generation, it will be owing somewhat 
indeed to the difficulties of the theme itself, but more to the inca- 
pacity or negligence of the historian who attempts to record it. 
Since the adjournment of the Convention, seventy years have 
nearly elapsed ; and in that interval two entire generations have 
been born, lived, and passed away. Nor has the change been felt 
in human life alone. This populous city, which now surrounds 
us with its laboratories of the arts, with its miles of railways and 
canals, with its immense basin and capacious docks, with its 
river bristling with masts and alive with those gay steamers that 
skirt our streams as well as those dark and statelier ones that 
assail the sea, with its riches collected from every clime, with its 
superb dwellings, with its structures reared to education, litera- 
ture, and religion, with those electric wires which hold it in in 
stantaneous rapport with Boston and New Orleans places which, 
at the time of the Convention, could only be reached by weeks 
and even months of tedious travel and which are destined to 
connect it, ere another lustrum be past, with London and Paris, 
with St. Petersburg and Vienna, and with its numerous lamps 
which diffuse, at the setting of the sun, a splendor compared 
with which the lights kindled by our fathers in honor of Sara- 
toga and York, or of Bridgewater and New Orleans, would be 
faint and dim, was a straggling hamlet, its humble tenements 
scattered over the sister hills, and its muddy and ungraded streets 
trenched upon by the shadows of an unbroken forest. 8 This 

8 Morse describes Richmond in 1789, one year later, as having three 
hundred houses. 



6 VIRGINIA CONVENTION OF 1788. 

venerable building in which we are now assembled, which was 
originally modelled after one of the most graceful temples of the 
Old World, and which overlooks one of the loveliest landscapes 
of the New, was yet unfinished ; and the marble image of Wash- 
ington, which for more than two thirds of a century has guarded 
its portals, which has been recently invested with a new immor- 
tality by the genius of Hubard, 9 and which, we fondly hope, will 

9 William James Hubard (pronounced H^-bard), the son of an artist 
of ability, was born in Warwick, England, August 2oth, 1807. He early 
exhibited a proclivity for art. and "pursued his studies in France, Ger- 
many, and Italy." 

There is evidence of the progress made by him in a testimonial pre- 
served by his family a silver palette which bears the inscription : 
"Awarded to Master James Hubard by the admirers of his genius in 
the city of Glasgow, Scotland. February 14, 1824." 

He came to America in this year, and was for some time a resident 
of Philadelphia. Later he made Virginia his home, marrying, in 1838, 
Miss Maria Mason Tabb, of Gloucester county, a lady of means and a 
member of an influential family. In the same year he revisited Europe, 
returning after an absence of more than three years to Virginia, and 
settling finally in Richmond. His art life was an active one, as is 
evinced in numerous works from his easel original conceptions, por- 
traits, and copies from the masters all marked by his characteristic 
boldness and beauty of color. A little while before the period of the 
text (1856), he fixed his residence in the western suburbs of Richmond, 
near that of an erratic brother artist, Edward Peticolas. This last 
building, coming into his possession upon the death of his friend, he 
converted into a foundry, specially for the reproduction in bronze of 
Houdon's matchless Washington which graces the rotunda of our Capi- 
tol. There were six of these admirable casts each a single piece of 
metal an accomplishment not often attempted. Of these, one is at 
the Virginia Military Institute, Lexington, two in North Carolina one 
at Raleigh and the other at Charlotte a fourth in Central Park, New 
York city, a fifth in St. Louis, Missouri, and a sixth in the grounds of 
the University of Missouri at Columbia Early in the late war between 
the States, Hubard converted part of his studio into a laboratory and 
engaged in the filling of shrapnel shells with a compound of his own 
invention. These shells, it is said, served the famous Merrimac. Hu- 
bard's foundry is said also to have supplied light and powerful field 
pieces to many of the early artillery companies of the Confederate 
Army. 

On the morning of the i4th of February, 1862, whilst Hubard was 
engaged in filling a shell, a spark ignited the compound. The explo- 
sion inflicted fatal injuries, from which he died on the following day- 



VIRGINIA CONVENTION OF 1788. 7 

transmit to distant ages the life-like semblance of the great origi- 
nal, had indeed received the last touches of the chisel of Hou- 
don, but had not been lifted to its pedestal. Our territory, though 
not as large as it had been, was larger than it is now. Virginia 
had added to the Federal Government, four years before the 
meeting of the Convention, her northwestern lands, which now 
constitute several States of the Union ; 10 but still held the soil 
from the Atlantic to the Mississippi. For Kentucky, who, if not 
matre filia pulchrior, was worthy of the stock from which she 
sprung, though destined soon to leave her happy home, yet 
clung to the bosom of her mother. 11 

Hubard was a gifted man, and it was claimed would have attained greater 
distinction in modeling than in limning. An early work of his, exe- 
cuted at Florence, is said to have enthusiastically stirred the Sculptor 
Greenough an Indian chief, with his horse in full strain, to whom a 
flash of lightning reveals a precipice immediately before him. This 
conception Hubard afterwards committed to canvass. 

Nor was the pen of Hubard idle. He left in MS. a critical work on 
Art in America, and a novel, both of which were pronounced by com- 
petent critics productions of merit. They were unfortunately de- 
stroyed in the pillage of his residence April 3, 1865. Two children of 
Hubard survive Wm. James Hubard and Mrs. Eliza Gordon, wife of 
Rev. John James Lloyd, Abingdon, Va. The editor is indebted to Mrs. 
Lloyd, through the mediation of Mann S. Valentine, Esq., of Rich- 
mond, who was an intimate friend of the lamented Hubard, for the 
preceding details. Mr. Valentine includes in his numerous art posses- 
sions many of the best examples of Hubard's genius. 

10 Virginia made the cession in January, 1781, but "it was not 
finally completed and accepted until March, 1789." Curtis 's Hist. 
Con., I, 137. 

11 As the delegates from Kentucky played an important role in the 
Convention, it may be proper to state that the District, as it was then 
called, was divided into seven coiwities, which, with their delegates, are 
as follows : Bourbon : Henry Lee, Notlay Conn ; Fayette : Humphrey 
Marshall, John Fowler ; Jefferson : Robert Breckenridge, Rice Bul- 
lock ; Lincoln: John Logan, Henry Pawling; Madison: John Miller, 
Green Clay ; Nelson : Matthew Walton, John Steele; Mercer: Thomas 
Allen, Alexander Robertson. Mann Butler, in his history of Kentucky, 
has fallen into one or two errors in the names of the delegates, which 
he probably learned from hearsay. The above list is copied from the 
Journal. Kentucky, soon after the adjournment of the Convention, 
formed a constitution for herself, and was duly admitted as one of the 



8 VIRGINIA CONVENTION OF 1788. 

The population of the State demands a deliberate notice. In 
spite of the numbers that had perished from disease and expo- 
sure during the war, that had been abstracted by the British, 12 
that had sought the flat lands of Ohio, or that had married and 
settled abroad, it had, since that great day on which the people 
of Virginia, in convention assembled, had declared their inde- 
pendence of the British Crown, been steadily advancing, arid 
from five hundred and sixty thousand at the date of the August 
Convention of 1774, had now reached over eight hundred thou- 
sand. Of this number, five hundred and three thousand two 
hundred and forty -eight were whites, twelve thousand eight hun- 
dred and eighty were free colored, and three hundred and five 
thousand two hundred and fifty-seven were slaves. 13 Her num- 
bers might well inspire the respect of her sisters and the pride 
of her sons, and sufficiently explain the position which she held 
in the Confederation. Her population was over three-fourths of 
all that of New England. It was not far from double that of 
Pennsylvania. It was not far from three times that of New 
York. It was over three-fourths of all the population of the 
Southern States. It exceeded by sixty thousand that of North 
Carolina and what was afterwards called Tennessee, of South 
Carolina, and of Georgia ; and it was more than a fifth of the 
population of the whole Union. 

But the topic which claims the most serious attention, not only 
of the general reader but of the political economists and of the 

States of the Union at the same time with Vermont one on the 9th, 
the other on the i8th of February, 1791. It is to the presence of the 
Kentucky delegation that we owe the exciting drama of the Mississippi 
debate. 

12 Mr. Jefferson estimated the number of negroes taken off in a single 
campaign at one-fifth of the entire black population of the State, and 
the seaboard suffered severely throughout the war. 

13 Professor Tucker, bringing the lights of the modern census to bear 
upon our Colonial population, estimates that of Virginia in 1774 to 
have been 500,000. (History U. S., I, 96.) The census of 1790 puts it 
down at 738,308, nearly sixty-two thousand less than the number stated 
in trie text, which, from a careful examination made some years ago, I 
believe to be the true one. Indeed, the extent of Virginia at that 
period, which reached from the Atlantic to the Mississippi, the unset- 
tled state of the country, the scattered population, made the taking of 
a correct census impossible. 



VIRGINIA CONVENTION OF 1788. 9 

statesmen, and in comparison with which the questions of the 
extent of our territory and the number of the population appear 
almost unimportant, is the condition of the commerce of Virginia 
when the Federal Constitution was presented for ratification. It 
was under her own control. Her trade was free ; the duties levied 
upon foreign commerce were laid by herself, and were collected 
by her officers. She had her own custom houses, her own ma- 
rine hospitals, and herown revenue cutters bearing her own flag. 
Her imposts were light, because it was then deemed unwise to 
lay burdens upon trade, and partly from an apprehension not 
unfounded that a heavy duty laid upon a particular article of 
merchandise might direct the whole of an assorted cargo from 
her ports to the ports of a more liberal neighbor. 14 Yet the 
amount of duties collected for several years previous to the Con- 
vention constituted one of the largest items received into the 
treasury, and at the low rate of duty ranging from one to five 
per cent., represented an import trade of several millions. 

Or, to speak with greater precision, the net amount of money 
in round numbers received into the treasury of Virginia from 
customs accruing during the three-quarters of the year ending 
the 3ist of May, 1788, was sixty thousand pounds, which in our 
present currency are equivalent to two hundred thousand dol- 
lars. 15 The customs of the fourth quarter of the fiscal year, end- 
ing- the thirty-first of August, are not given ; and, as during that 
interval the customs on the cargoes brought back in return for 
the tobacco crop carried out in the spring were received, it prob- 
ably exceeded two-fold the product of either of the two preced- 
ing quarters ; but we will place it in common with the other 
quarters at sixty-six thousand dollars. This sum of two hundred 
and sixty-six thousand dollars would represent, under an aver- 
age tariff of five per centum, an import trade of over five mil- 
lions of dollars. And from the present value of money, five 
millions at that time would be nearly equal to ten millions at the 
present day. And farther, as credit then was comparatively 

M John Randolph used to allude to the tradition that duties laid by 
Virginia on certain articles, which were admitted free of duty into Mary- 
land, was the main cause of the rise of Baltimore. 

15 For the receipts from custom see the annual report of the Treas- 
urer in the Journals of the Senate and House of Delegates of each 
year from 1783 to 1788. 



10 VIRGINIA, CONVENTION OF 1788. 

unknown, the imports were almost wholly based upon exports, 
which must have reached five millions of dollars. 16 Thus the 
import and export trade of Virginia during the year ending the 
thirty-first of August, 1788, was, at the present value of money, 
not far from twenty millions of dollars ; an amount which it had 
never reached before, and which, with the exception hereinafter 
to be mentioned and explained, it has never reached since. 

But the average rate of the tariff of -1788, instead of being 
five per centum as above estimated, was in fact less than two and 
a half per centum ; 17 and the duties collected under it would, on 
the grounds already stated, represent a commerce of forty mil- 
lions of dollars. Enormous as this sum appears, it may be 
nearly reached by another process. The year 1769 was regarded 
an ordinary year, yet the imports of Virginia during that year are 
ascertained to have been over four millions and a quarter. 18 At 
that time our trade was almost wholly with Great Britain and 
possessions ; and our great and only staple which she would re- 
ceive was tobacco. In the interval of nineteen years, the popu- 
lation had from natural increase and immigration nearly doubled, 
and brisk trade in all the products of the soil and the forest was 
prosecuted with almost every foreign power. It is not unfair to 
presume that a laborer in 1788 was as successful as a laborer in 



16 A shrewd traveller, Captain J. F. D Smyth, of the British army, who 
visited Virginia just before the Revolution and was present during the 
war, states that Virginia then exported " at least one hundred thou- 
sand hogsheads of tobacco of about one thousand pounds each, of 
which between ten and fifteen thousand might be the produce of North 
Carolina.' 1 He adds that Virginia exported, ''besides Indian corn, 
provisions, skins, lumber, hemp, and some iron, large quantities of 
wheat and flour"; and he estimated the wheat at " five hundred thou- 
sand bushels," and the flour "at fifteen thousand barrels." Smyth's 
Tour in the United States, Vol. II, 140. In 1775, there were exported 
101,828,617 pounds of tobacco, 27,623,451 pounds remaining on hand 
in Great Britain, and 74,205,166 pounds in other countries of Europe. 
Tobacco Cttlture in the United States, Tenth Census, Vol. IV; *' Suc- 
cinct Account of Tobacco in Virginia 1607-1790," by R A. Brock, p. 
223. 

17 I handed the Tariff Acts of Virginia, in force in 1788, to a mercantile 
friend, with a request that he would furnish me with a correct average 
of all the duties, and he made it rather under than over two per cent. 

18 $4) 2 55) oo - Forrest 's History of Norfolk, 73. 



VIRGINIA CONVENTION OF 1788. 11 

1769, and that the imports and exports of 1788 must have nearly 
doubled what they were nineteen years before ; and they would 
thus reach over thirty millions of dollars. 

Indeed, the commercial prosperity of Virginia, from the date 
of the treaty of peace to the meeting of the Convention, was 
amazing. Her accessibility by sea at all seasons, her unequalled 
roadstead, the safe navigation of her bays and rivers, the extent, 
the convenience, and the security of her great seaport, the bulk, 
variety and value of her agricultural produce, invited the enter- 
prise of foreign capital. Many of the buildings of Norfolk had 
been burned at the beginning of the war by the British ; and those 
that remained had been burned by the order of the Committee of 
Safety or of the Convention ; and in that once flourishing town, 
whose pleasant dwellings and capacious warehouses attracted the 
attention of the European visitor, and whose rental in the year 
preceding their destruction amounted to fifty thousand dollars, 19 
not a building was allowed to remain. The whole population 
had been withdrawn and billeted upon families in the interior, 
whose claims for remuneration are strewed over our early Jour- 
nals. Even the wharves, which were made of pine logs, were 
destroyed by the burning of the houses that rested upon them. 

Nought was left of a scene once so fair but the land on which 
the town was built, and the noble river that laved its smoulder- 
ing ruins. But in less than eight years from the date of the con- 
flagration, and less than five from the date of the treaty of peace, 
new and more commodious houses, destined to be destroyed 
by another some vears later and to rise with renovated splendor, 
had risen, and warehouses ample enough to hold large cargoes 
had been erected. We had not many merchants of our own, 
for the habits and prejudices of the people were in another direc- 
tion ; but merchants from England, Scotland and Holland, and 
from the Northern States, well skilled in trade, sought our ports, 
settled themselves permanently among us, founded families which 
are still proud of the worth of their progenitors, and, it may be 

19 Forrest's History of Norfolk, 85. The burning of Norfolk by our 
own people was an act little short of madness. A population of six 
thousand men were thrown at once upon the interior to consume the 
provisions needful for the prosecution of the war; and Portsmouth, 
directly opposite, was as good a place for the military purposes of the 
enemy as Norfolk. 



12 VIRGINIA CONVENTION OF 1788. 

remarked, became, without exception, the most strenuous advo- 
cates of the adoption of the Federal Constitution. There were 
no banks in those days in Virginia, nor was there any public 
depository of coin, which was emptied on the upper floor of 
warehouses and tossed about with shovels and spades. 20 Ships 
of every nation filled our seaport. Their curious streamers, 
waving every Sabbath from the masthead and glittering in the 
sun, presented a scene that was long and keenly remembered by 
the inhabitants of Norfolk. An officer of the Revolution, who 
had served in the Southern army, and who visited Norfolk two 
years before the meeting of the present Convention, was struck 
at seeing ships not only crowded three or four deep at the wharves, 
but moored so thickly in the stream that a ferry boat passing 
from Norfolk to Portsmouth could advance only by cautiously 
working her zigzag course among them. Some of the ships at 
anchor awaited their chances to discharge and receive their car- 
goes at the wharves, while others preferred to discharge and re- 
ceive their freight in those vast and gloomy lighters, that may 
still be seen, freighted with fuel, entering or departing from the 
modern city. This observing traveller happened to be present 
on a gala day, when the ships were dressed, and when their 
salutes were heard through the town, and he was reminded of 
that brilliant spectacle exhibited at the departure of the British 
men-of-war and numerous transports with flags flying, with 
drums beating, and amid the roar of artillery, from the harbor of 
Charleston on the evacuation of that city by the enemy. 21 

This trade with foreign powers was strictly legitimate. We 
were at peace with all nations, and the leading States of Europe 
were at peace with themselves. It was not the result of political 
regulation or of distracted times. It was not the offspring of 
war between the carrying nations of the globe, and certain to 
terminate at the close of the war ; a species of trade which some 
years later fell to our lot, which involved us in fruitless negotia- 
tions, perplexed us with interminable controversies, led to the 
impressment of our sailors and to the sequestration of our ships, 
dishonored our flag in our own waters, and finally brought on a 



20 I heard this fact from a venerable merchant of Norfolk, who is yet 
living (1866) ; and who saw it in his childhood. 

21 Colonel Edward Carrington. 



VIRGINIA CONVENTION OF 1788. 13 

war with one of the belligerents. The trade enjoyed by our 
fathers was strictly legitimate. It was stimulated by no passion) 
it was not the offspring of cunning or favor. It was the result 
of common interests. It was the exchange of commodities be- 
tween nations who believed themselves benefited by the opera- 
tion ; and as it was the result of common interests, so it was 
likely to be lasting. Indeed, nothing short of war or political 
regulation could affect it. 

Nor was this trade wholly fed by the commodities of Virginia. 
The waters of the Chesapeake bore to our seaport not only the 
product of our own countries on its shores, but the products of 
Maryland and Pennsylvania. New England, New York, New 
Jersey, North Carolina, and South Carolina contributed their 
aid. And although no modern facilities for the transportation 
of produce from the interior then existed, our own exports ex- 
ceeded the anticipations of the merchants. The embarrassments 
which many planters had to encounter at the close of the war 
were numerous and severe. When they looked around on their 
once thrifty plantations, a scene of devastation met their eyes. 
Their fences had been burned by the British or by our own 
soldiers during a seven years' war. Most of their live stock had 
long disappeared. Their cattle had either been seized by our 
own commissaries to sustain the army in the field, and was paid 
for in worthless paper, or had been taken by the British and not 
paid for at all. A favorite measure, both of the Americans and 
the British, was to lay waste the country on the track which 
either might be required to pass. Not only were fences burned, 
fruit trees destroyed, houses demolished or sacked, but beasts, 
whether fit for use or not, were seized upon. The throats of 
young colts were cut by the British, lest from this source the 
cavalry of the Americans should thereafter be recruited. One- 
fifth of the black population had been carried off by the British 
or died on their hands ; and, in the face of the treaty of Paris, 
few or none were returned. Money might have lessened the 
troubles of the planters to a certain extent, and in a desolate 
country to a certain extent only, but money was not to be had. 
The country was as bankrupt as the citizen. Debt, like a cloud, 
rested alike over the State Government, over the Federal Gov- 
ernment, and over a great number of people. But, what sensi- 



14 VIRGINIA CONVENTION OF 1788. 

bly affected many persons, debts due the British merchants, some 
of which had been paid into the treasury under the sanction of 
an Act of Assembly, were now to be paid, and to be paid in 
coin. Hence some heads of families, which for more than a cen- 
tury had commanded respect, quitted their patrimonial hearths 
and sought, with sad hearts, new homes in the wilderness. 
Others sunk down broken-hearted, and left their members in 
hopeless penury. 

But, touching- as is frequently the fate of individuals in civil 
convulsions, nothing is more certain that an active, industrious, 
and free people cannot long remain in a forlorn condition. The 
population, as has already been observed, had, even amid the 
havoc of war, been steadily increasing ; and a population of eight 
hundred thousand, living upon fair lands and intent on retriev- 
ing bad fortune, cannot fail, in a space of time incredibly short 
in the eyes of superficial observers, to accomplish great and, to 
those who confound individual with general suffering, most un- 
expected results. 22 Thus it was that, in spite of innumerable 
obstacles to success, the country rapidly prospered. With each 
succeeding year the crops increased in quantity ; and in five years 
of peace our tobacco, grain, and other productions of the soil 
and the forest, maintained the grandest commerce that had ever 
spread its wings from an Anglo-Saxon settlement in the New 
World towards the shores of the Old, and such as was never 
seen in the Colony, and such as, with the exception of a short 
period, has never been seen in Virginia since. It is an instruc- 
tive fact, not unworthy the attention of the statesman as well as 
the political economist, that the period from the death of Charles 
the First in 1641 to the restoration of Charles the Second a 
space of nineteen years 23 and that the period between the peace 
of 1783 and the adoption of the Federal Constitution of 1788 
a space of five years have been the most prosperous in our 
history ; and that of the two centuries and a half of Virginia, 
it was during those two periods only she enjoyed the benefits of 

22 The doctrine of capital reproducing itself in a very short time was 
first distinctly shown by Dr. Chalmers. Lord Brougham availed him- 
self of the doctrine without stating the source from which he obtained it. 

23 Campbells History of Virginia, edition of 1860, p. 242. 



VIRGINIA CONVENTION OF 1788. 15 

a trade regulated by her own authority, unrestricted and un- 
taxed. 2 * 

It is our duty to record the mistakes of our fathers as well as 
those deeds which justly entitle them to our respect and venera- 
tion. And in no instance did they commit a greater error than 
in the false estimate which the leading advocates of the Federal 
Constitution had formed of the general condition and .of the 
commerce of Virginia, when the Federal Constitution was pre- 
sented for adoption. There were, indeed, grave and grievous 
embarrassments in our domestic and in our Federal relations that 
were calculated to excite apprehension in the breasts of our calmest 
and wisest men. But these embarrassments had been brought 
about in a period of revolution, when all trade was suspended, 
and were the result of causes which had ceased to operate, and 
which could never recur. They were the effect of time and cir- 
cumstances, and were likely to be relieved by the removal of the 
causes which produced them. An old and established nation, 
emerging from a long and disastrous war waged within its terri- 
tory, must be viewed in a very different light from the same 
nation in a long period of peace, when its resources were devel- 
oped and the arts cultivated under favorable auspices. But 
more especially does this observation apply to a purely agricul- 
tural people, occupying a wide territory, and harassed during 
eight years by a powerful enemy, when for the first time they 
take their position in the family of nations. And in the over- 
sight of this palpable truth may be traced an error of our fathers, 
the effects of which we feel to this day, and will continue to feel 
for generations to come. The wonderful increase of our popu- 
lation they had not the means of knowing, and did not know ; 
for up to that period of the eighteenth century no census had 



24 1 have sought in the Norfolk Custom House in vain for the full sta- 
tistics of the trade and commerce of Virginia with our own and foreign 
States during the interval between 1783 and 1790. The books were 
probably handed over to the new Government, and have been destroyed 
in the lapse of time as rubbish. Doubtless full reports were made to 
the treasury department in Richmond, and there may be found in some 
obscure place in the Capitol. If a committee were appointed by the 
Assembly to examine the public papers now on file, and publish in a 
cheap form the valuable ones amongst them, the full history of that 
period may yet be written. 



16 VIRGINIA^ CONVENTION OF 1788. 

been taken ; nor had the custom then been introduced of calling 
upon the treasurer and the auditor for approximating statements 
of the population of the State. One of the most eloquent friends 
of the Constitution, who had served in Congress, and who at the 
time held a high office in the Commonwealth, made a mistake of 
212,000 in his estimate of the people of Virginia ; or, supposing 
he had excluded the seven Kentucky counties, which were as 
much a part of Virginia as Accomac and Henrico, and are enu- 
merated as such in the census of 1790, and which he did not 
exclude, his mistake would still underrate the population more 
than 129,000, or more than one-fifth of the whole number. And 
when the trade and business of the country were represented in 
Convention as sunk to the lowest ebb, one of the opponents of 
the Constitution could only affirm that several American vessels 
had recently doubled the Cape of Good Hope. 

But there were signs of prosperity obvious to the most care- 
less observer The increased production of agriculture, the 
immense quantities of lumber which employed a heavy tonnage, 
the vast commerce which filled our ports and rivers, and which 
was growing with every year, could hardly fail to attract obser- 
vation The imposing picture of a single seaport of Virginia, 
which had in the space of four years risen from ashes to a promi- 
nence which it had not attained during a century and a half of 
colonial rule, was a living witness of developed wealth, of suc- 
cessful enterprise, and of good government, and afforded a cheer- 
ful omen of the future. Such indications of prosperity, if not 
unheeded, were wrongly interpreted. Eminent statesmen, for- 
getting what a short time before was the condition of a country 
in which nearly all regular agricultural labor had for a series of 
years been suspended, which was girt by independent States, 
whose interests, if not positively hostile, were, as must always be 
the case with independent powers not identical with its own, and 
which was called for the first time to arrange and settle a gen- 
eral policy of trade and business with commodities beyond its 
borders, were annoyed and perplexed by a state of things that 
frequently exists in the oldest country, that time and experience 
would insensibly adjust, and which domestic legislation might at 
any moment remove. It is one of the pregnant lessons of his- 
tory, that public men on the stage often overlook or slight in 
great emergencies the salient facts of their generation, and in the 



VIRGINIA CONVENTION OF 1788. 17 

haste of the hour take refuge from pressing" difficulties in a sys- 
tem of measures which seem plausible at the time, which offer 
the chances of a favorable change, and which posterity is left to 
deplore. Overawed by those outward aspects of affairs which 
assail the common eye, they do not reflect that the common eye, 
even if it saw clearly, sees but a small part of a great empire ; 
that what it does see it sees often through a distorted medium, 
and that it can embrace, at the farthest, only a few, and those 
lying on the surface of those innumerable elements which com- 
pose the prosperity of a Commonwealth. No people rising sud- 
denly from a state of control which their fathers and themselves 
had endured for almost two centuries into a new complicated 
sphere, and capable of taking the full measure of their own 
stature, or the true dimensions of their own era. Of all the 
sciences which act on the business of life, the science of politi- 
cal economy was least studied by the statesmen of that age. 
Every question of law and politics relating to men and communi- 
ties, every question that pertained directly to the rights of per- 
son and property, had been critically studied by our fathers, and 
were discussed with an ability that made the dialectics of the 
Revolution as distinctive as the wisdom which declared inde- 
pendence, or the valor which achieved it. But the problems of 
political economy had never engaged their deliberate attention. 
That science had but recently taken its separate station in Eng- 
lish literature, for the Wealth of Nations was its text-book, and 
Adam Smith had not published the Wealth of Nations three 
years before the meeting of the first Congress. Nor were the 
doctrines of the new science readily received. Practical men, 
then as now, viewed them with disgust, and some of the British 
politicians of that day never read them at all. If, many years 
later, when its theories were expounded in Parliament and from 
the chairs of the schools, Charles James Fox was not ashamed 
to say that he had never read the Wealth of Nations, it is no 
reflection upon our fathers that they had not studied a science 
which they had no opportunity of knowing, and which had a 
slight bearing only on colonial legislation. But the science of 
political economy is only the philosophy drawn from the expe- 
rience of men in their commercial relations with one another ; 
and with some of those relations our fathers had an intimate ac- 
quaintance. It is creditable to Virginia that, though some of 



18 VIRGINIA CONVENTION OF 1788. 

her famed sons did not comprehend or disregarded the teachings 
of the new science, others who had for a quarter of a century, in 
peace and war, mainly guided her destinies, had read them wisely. 
The unfortunate delusion in respect of the commerce of Vir- 
ginia, which then prevailed, led to disastrous results. It kept 
alive in our early councils those dissensions which existed before 
the war began, which raged fiercely during its continuance, 
which, coming down to our own times, had nearly kindled the 
flames of civil war, but which otherwise might have ended with 
the eighteenth century. It led, in the vain hope of sudden im- 
provement, to the hasty adoption of the present Federal Consti- 
tution without previous amendments, and to the surrender of the 
right of regulating its commerce by the greatest State of the 
Confederation to an authority beyond its control. It led to a 
state of things of which our fathers did not dream, and which, 
if they could behold, would make them turn in their graves. It 
destroyed our direct trade with foreign powers. It banished the 
flag of Virginia from the seas. Instead of building and manning 
the ships which carried the product of our labor to foreign ports, 
and which brought back the product of the labor of others to 
our own ports, as some were persuaded to believe would be the 
result of the change, it compelled us thenceforth to commit our 
produce to the ships of other States, and to receive our foreign 
supplies through other ports than our own. It brought about 
the strange result that, instead of a large part of the cost of de- 
fraying the expenses of the Government of Virginia being de- 
rived from the duties levied upon foreign commerce, those duties, 
though levied upon a scale unknown in that age, 20 will not suffice, 
in this sixty-ninth year of the new system, to pay the expenses 
of collection by other hands than our own. 

It is due to the memory of our fathers to inquire, and it is the 
province of history to record, how far such a result could have 
been foreseen at the time ; for the decision of the question has 
no unimportant bearing upon the reputation of the men who up- 
held or opposed the system from which such a revolution was 

25 In a manuscript letter of Edmund Pendleton, dated December 4, 
1792, in my possession, that illustrious jurist says: "Five per cent, 
seemed to have been fixed on. as a standard of moderation, by the 
general consent of America." This entire letter is devoted to the sub- 
ject of the tariff. 



VIRGINIA CONVENTION OF 1788. 19 

destined to proceed ; and we fitly pause in our narrative to say 
a few words on the subject. It is singular that, when the Fede- 
ral Constitution was presented for their consideration, our fathers 
had already been more familiar with the theory of Federal sys- 
tems than any public men of that generation. Of the ablest 
men, who, more than ten years before, either aided in framing 
the Articles of Confederation in Congress, who discussed them 
in the General Assembly, who ratified them in behalf of Vir- 
ginia in Congress, and who watched their operation in Congress 
and in the Assembly, nearly all were then living. One of them, 
whose immortal name is appended to those Articles, had pub- 
lished his opinions on the new system. 26 Several members of 
Congress were members of the present Convention. When 
those Articles were maturing in Congress, and were afterwards 
discussed in the General Assembly, the distinctive merits of the 
Federal schemes recorded in history were freely canvassed. It 
was soon seen that history, in its long roll of nations which have 
coalesced from motives of gain, ambition, or self-defense, afforded 
no model of a Federal alliance which was suited to the existing 
emergency, and that the problem was to be solved for the occa- 
sion. It was only from general reasoning, drawn from the nature 
of independent States, that our fathers could arrive at their con- 
clusions. And that reasoning was this : The right to regulate 
the^trade and commerce of a State is, in fact, the right to con- 
trol its industry, to direct its labor, and to wield its capital at 
will. It was one of those exclusive rights of sovereignty that 
are inseparable from its being, and that no State can commit to 
the discretion of another ; for no State whose industry is con- 
trolled by another, can be said to be free. To raise what pro- 
ducts we please, to send them, in our own way, to those who are 
willing to take them, and to receive in exchange such commodi- 
ties as we please, and those commodities to be free from all bur- 
dens, except such as we choose to put upon them, is a right 
which no people should voluntarily relinquish, and which no 
people ever relinquished but to a conquerer. A small State may, 
indeed, coalesce with a larger, and on certain conditions may 

26 Letter of R. H. Lee to Governor Randolph, Elliott's Debates, Vol. 
I, 502, edition of 1859 ; objections of George Mason, Ibid., 494; Edmund 
Randolph's letter to the Speaker of the Virginia House of Delegates, 
Ibid., 482. 



20 VIRGINIA. CONVENTION OF 1788. 

derive benefit from so intimate an alliance. The gain from an 
equal participation in the trade of the buyer, and a sense of se- 
curity from their united strength, may be deemed a fair equiva- 
lent for the risks which it runs. But it is plain that the benefits 
of such a coalition depend whblly on the good faith of the 
stronger party ; and the rights of the weaker are enjoyed by the 
courtesy of the stronger. To hold the most precious rights at 
the discretion of another was a dangerous experiment ; and ex- 
perience has shown that no such union has ever been voluntarily 
made. No confederacy, in ancient or in modern times, was ever 
formed on so intimate a union of its several parts, and the un- 
usual experience of mankind should seem to forbid it. 

But if it be dangerous for a small State to form so intimate^an 
alliance with a greater, it follows that it is equally dangerous for 
a large State to coalesce, not with a smaller, or a series of smaller 
ones, whose combined strength is inferior to its own. but with a 
series of States whose strength exceeds its own, whose voices 
can control the common counsels, and whose interests can apply 
the common resources at discretion. In such a case, the large 
State sinks its independent position, and has no more conclusive 
control of its own affairs than the humblest member of the asso- 
ciation. Hence, the record of civilized States affords no instance 
of such an alliance. Guided by these principles, our fathers 
determined to form a Federal alliance more intimate, indeed, than 
any which has come down to us, but to reserve a conclusive con- 
trol over the trade and the commerce of Virginia. They were 
willing to surrender the sword, but they retained the purse in 
their own keeping. 

Of all alliances between independent States in ancient or in 
modern times, the Articles of Confederation presented the fair- 
est model of a Federal system. It raised the admiration of 
Europe, strangely mingled with surprise. For a single province, 
or more provinces than one, to cast off allegiance to a distant 
power, was no uncommon incident in modern times. But to 
form a Federal alliance, which bestowed with a liberal hand upon 
the central executive all the powers which the general interests 
demanded, and yet guarded with consummate skill the integrity 
and independence of the component parts, was a brilliant achieve- 
ment. Its reception by the people was joyous. At a later 
period, when its workings had been observed more closely, the 



VIRGINIA CONVENTION OF 1788. 21 

Congress which it created but echoed the general voice in pro- 
nouncing it "a glorious compact." It was destined to a short 
life of eight years ; and its brightness has paled before the more 
dazzling scheme which succeeded it ; but it still remains the most 
perfect model of a confederation which the world has ever seen. 
The future historian will record its worth with becoming pride, 
and rescue the glory of its founders from the eclipse which the 
ambition and passions of men have combined to darken it. 

What heightened the admiration of the Federal system was the 
circumstances under which it was formed. It was at the darkest 
period of the Revolution. It was formed at a time when the 
greatest military and naval power which the world had ever seen 
was marshalling all its forces against a feeble country, and was 
pushing them forward with certain hopes of conquest; when 
some of the statesmen most active in the public councils, shrink- 
ing from the odds arrayed against them, were ready, it is alleged, 
to create a dictator in the State and a dictator in the Federal 
Government ; when the punishment of treason, denounced against 
our fathers by a king, whose predecessor and ancestor had, 
within the memory of men then on the stage, converted the 
fields of a kingdom, whose crown he inherited, into a blackened 
waste, and decimated a brave though rude population, was sus- 
pended over their heads ; and when every motive that could 
sway the bosoms of men, impelled the people of the revolted 
Colonies to form the strongest bulwark against the invading hosts. 
And it is one of the wonders of history that a State which would 
not surrender its purse in the midst of a crisis that invoked its 
existence, should, in a time of profound peace and of general 
prosperity, have consented to such a sacrifice. 

But the deed was done, and it is our duty to inquire whether 
the tendency of the Federal Constitution to produce such an effect 
on the commerce of the State as has since been apparent, could 
have been foreseen at the time of its adoption. A single glance 
will show that it contains no provision respecting one State more 
than another ; and that all the States stand on the same level. 
It is in its general scope that we must seek the cause of the com- 
mercial decline of this Commonwealth. Immemorial experience 
has shown that in every single and undivided political com- 
munity and such would be the States of the Union, so far as 
commerce is concerned, under the proposed Constitution there 



22 VIRGINIA. CONVENTION OF 1788. 

must be a controlling centre of trade, of business and of money. 
It might not have been safe to foretell the exact spot where that 
centre would be, but it was very easy to foretell where it would 
not be. It would not be in the ports of a people whose entire 
capital and labor were invested in agriculture, and who had not, 
during the period that elapsed from the settlement at James 
Town to the peace of 1783, built and manned a single merchant 
ship of three hundred tons. But let that centre be established 
anywhere, and the result would not be a matter of surprise but 
of mathematical qertainty. Its influence would be universal. It 
would extend to the remotest limits of the widest empire. It 
would be equally stringent in regulating a commercial transac- 
tion in the waters of the Bay of Fundy and at St. Mary's, which 
was then the southern boundary of the Union. No Southern 
merchant could build, equip, and load a ship, despatch her to a 
foreign port, and order her to return with an assorted cargo to 
a Virginia port, without being governed by the rates prevailing 
at the controlling centre of the capital and labor of the country. 
Bankruptcy, immediate and irretrievable, would certainly fol- 
low the neglect of such a precaution. It would be as wild to 
build, load, and sail a ship in opposition to the law of trade 
emanating from the central power, as it would be to attempt to 
place a planet in the skies irrespective of the law of gravitation. 
The consequence would ultimately be that the money centre 
would increase in population and resources with an accelerated 
rapidity, while those parts distant from the centre, probably in 
some proportion to their distance from that centre, and especially 
those which, engaged in agriculture, were less able to change the 
nature of their investments, must relatively decline. It is not 
contended that this central power is absolutely immovable; for, 
as it is not the creature of law, nor derives its power from ordinary 
legislation, it is possible to move it at any moment ; but it can 
only be removed by a kindred power greater than itself. We 
have no right to wonder that our fathers overlooked the obvious 
course of business and exchanges, when we see what has been 
done in our time by their descendants. Year after year we have 
denounced the Federal tariff as the cause of the commercial de- 
cline of the South, and one of the Southern States went so far 
in opposing it as to threaten a disruption of the Union. Yet it 
is plain, from what has been said, that the tariff, which, by the 



VIRGINIA CONVENTION OF 1788. 23 

way, acted on the navigation of the North precisely as it acted 
on the navigation of the South, however odious, as laying upon 
the South what was deemed a high and unequal tax, had no more 
effect on our navigation than it had on the rise and fall of the 
tides, or on the course of our winds. If the Federal revenue 
had been derived from direct taxation, or from the sales of the 
public lands ; if not a dollar from the origin of the Federal Gov- 
ernment to the present hour had been levied upon imports ; nay, 
further, if not a solitary slave had existed for the last seventy 
years in that vast realm stretching from the Potomac to the Rio 
Grande; the result complained of in the South would have been 
essentially the ^ame. The evil which the Southern States felt, 
and it is an existing evil, the effects of which on population, arts, 
and manufactures, are formidable, the acts of Congress did not 
cause, ,and the acts of Congress cannot cure. It follows, and 
must follow indefinitely, from the silent operation of that organic 
Federal bond which makes the people of the several States, so 
far as commerce is concerned, one people. It is in the various 
advantages resulting from the Federal compact, that we must 
seek a compensation for the loss of our direct trade with foreign 
powers. The problem which should engage the attention of 
Southern statesmen is not to seek a restoration of the state of 
things that existed, when seventy years ago the Federal Consti- 
tution was adopted, by a dissolution of the Union, an event which 
would not only fail from obvious considerations to effect the 
desired end, but would open a hundred new questions of peace 
and war more perplexing and more difficult of solution than the 
one which now annoys us ; but acknowledging at once the bind- 
ing obligation ol a law of trade, which the experience of seventy 
years has shown our inability to resist in the absence of the right 
to regulate our own commerce, and adapting ourselves to the 
new figure of the times, to ascertain the best means of making 
it available in the highest degree to the prosperity of the South- 
ern States. 27 

The basis of the Convention, a topic of so much strife in re- 
spect of the Conventions of our own times, did not much engage 
the attention of our fathers. It was the basis of the House of 
Delegates, which was then composed of two members from each 

27 It will be kept in mind that this was read before the Historical 
Society in February, 1858, and, I may add, written a year or two before. 



24 VIRGINIA ^CONVENTION OF 1788. 

of the eighty-four counties, of one member from the city of Wil- 
liamsburg, and of one member from the borough of Norfolk. 28 
Some time was to elapse before Richmond and Petersburg were 
to send delegates to the Assembly. Richmond, named by Byrd 
after that beautiful village which looks grandly down on the 
waters of the Thames, and which has been commemorated by 
the muse of Denham, was then known in public proceedings as 
Richmond To,vn, in order to distinguish it from the county of 
the same name. Since the organization of the State Govern- 
ment in 1776 a period of twelve years no less than twenty- 
eight counties had been formed ; and the naming of the new 
counties offered a graceful opportunity of honoring individual 
worth. 29 Posterity beholds in those names no uninstructive me- 

28 The curious eye will miss, with tender regret, the name of William 
and Mary College, which had sent delegates to the House of Burgesses 
for eighty-four years, but was disfranchised by the Convention of 1776. 
The delegates from this institution were always of the highest order of 
talents and moral worth. The amiable and excellent Blair represented 
the College in the Convention of 1776, its last representative. 

29 The names of the counties laid off in the interval between July, 
1776, and June, 1788, were Fluvanna, Rockingham, Rockbridge, Green- 
brier. Henry, Kentucky, Washington, Montgomery, Ohio, Yohoganey, 
Monongalia, Powhatan, Illinois, Jefferson, Fayette, Lincoln, Harrison, 
Greensville, Campbell, Nelson, Franklin, Randolph, Hardy, Bourbon, 
Russell, Mercer, Madison, and Pendleton. The reader may wish to 
know on which of the patriots of the Revolution the honor of having a 
county called by his name was conferred. Patrick Henry received that 
honor. He was the first Governor of the State, and the old Colonial 
rule of naming a county after the existing Governor was applied with 
peculiar propriety in his case. But, at the same session, the county of 
Fincastle was divided into Kentucky, Washington, and Montgomery, 
and the name of Fincastle dropped, as was also, at the same session, 
the name of Dunmore, and Shenandoah substituted in its stead. At 
the session of the Assembly immediately after the adjournment of the 
present Convention, a county was called after George Mason, and 
another after the gallant Woodford. Mason and Woodford counties 
were in the district of Kentucky, and were lost to us when the district 
became a State. So that at this time we have no county named after 
the author of the Declaration of Rights, and the General who gained 
the first victory of the Revolution. The present Mason county was laid 
off in 1804 the year after the death of Stevens Thomson Mason, a dis- 
tinguished patriot, long a member of both Houses of Assembly and of 
the Senate of the United States ; and, I have understood, was called in 
honor of his name. 



VIRGINIA CONVENTION OF 1788. 25 

morial of the estimation in which the originals were held by their 
contemporaries. Indeed, from such materials, one skilled in the 
anatomy of history, might, in the absence of other sources of 
intelligence, reconstruct no inaccurate record of that age. Not 
one of those names had hitherto received any such expression of 
the public regard ; for, up to this period, the name of no Vir- 
ginian had been given to a county ; and in the number and 
character of the new names, it is plainly seen that some remark- 
able public epoch had occurred. The history of Henry, Wash- 
ington, Jefferson, Harrison, Campbell, Nelson, Randolph, Hardy, 
Russell, Woodford, Mercer, Madison, and Pendleton, is the his- 
tory of their times. The names of Montgomery, Franklin, Lin- 
coln, and Greene, show that in the great event which had trans- 
pired, and which had called forth so many of our own citizens, 
we had received the succor of our sister States ; while the name 
of Fayette evokes the name of that chivalrous youth who, turn- 
ing his back on the endearments of domestic life and the fasci- 
nations of the gayest metropolis in Europe, hastened to share 
with our fathers the toils and dangers of war, who attained to 
the rank of Major- General in the armies of the United States, and 
held high command in our midst, and who won on the field of 
York his greenest laurel ; and the name of Bourbon renews the 
recollection of that beneficent but unfortunate prince, without 
whose assistance the war of the Revolution might have lasted 
thirty years, and whose fleets and armies aided in gaining, in our 
behalf, and within the limits of this Commonwealth, one of the 
most glorious of those innumerable battles in which the banner 
of St. Louis had, during many centuries, been borne in triumph. *~ 

Near the close of Sunday, the first day of June, 1788, Rich- / 
mond Town was in an unusual bustle. The day had been bright 
and warm, and was among the last days of a drought, which had 
killed nearly all the young tobacco plants in the hill uncovered 
by clods, and had filled the roads fetlock-deep with dust, but which 
fortunately made the rivers and creeks fordable on horseback. 
Indeed, a rainy spell at that time would have been a grave an- 
noyance. It would have detained half of the members of the 
Convention on the road. It might have decided the fate of the 
Federal' Constitution. A heavy rain at nightfall would have kept 
the member for Henrico, who lived on Church Hill, from taking 
his seat next morning in the old Capitol or in the new Academy. 



26 VIRGINIA.CONVENTION OF 1788. 

Bridges were then rare ; and a fresh rendered the clumsy ferry- 
boat of little avail. None of the appliances against the inclem- 
ency of the weather were then introduced. Oil skin and India 
rubber had not yet been heard of; even the umbrella, which now 
makes a part of the Sunday rigging of the negroes on the to- 
bacco estates of the Staunton and the Dan, was then unknown. 
Rumors had reached the State that sallow men, from the remote 
East, might be occasionally seen on the steps of the India House, 
or sauntering in Piccadilly, having in their hands a curious in- 
strument, which \yas used ordinarily as a cane, but which, when 
hoisted and held overhead, protected the body from the rays of 
the fiercest sun, and also from the rain, though it should descend 
in torrents. 

People in greater numbers than had ever been known before 
were coming into town from every quarter. Our modes of travel 
are widely different from what they then wert\ Not only were 
the can tl, the railway, and the steamer then unknown, but coaches 
were rarely seen. There were thousands of respectable men in 
the Commonwealth who had never seen any other four-wheeled 
vehicle than a wagon, and there were thousands who had never 
seen a wagon. Nothing shows more plainly the difference be- 
tween the past and the present than the modes of conveyance 
used then and now. To pass from Richmond to the Valley of 
Virginia in a carriage and pair was seldom attempted ; and, if 
attempted, was seldom successful. The roads, which, now wind- 
ing their way gradually around the hills and mountains, make a 
jaunt across the Alleghany safe and pleasant, then, when there 
were no roads at all, sought the top the nearest way. Thirty 
years later, it was rare that the lowlander, who drove in his 
coach to the mountains, brought back the same pair of horses 
with which he set out on his journey. One of the pair had made 
his final pause in Rockfish Gap, and had been exchanged for 
another at the next settlement. The bones of the other had 
been picked by the buzzards, which, circling low and drowsily 
above the road of the Warm Springs mountain, had watched 
with listless eyes their yet breathing prey. Now the traveller 
may pass into the interior from the mouth of the James more 
than three hundred miles in canal packets, or in capacious 
steamers, the tonnage of one of which exceeds the combined ton- 
nage of the fleets in which Columbus and John Smith made their 



VIRGINIA CONVENTION OF 1788. 27 

first voyage to the New World, and hardly miss the comforts 
and quiet of home. Then, and until forty years later, when the 
skill of Crozet had taught the waters of the James to flow peace- 
fully in trenches excavated by the pickaxe or blasted from the 
rock, the daring traveller who passed in a boat from the North 
river into the James, and thence through the Balcony Falls, was 
never tired of recounting the dangers which beset his course. 
The swiftness of the river was frightful ; the loudest screams of 
the boatman, who wielded the long oar at the helm, was lost 
amid the roar of the waters dashing against the rocks ; the roar 
of the waters smote the rugged sides of the cliffs that guarded 
the pass, and the sullen cliffs gave back the roar. It was Scylla 
and Charybdis, the whirlpool and the rock, in fearful juxtaposi- 
tion. Should the long and frail boat, flying with a rapidity un- 
known to steam or sail, and twisted by the torrent, deviate a few 
feet from a tortuous channel known only to the initiated, it was 
shipwrecked beyond the reach of human aid. At the time of 
which we are treating, there was not only no mail coach running 
west of Richmond, but no mail coach running to Richmond 
itself. The planter, his legs sheathed in wrappers, his spare 
clothes stowed in saddle-bags, and his cloak strapped behind his 
saddle, left his home on his own horse. 

Cavalcades of horsemen, to be traced from an elevated posi- 
tion by the clouds of dust that rose above them, were now seen 
along the highways leading into town. Just before sunset might 
have been observed from this hill 30 the approach of two men, 
whose names will be held in honor by generations to come. 
Though not personal enemies, they rarely thought alike on the 
greatest questions of that age, and they came aptly enough by 
different roads. One was seen advancing from the south side of 
the James, driving a plain and topless stick gig. He was tall, 
and seemed capable of enduring fatigue, but was bending for- 
ward as if worn with travel. His dress was the product of his 
own loom, and was covered with dust. He was to be the master- 
spirit of the Convention. The other approached from the north 
side of the river in an elegant vehicle then known as a phaeton, 81 

30 This was read in the hall of the House of Delegates in the Capitol. 

31 This phaeton Pendleton afterwards gave to his relative, the mother 
of Jaquelin P. Taylor, Esq., the treasurer of the Virginia Historical So- 
ciety, who distinctly remembers it. 



28 VIRGINIA,CONVENTION OF 1788. 

which was driven so slowly that its occupant was seen at a glance 
to be pressed by age or infirmity. He had been thrown some 
years before from his horse and had dislocated his hip, and was 
never afterwards able to stand or walk without assistance. His 
imposing stature, the elegance of his dress, the dignity of his 
mien, his venerable age, bespoke no ordinary man. He was 
called by a unanimous vote to preside in the body. Both of 
these eminent men had been long distinguished in the Colony 
and in the Commonwealth. Both had borne a prominent part on 
every great occasion since the session of the House of Burgesses 
of 1765. Both had been intimately connected with that memo- 
rable resolution which instructed the delegates of Virginia to 
propose independence. One had sustained that resolution with 
unrivaled eloquence on the floor ; the other had drawn it with 
his own hand. They met on the steps of the Swan and ex- 
changed salutations. Public expectation was at its height when 
it was known that Patrick Henry and Edmund Pendleton, who, 
for a quarter of a century, had been at the head of the two great 
parties of that day, were about to engage in another fierce con- 
flict in the councils of their country. 

The occasion might well inspire the deepest interest. For 
more than five years the amendment of the Articles of Confed- 
eration had engaged the public attention, but within two years 
then past it had become an engrossing topic. On the 2ist of 
January, 1786, Virginia, by a formal resolution of her Assembly, 
had invited a meeting of the States, which was ultimately held 
at Annapolis. 32 That body proposed the assembling of a Con- 
vention in Philadelphia on the second day of May, 1787. This 
resolution received the sanction of the Congress of the Confed- 
eration, and was pressed by that body on the attention of the 



32 For the resolution of Virginia inviting the meeting that was held 
at Annapolis, see the Appendix ; for the Journal of the meeting at that 
place, see Bioren's and Duane's edition U. S. Laws* I, 55; for the letter 
to the States sent forth by those who met, and originally prepared by 
Colonel Hamilton, see Elliot's Debates, V, 115; and for the resolution 
appointing delegates to the General Convention in Philadelphia, see 
Appendix. The resolution convoking the meeting at Annapolis, and 
the preamble and resolution appointing delegates to the Convention, 
was drawn by Mr. Madison. The preamble of the last deserves a care- 
ful perusal. 



VIRGINIA CONVENTION OF 1788. 29 

States ; but even before Congress had acted upon it, the General 
Assembly of this Commonwealth had complied with its object, 
and had appointed a delegation to the proposed Convention. 
The number and character of the delegates selected for the ser- 
vice demonstrated the importance of the movement ; and Vir- 
ginia, when she had confided her trust to George Washington, 
Patrick Henry, Edmund Randolph, John Blair, James Madison, 
George Mason, and George Wythe, calmly awaited the result of 
their labors. 83 

The General Convention of the United States did not form a 
quorum until the twenty-fourth day of May ; and, after a con- 
tinuous session of four months, adjourned on the seventeenth of 
September following. The Constitution, the work of its hands, 
was duly transmitted to Congress, and was recommended by that 
body to the consideration of the States. Its first publication in 
this State gave rise to various emotions. A dark cloud evidently 
rested above its cradle. Most of the officers and many of the 
soldiers of the Revolution, swayed by the opinions of Wash- 
ington, which were openly expressed in conversation, and in his 
letters, and charmed by the beautiful outline of a great polity 
presented by the instrument itself, received it with admiration 
and delight. But a formidable opposition was soon apparent 
from another quarter. The leading statesmen of Virginia, men 
who had sustained the resolutions of Henry against the Stamp 
Act, and his resolutions for embodying the militia, who had been 
eager for independence, and who had guided the public councils 
during the war and in the interval between the close of the war 
and the meeting of the General Convention, read the new plan 
with far different feelings. They saw, or thought that they saw, 
in its character and in its provisions, that the public liberties 
were seriously menaced, and that a war for independence was to 
be waged once more under most painful circumstances. Here- 
tofore the people had been united in the common cause; and 



33 Colonel Henry declined the appointment, and R. H. Lee was ap- 
pointed by the Governor in his stead ; but he declined, doubtless for the 
same reason which induced the Assembly to pass him by, which was 
that he was President of Congress, which would hold its sessions simul- 
taneously with those of the Convention. On Lee's declension, Dr. 
James McClurg was appointed, and took his seat at the beginning of 
the session. 



30 VIRGINIA, CONVENTION OF 1788. 

their union, in spite of many obstacles, had carried them success- 
fully through the late contest. But now one portion of the peo- 
ple was to be arrayed against another ; and the result of the new 
contest, whatever it might be, would be fraught with peril. The 
first general impression should seem to have been adverse to the 
new system. It had taken the people by surprise. It should be 
remembered that the deliberations of the General Convention 
had been secret, and, that if they had been public, the facilities by 
which we are now enabled to watch from its inception any meas- 
ure of public policy, did not then exist. The Constitution pro- 
posed an entirely new system of government, when the belief of 
the people was universal that the powers of the General Con- 
vention were limited to an amendment of the existing system to 
which they had become attached, and which they believed amply 
sufficient, with certain modifications, to attain the end of its cre- 
ation. They felt at the moment that resentment which springs 
from a sense of having been cajoled or deceived by those to 
whom we have confided an important trust. 34 Upon a nearer 
view, they were led to believe that the new Constitution was in 
opposition to the wishes of a majority of their representatives in 
Convention. It bore indeed the name most dear to the hearts of 
the people, but he may have signed it as an officer, and not as 



34 If the reader wishes to see how far these suspicions were founded, 
let him consult and compare the resolution appointing delegates to 
Annapolis ; the resolution of the General Assembly of the third of 
November, 1786, declaring that an act ought to pass to appoint dele- 
gates to the General Convention " with powers to devise such further 
provision as shall to them appear necessary to render the Constitution 
of the Federal Government adequate to the exigencies of the Union ; 
and to report such an act for that purpose to the United States in Con- 
gress assembled, as, when agreed to by them, and afterwards con- 
firmed by the legislatures of every State, will effectually provide for the 
same " ; and especially the resolution appointing the delegates to the 
Convention, which was drawn by Mr. Madison, under the instructions 
of the foregoing resolution, marking the substitution of the word 
" States " for legislatures ; and it will be seen that a strict and literal 
amendment of the old, and not the introduction of a new one, was in 
the view of the Assembly. From the state of parties in the House of 
Delegates when these resolutions were passed, it may be safely affirmed 
that not thirty votes could have been obtained for any other amend- 
ment than a specific one to pass through the forms required for an 
amendment to the Articles of Confederation. 



VIRGINIA CONVENTION OF 1788. 31 

an individual ; but with the exception of the names of Blair and 
Madison, it bore no other. Patrick Henry had declined his seat 
in the Convention ; but neither the name of McClurg, who suc- 
ceeded him, nor that of Mason, or Randolph, or Wythe were 
attached to its roll. If the absence of these names meant any 
thing, it meant that if the vote of Virginia could have controlled 
the question of the adoption of the Constitution by the Conven- 
tion which framed it, it would not have seen the light. It was 
the work then of a minority of the delegates of Virginia in Con- 
vention, and it had the hand of bastardy on its face. And it is 
certain that upon an immediate direct vote upon it by the peo- 
ple, it would have been rejected by an overwhelming majority. 
Fortunately, there was full time for the examination of the new 
system. From the adjournment of the General Convention to 
the time of the meeting of the Virginia Convention, which was 
called to discuss it, eight months would elapse ; and never were 
eight months spent in such animated disputation. Essays on 
the new scheme filled the papers of the day, but the papers of 
that day were small and had but a limited circulation ; and for 
the first time in our recent history, the pamphlet became a fre- 
quent engine of political warfare. Beside those essays which 
have come down to us in the garb of the Federalist, and which 
are still regarded with authority, there were others published 
throughout the States of equal popularity. The solemn protest 
of George Mason, the eloquent letter of Edmund Randolph, then 
Governor, to the Speaker of the House of Delegates, and the 
statesmanlike production of Richard Henry Lee addressed to 
the Governor, all demonstrating the defects of the proposed plan 
of government, were in every hand. 35 The bibliographer still 
points to the tracts of the period, bound in small volumes, as 
among the sybil relics of our early political literature. But how- 
ever great was the influence of the press, its influence was ex- 
ceeded by oral discussions. Public addresses were made at every 
gathering of the people. The court green, the race-course, and 



35 Though the people in the vicinity of towns and villages could get 
a glance at a paper, even prominent men in the interior were not 
reached by the press. Humphrey Marshall, from Kentucky, had trav- 
elled into the densely populated parts of Virginia on his way to the 
Convention, when he met with a number of the Federalist for the first 
time. 



32 VIRGINIA CONVENTION OF 1788. 

the muster-field, resounded with disputations. The pulpit as 
well as the rostrum uttered its voice,, and the saint and the sin- 
ner mingled in the fierce melee An incident which occurred in 
Halifax will serve to show the excitement of the times. A 
preacher on a Sunday morning had pronounced from the desk a 
fervent prayer for the adoption of the Federal Constitution ; but 
he had no sooner ended his prayer than a clever layman ascended 
the pulpit, invited the people to join a second time in the suppli- 
cation, and put forth an animated petition that the new scheme 
be rejected by the Convention about to assemble by an over- 
whelming majority. 37 

Great tact was shown by the friends of the new scheme in the 
selection of candidates. The honest country gentlemen whose 
fathers had been for years in the Assembly, and who had been 
ior years in the Assembly themselves, and who thought that they 
had a prescriptive title to public honors, were gently put aside, 
and the judge was taken from the bench, and the soldier, who 
was reposing beneath the laurels won in many a stricken field, 
was summoned from his farm to fill a seat in the approaching 
Convention. Such, indeed, was the zeal with which the elec- 
tions were pushed, that, for the first time in our history, personal 
enmities were overlooked, and ancient political feuds, which 
promised to descend for generations, were allowed to slumber. 
One gentleman, who, in the beginning of the war, had been sus- 
pected of dealing with the enemy, who had been arrested and 
held under heavy bonds in strict confinement, and had been 
escorted by a military guard into the interior of the State, was 
returned to the Convention, his friendship for the Constitution 



36 There was a passage at arms between the Rev. John Blair Smith, 
president of Hampden-Sydney College in Prince Edward county, and 
Patrick Henry, who represented that county in the Convention. Henry 
had inveighed with great severity against the Constitution, and was 
responded to by Dr. Smith, who pressed the question upon Henry, why 
he had not taken his seat in the Convention and lent his aid in making 
a good Constitution, instead of staying at home and abusing the work 
of his patriotic compeers? Henry, with that magical power of acting 
in which he excelled all his contemporaries, and which before a popu- 
lar assembly was irresistible, replied : " I SMELT A RAT." 

37 I could "name names," if necessary, but to do so might possibly 
be unpleasant to the descendants of the actors. 



VIRGINIA CONVENTION OF 1788. 33 

wiping out the sins of his earlier life. Another member, whose 
father had by a formal decree of one of the early Conventions 
been arrested, had also been placed under heavy bonds, and had 
been confined within certain limits, and who had himself spent 
the entire period of the Revolution abroad, expiated his guilt 
patrimonial and personal by his attachment to the new system, 
and took his seat by the side of men whose swords had hardly 
ceased to drip with the blood of the common foe. Whether we 
regard such results as flowing from high principles or from the 
impulse of eager passion, it is equally our duty to record them. 
Thus, when the time approached for the election of the members 
who were to decide the fate of the Constitution, there was not 
only an obvious line drawn between its friends and its enemies, 
but there were shrewd estimates of its ultimate fate. 

The assembling of the Convention attracted attention through- 
out the State and throughout the Union. _ Few of the citizens of 
Virginia had ever seen a Convention of the people. The Con- 
vention of August, 1774, sate in Williamsburg, and adjourned 
after a session of five days. The Conventions of March, of July, 
and of December, 1775, sate in Richmond ; but the Convention 
of March was in session but seven days, the Convention of July 
only thirty-nine days, and that of December fifty days ; and the 
Richmond of 1775 differed almost as much from the Richmond 
of 1778, small as it was at the latter period, as the Richmond of 
1788 differed from the Richmond of 1858. The Convention of 
1776 sate in Williamsburg, and, .as the sessions embraced sixty ' 
days, was together longer than any deliberative body in our pre- 
vious annals. Still, from the emergencies of war, from the uncer- 
tainty of the times, and from the sparseness of the population, 
those only who lived in the vicinity of Williamsburg and Rich- 
mond had then seen any of the prominent men of that generation. 
Henry was the best known of our public men. He had not only 
been Governor twice during the last twelve years, and occasion- 
ally a member of the Assembly, which he was ever the last to 
reach and the first to quit, but he had frequently been called to 
distant counties to defend culprits which no native talents were 
likely to screen from the law ; yet few of the men then on the 
stage had ever seen Henry. Pendleton, who, from his years, 
was more of a historical character than Henry, could for the last 
ten years be seen only in term time on the bench, or in his snug 



34 VIRGINIA CONVENTION OF 1788. 

room at the Swan, or in vacation on his estate in Caroline. 
Mason, though laborious on committees and in the House of 
Delegates, had a horror of long sessions, and would not be per- 
suaded to remain long beyond the smoke of "Gunston Hall." 
The person of Wythe was more familiar to persons from abroad ; 
for, since the removal of the seat of government from Williams- 
burg, he had taken up his abode in town, 88 and might be seen in 
his court or in his study, and not unfrequently of a bright frosty 
morning, in loose array, taking an air-bath in the porch of his 
humble residence ori Shockoe Hill. Now all these eminent men, 
and others who had grown into reputation during the war and 
since, were to be seen together. In every point of view the Con- 
vention was an imposing body. It presented as proud a galaxy 
of genius, worth, and public service as had ever shone in the 
councils of a single State. The rule of its selection had been 
without limit. The members were chosen without regard to the 
offices which they held, or to their pursuits in life. The judge, 
as was just observed, was called from the bench, and the soldier 
from his home ; while the merchant, the planter, the lawyer, the 
physician and the divine, made up the complement of its mem- 
bers. There was one feature conspicuous in the returns, and 
shows not only the fluctuation of the public mind at that impor- 
tant crisis, but the force of individual worth. Sharply drawn as 
were the lines of party, a county would send up one of its two 
members friendly to the Constitution, and the other opposed to it. 
As a type of the times, it may be noted that the successor of 
Henry in the General Convention which framed the Federal Con- 
stitution, was one of the most distinguished physicians of that age. 
The body was very large, and consisted, as already stated, of one 
hundred and seventy members, and exceeded by fifty two the 
number of the members who composed the Convention of 1776. 
It was more than four times greater than the Convention which 
formed the Federal Constitution when that body was full, and it 
exceeded it, as it ordinarily was, more than six times. It had a 
trait discernible in all the great Conventions of Virginia. It con- 
sisted of the public men of three generations. Some of the 

38 Judge Wythe's residence stood at the southeast corner of Grace 
and Fifth streets, on the spot where stands the residence erected by the 
late Abraham Warwick, and now owned and occupied by Major Legh 
R. Page. 



VIRGINIA CONVENTION OF 1788. 35 

eminent men who more than thirty years before had dared to 
assail the usurpations of Dinwiddie, and to dispatch to England 
to protest against the unconstitutional pistole tax levied by the 
Governor; 89 who, twenty-three years before, had voted on Henry's 
resolutions against the Stamp Act, and had voted thirteen years 
before on his resolutions for putting the Colony in a posture of 
defence, and had voted for the resolution proposing indepen- 
dence ; who had distinguished themselves in the Indian wars, 
and who had borne a prominent part on the military and civil 
theatre of the Revolution. 

Several of the members of that great committee, under whose 
wise guidance the country had passed from the Colony to the 
Commonwealth, with their illustrious chief at their head, were 
members of the body ; and sitting by their side was that re- 
markable man, more illustrious still, who, in a time of intense 
excitement, had been deemed their victim. 40 

The martial aspect of the Convention would alone have at- 
tracted observation. There was hardly a battlefield, from the 
Monongahela and the Kanawha to the plains of Abraham, from 
the Great Bridge to Monmouth, and from the bloody plains of 
Eutaw to York, that was not illuminated by the valor of some 
member then present. The names of Bland, Carrington of Hali- 
fax r Samuel Jordan Cabell, Clendenin, Darke, Fleming, Grayson, 
Innes, Lawson, Henry Lee of the Legion, known in the Con- 
vention as Lee of Westmoreland, in distinction from his name- 
sake and relative, Henry Lee of Bourbon, Matthews, who, when 

39 The conduct of the House of Burgesses on that occasion displayed 
great spirit. They sent Peyton Randolph, then Attorney-General, to 
England, who partly succeeded in his mission. His expenses were two 
thousand five hundred pounds, which were paid by a bill which the 
Governor refused to approve. The House of Burgesses then tacked 
the sum of two thousand five hundred pounds to the appropriation bill 
of twenty thousand pounds ; and the Governor sent back this bill also. 
The House then ordered the treasurer to pay the money; which he did. 
Journals House of Burgesses, Nov., 1753, and Sparks' Washington, II, 
59. Dinwiddie Papers, I, 44, et seq.\ II, 3, 57. 

40 After the adjournment of the Convention of 1776, Pendleton and 
Henry never met in a public body. Henry was elected Governor by 
that Convention ; and Pendleton, after a session or two in the House of 
Delegates, was placed on the bench, where he remained nearly a quar- 
ter of a century. Henry was often a member of the House of Dele- 
gates in the interval between 1776 and 1788. 



36 VIRGINIA CONVENTION OF 1788. 

'not engaged in the field, was a member of the House of Dele- 
gates, whose name is conspicuous in our early Journals as chair- 
man on Committee of the Whole and Speaker of the House, 
and is still borne by one of those beautiful counties that over- 
look our great inland sea, Mason, of Loudoun, Marshall, who had 
not attained the age of thirty- three", and little dreamed that in a 
few short years he was to represent the young empire at the 
most renowned court in Europe, and to preside, for an entire 
generation, in the judiciary of the new system which he was 
about to sustain, Monroe, the junior of Marshall by three years, 
his playmate at school, his colleague in camp and in college, and 
destined to fill the highest offices, at home and abroad, of the 
new system which he was about to oppose, McKee, Moore of 
Rockbridge, George and Wilson Gary Nicholas, Read, Riddick, 
Steele, Adam Stephen, Stuart of Augusta, Stuart of Greenbrier, 
Zane, and others, recall alike our hardest contest with the In- 
dians and the British. Well might Henry and George Mason 
view that brilliant phalanx with doubt and fear. 41 Pendleton, the 
President of the Court of Appeals, and Wythe, a chancellor and a 
member of the same court, who had been pitted against each other 
in the Senate and in the forum throughout their political lives, and 
were now to act in unison, were not the only representatives of 
the judiciary. 4 ' 2 Bullitt had not taken his seat on the bench ; but 



41 A large majority of the officers of the army of the Revolution were 
in favor of the new Constitution. The Cincinnati were mostly among 
its warmest advocates ; and as they were organized and were, many of 
them, of exalted private and public worth, and could act in concert 
through all the States, their influence was foreseen and feared by its 
opponents. Mason and Gerry often alluded to that influence in their 
speeches in the General Convention (Madison Papers, II, 1208; Elliot's 
Debates, V, 368) ; and although Judge Marshall affirms that " in Vir- 
ginia certainly a large number, perhaps a majority, of the Cincinnati 
were opposed to it" (meaning the administration of Washington), 
(II, Appendix 31, second edition) ; yet when he enumerated the various 
classes who favored a change in the Articles of Confederation, he says, 
"the officers of the army threw themselves almost universally in the 
same scale." Life of Washington, II, 77. In the present Convention 
there were several who were opposed to the Constitution. 

42 These two venerable men, with George Mason and Patrick Henry, 
were those first sought by the spectator, as in a convention, forty years 
later, were Madison, Monroe, Marshall, and Fayette. If the reader 
wishes to know the constitution of the courts in 1787, let him turn to 
Mr. Minor's edition of Wythe 's Reports, page 20 of the memoir. 



VIRGINIA CONVENTION OF 1788. 37 

Blair, Gary of Warwick, Carrington of Charlotte, Jones, and 
Tyler, were members of the body. Some of the prominent mem- 
bers of Congress were present. Harrison, Henry and Pendleton 
stood up in the Carpenters' Hall, when the eloquent Duch&, then 
firm in his country's cause, had invoked the guidance of Heaven 
in the deliberations of the first Congress ; while Grayson, Henry 
Lee of the Legion, Madison, Monroe, Edmund Randolph, and 
Wythe, had been or were then in the councils of the Union. The 
Attorney- General of the Commonwealth, the eloquent and ac- 
complished Innes, and the Governor, were included in that dis- 
tinguished group. 

Yet the eye of the aged spectator, as it ranged along those 
rows of heads, missed some familiar faces, which, until now, had 
been seen on nearly all the great civil occasions of a third of the 
century then past. The venerable Richard Bland, the unerring 
oracle, whose responses had, for more than thirty years, been 
eagerly sought and rarely made in vain, and whose tall form 
had been so long conspicuous in the House of Burgesses and in 
all the previous 'Conventions, had fallen dead in the street in Wil- 
liamsburg, twelve years before, while attending the session of the 
first House of Delegates, and when, as chairman of the commit- 
tee, he was about to report that memorable bill, drawn by Jeffer- 
son', abolishing entails. Benjamin Watkins, of Chesterfield, in 
whose character were united in noble proportions the firmness of 
the patriot, the charity of the philanthropist, and the wisdom of 
the^sage, and his name, revived in the Convention that rnqt near 
half a century after his death to revise the Constitution, which he 
assisted in framing, was invested with fresh and imperishable 
praise, had died three years before. 43 The absence of the old 
Treasurer, Robert Carter Nicholas, that grave and venerated 
face, which had been seen for forty years in the House of Bur- 
gesses, and in all the Conventions, in one of which he presided, 
and whose presence gave to the general heart a sense of safety, 
was now observed for the first time in our great assemblies. He 
had died, when the storm of the Revolution raged fiercest, at his 



43 He was the maternal grandfather of Benjamin Watkins Leigh and 
Judge William Leigh, who were members of the Convention of 1829-30. 
For further details of Mr. Watkins, consult the Watkins' genealogy, by 
Francis N. Watkins, Esq., page 46. 



38 VIRGINIA CONVENTION OF 1788. 

villa in Hanover, and his corpse, borne by his weeping neigh- 
bors, had been laid in its humble grave. Archibald Gary, too, 
was gone. He had been intimately connected for the third of a 
century with very great measures of our colonial policy, had, as 
chairman of the Committee of the Whole, reported to the Con- 
vention of 1776 the resolution instructing our delegates in Con- 
gress to propose independence, and had been at the head of the 
committee which reported the Declaration of Rights and the 
Constitution. His unconquerable spirit was an element of force 
in every body of , which he was a member. Two years had 
barely elapsed since his stalwart form had been committed to the 
grave, at Ampthill. 44 He had lived to behold the triumph of his 
country, and to preside, until his death, in the Senate under that 
Constitution at whose baptism he had been the fearless and cor- 
dial sponsor. 45 The person of another still more beloved was 
wanting. On him the honors of every deliberative assembly of 
which he was a member seemed, by common consent, to devolve. 
In the warm conflict between the House of Burgesses and a royal 
Governor, who sought to tax the people without the consent of 
their representatives, which had occurred in his early manhood, 
he had taken an honorable part, and had been sent abroad to 
seek redress at the foot of the throne. His fine person and dig- 
nified demeanor had made an impression even within the pre- 
cincts of St. James. He had filled the office of Attorney-Gen- 
eral with acknowledged skill, and had volunteered, at a time of 
danger, to march at the head of his company against the Indians. 
He had presided ten years in the House of Burgesses, and had 
won the affection of its members. He was hated by those only 
who hated his country. He had presided in the August Con- 
vention of 1774, and in the Conventions of March and July, 
1775, and was the first president of Congress. He had died, 



44 Gary died at ' Ampthill," his seat in Chesterfield county, but was 
buried in the ancestral grounds at "Ceeleys," in Warwick county. ED. 

45 In the discourse on the Convention of 1776, page 90, I allude to 
Colonel Gary as rather small than large in stature, though compact and 
muscular. Subsequent investigations have led me to believe that he 
was a large man of great physical strength. His corporeal powers 
have been celebrated in poetry as well as in prose. [He was known 
by the sobriquet " Old Iron." ED.] 



VIRGINIA CONVENTION OF 1788. 39 

almost instantaneously, while attending to his duties in Congress ; 
but his remains had been brought to Virginia ; and persons then 
present remembered that melancholy morning on which the 
coffin of Peyton Randolph, wrapped in lead, had, twelve years 
before, been borne from his late residence, along the high street 
of Williamsburg, followed by the first General Assembly of the 
Commonwealth, with their speakers at their head, by the Ma- 
sonic body, and by a large concourse of citizens, to the threshold 
of William and Mary College, the nurse of his early youth and 
the object of his latest care, and had been consigned, with the 
offices of religion and the rites of Masonry, amid the shrieks of 
women and the audible sobs of wise and brave men, to the an- 
cestral vault beneath the pavement of the chapel. Other familiar 
faces were also missing ; and old men shook their heads, shrugged 
their shoulders, and muttered that it was ill for the country that 
such men, at such a crisis, were in their graves ; and that public 
bodies were not now what they once had been. A sounded 
opinion would be that, in ability and capacity for effective public 
service, the Convention of 1776 was surpassed by the Conven- 
tion of 1788, which was in its turn surpassed by the Convention 
of 1 829-30. 46 

46 It is the opinion of what may be called the illustrious second growth 
of eminent Virginians men who were born between 1773 and 1788 
such as John Randolph, Tazewell, James Barbour, Leigh, Johnson, Philip 
P. Barbour, Stanard, the late President Tyler, etc., who may be said 
to have lived in the early shadows of the body itself, and mingled with 
some of the members in their old age, that the present Convention 
was, as a whole, the most able body which had then met in the United 
States. It is creditable to the conservative character of Virginia that 
in all her public bodies since the passage of the Stamp Act each suc- 
cessive one has been largely made up from its predecessor. Thus in 
the Convention of 1776 there was a large number of the leading mem- 
bers who voted, in 1765, on Henry's resolutions against the Stamp Act, 
such as Henry himself, Nicholas, Harrison, Pendleton, Wythe, Lewis, 
and others; and in the present Convention there were members who 
had been in the House of Burgesses in 1765, as well as in the Conven- 
tions of 1774, 1775, and 1776. And in the Convention of 1829-30, the 
Convention of 1776 was represented by Madison, the only surviving 
member, and the present Convention by Madison, Marshall and Mon- 
roe. If we were to trace back the Journals from 1765 to 1688, the date 
of the British Revolution, although I have never performed that office, 
and state my impressions only, I believe that a continuous and con- 



40 VIRGINIA CONVENTION OF 1788. 

% 

It has been said that the interest excited by the Convention was 
not confined to the Commonwealth. It was well known, as 
already stated, that, with the exception of Washington and Mc- 
Clurg, all the representatives of Virginia in the General Conven- 
tion were members of the present ; and it was feared by the 
friends of the Constitution abroad that, as three only out of seven 
had signed that instrument, and one of those in an official char- 
acter only, it would appear, as it were, under the protest of a 
majority of those to whom Virginia had committed her interests 
and her honor. But what enhanced the excitement beyond our 
borders, as well as at home, was the knowledge of the fact that, 
of the nine States necessary to the inauguration of the new sys- 
tem, eight had already ratified it, and the favorable vote of the 
ninth, as the result soon proved, was certain. It was also believed 
that Rhode Island, which was not represented in the General 
Convention, and North Carolina would decline to accept it.* T 

trolling representation of the House of Burgesses, which acknowledged 
allegiance to William and Mary as their lawful sovereigns, could be 
traced to the Burgesses of 1765, and, as I have just shown, to 1776, when 
that allegiance was withdrawn, to 1788, and to 1829-30, a period of 
nearly a century and a half. And if we go back to the first House of 
Burgesses held in the Colony, at James Town, July 30, 1619, a year be- 
fore the May Flower left England with the Pilgrim Fathers of New 
England, and consisting of twenty-two members, we will find Mr. Jef- 
ferson, of Flowerdieu Hundred, represented by Mr. Jefferson, of Albe- 
marle, in the Convention of 1776; Captain William Powell, of James 
City, represented in the present Convention by Colonel Levin^Powell, 
of Loudoun ; Mr. John Jackson, of Martin's plantation, by George Jack- 
son, of Harrison, in the same body, and Charles Jordan, of Charles 
City, by Colonel Samuel Jordan Cabell, of Amherst. 

47 The Convention of North Carolina met on the 2ist of July, 1788, 
when the Constitution was lost by one hundred votes. Wheeler's 
North Carolina, II, 98. The States adopted the Constitution in the fol- 
lowing order : Delaware, December 7, 1787 ; Pennsylvania, December 
12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; 
Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Mary- 
land, April 28, 1788 ; South Carolina, May 23, 1788 ; New Hampshire, 
June 21, 1788; Virginia, June 26, 1788; North Carolina, November 21, 
1789 ; Rhode Island, May 29, 1790. Hence it appears that the Consti- 
tution was accepted by nine States five days before Virginia cast her 
vote, a fact which, though alluded to in Convention, could not have 
been known positively at the time. 



VIRGINIA CONVENTION OF 1788. 41 

The vote of Virginia, which was eagerly sought by the friends 
of the Constitution not only as the vote of a State, but as the 
vote of the largest of the States, was then, if not to decide its 
fate, yet materially to affect its success; for, although the instru- 
ment should be ratified by New Hampshire, and the full comple- 
ment of States required to the organization of the Government 
be attained, still there were fears that Virginia might, as was 
afterwards suggested by Jefferson, and attempted in the body, 
hold out until such amendments as she would propose as the 
condition of her acceptance should be ratified by the States, and 
become an integral part of the new system. Nor were these 
apprehensions groundless. Her western boundary was the Mis- 
sissippi, and strange reports, which we know represented not 
less than the truth, were rife that a deliberate effort had been 
made by the Northern and Middle States to close the navigation 
of that stream by the people of the South for thirty years ; nor 
was it known that a scheme so fatal to the prosperity of Virginia 
had been abandoned. The vote which was to decide these 
doubts was to be given by the Convention about to assemble. 
We have said that fears for the rejection of the Constitution 
were not ill-founded. At no moment from its promulgation to 
the meeting of the first Congress in the following year, would the 
new system have received more than a third of the popular vote 
of, the State. It was ultimately carried in a house of one hun- 
dred and seventy members by a majority of ten only, and five 
votes would have reversed the decision ; and it is certain that at 
least ten members voted, either in disobedience of the positive 
instructions of their constituents, or in defiance of their well- 
known opinions. 48 Nor were those opinions the offspring of the 



48 See the proceedings of the Assembly which met three days before 
the adjournment of the present Convention. Judge Marshall, who was 
a member of the present Convention, and probably wrote from the 
result of his observation in Virginia, says, " that in some of the adopt- 
ing States, a majority of the people were in the opposition "; he also 
says, "that so small in many instances was the majority in its favor, 
as to afford short ground for the opinion that had the influence of char- 
acter been removed, the intrinsic merits of the instrument would not 
have secured its adoption." Life of Washington, II, 127. Sympa- 
thizing as I do with the views of Henry, Mason, &c., who opposed the 
Constitution, it might appear invidious to give the names of those who 



42 VIRGINIA CONVENTION OF 1788. 

% ' 

moment. They had been held by their ancestors and themselves 
for a century and a half; and as they reflected the highest credit 
upon the patriotism of our fathers and that conservative worth 
which is the true safety of States, but which has fallen into dis- 
repute in more recent times, it is proper to recall their modes of 
thinking on political subjects, as well as to take a passing glance 
at the state of parties into which the public men of that day were 
divided. A large portion of the people, even larger than at 
present, were engaged in the cultivation of the earth, and were 
in the main tobacco planters and slave-holders ; and a tobacco- 
planting, slave-holding people are rarely eager for change. Like 
their ancestors in England, they were not anxious for the alter- 
ation of laws to which they had long been accustomed. Even 
during the contest with the mother country, no greater changes 
were made than were deemed absolutely necessary to accomplish 
the end in view. The Committee of Safety, which, in the inter- 
vals of the sessions of the Conventions, administered the govern- 
ment until the Constitution went into effect, was but a standing 
committee of the Conventions, which were the House of Bur- 
gesses under another name. And when a declaration of inde- 
pendence, which was held back until it became impossible to 
obtain foreign aid -in men and means without such a measure, 
was put forth, and a new form of government was rendered 
imperative, no greater change was made in the existing system 
than was required by the emergency. The law of primogeni- 
ture, the law of entails, the Church establishment, were not 
touched by the Constitution. And when the Convention of May, 



voted as charged in the text. As an illustration of " the influence of 
character,' 1 it may be said that no four men excited more influence 
in favor of the Constitution in Virginia, than George Washington, 
Edmund Pendleton, George Wythe, and James Madison, and four 
purer names were probably never recorded in profane history ; yet to 
those who look into the secret motives that unconsciously impel the 
most candid minds on great occasions, which involve the destinies of 
posterity, it may be said that they were all men of wealth, or held office 
by a life tenure, and that, though married, neither of them ever had a 
child. In the same spirit it may be mentioned that Mason and Henry 
were men of large families, and that hundreds now living look back to 
"Gunston Hall" and "Red Hill." In the case of Henry, the cradle 
began to rock in his house in his eighteenth year, and was rocking 
at his death in his sixty-third. 



VIRGINIA CONVENTION OF 1788. 43 

1776, which formed the Constitution, adjourned, the polity of the 
Colony, with the exception of the executive department, was 
essentially the polity of the Commonwealth. The House of 
Delegates was the House of Burgesses under another name. The 
Senate was the Council under a different organization. It was 
to be chosen by the people instead of being nominated by the 
king, and its judicial forces, separated from its legislative, were 
assigned to officers who composed the new judiciary. Although 
the new Constitution was assailed shortly after its birth by the 
authority and eloquence of Jefferson, and at a later date by able 
men, whose talents were hardly inferior to those of Jefferson, it 
remained \\ithout amendment or revision for more than half a 
century. Our fathers were as prompt and practical as well as 
prudent ; and when it was necessary to form a bond of union 
among the States, they accepted the Articles of Confederation 
without delay. But when so great a change in the organic law 
as was proposed by the Federal Constitution was presented for 
their approval, they were filled with distrust and suspicion. 
That instrument, under restrictions real or apparent, invested the 
new Government with the purse and the sword of the Common- 
wealth. Alarming as this concession appeared to the people, it 
was as unexpected as alarming. The colonists had brought to the 
new world a just appreciation of the liberties which they enjoyed 
in Great Britain; and the appreciation was enhanced by the repre- 
sentative system which was adopted here. There were times, 
indeed, in the previous century, as in the then existing one, 
when the rights and privileges of a British subject, here as well 
as in England, were disregarded or lost sight of for a season ; but 
there were no times when the great bulwarks of British freedom 
were razed to their foundations. The governor was appointed 
by the king, and appeared in the Colony either by proxy or by 
deputy; and he had the power of proroguing the Assembly. 
An ancient form, which had been borrowed from England, pre- 
scribed that the member who was elected Speaker of the House 
of Burgesses should, before taking the chair, and before the mace 
was laid upon the table of the clerk, be approved by the Gover- 
nor ; but should the Governor refuse to approve the choice of 
the House, the House might proceed to elect another Speaker; 
and should the Governor determine to reject a second choice of 
the House, another election must follow, for none other than a 



44 VIRGINIA CONVENTION OF 1788. 

% : 

member could occupy the chair. The assent of the king- was 
necessary to a law ; but that assent was in extreme cases only 
suspended, and so rarely withheld that a law took effect on its 
passage ; and in the event of a refusal of the royal assent, the 
worst consequence was that the people were thrown on the exist- 
ing laws which had been enacted by themselves. Every shilling 
/ collected from the colonists for more than a century and a half 
had been assessed by their own House of Burgesses, and was 
received and disbursed by a Treasurer, who was elected by the 
House, who was almost always a member of it, and was respon- 
sible to it for the performance of his duty. 49 Our fathers were 
always ready to give and grant their own money of their own 
free will, but not upon compulsion or at the dictation of another. 
They appropriated large sums for the Indian wars, when it was 
known that the hostile attacks of the savages were excited by the 
French, and were made upon the territory of the Colony, not 
from any hatred to the colonists, but because they were the sub- 
jects of the British king. During the government of Cromwell, 
the colonists had not" only exercised the functions of a free State, 
but were substantially independent. They passed what laws 
they pleased, and carried a free trade with foreign nations. In 
the commercial control of the mother country, they were com- 
pelled to acquiesce ; but they denied the right of Parliament to 
lay a shilling in the shape of direct taxation. Hence the resist- 
ance to the Stamp Act, and the series of measures which led 



49 The Speaker was almost invariably appointed Treasurer until a 
separation of the offices was effected in 1766, on the death of Speaker 
Robinson, when Peyton Randolph was elected Speaker, and Robert 
Carter Nicholas, Treasurer. The Burgesses rarely changed their offi- 
cers, John Robinson, the predecessor of Randolph, having filled the 
chair more than twenty years, and Randolph filled it from his first 
appointment to 1775, when he withdrew to attend Congress. R. C. 
Nicholas was re-elected Treasurer from 1766 to 1776, when he resigned 
because the Constitution would not allow the Treasurer to hold a seat 
in the Assembly. See Journal House of Delegates, November 29, 
1776, where Nicholas is thanked by the House for his fidelity, and ex- 
presses his acknowledgments, closing his remarks with these words : 
'That he would deliver up his office to his successor, he trusted, with 
clean hands ; he would assure the House it would be with empty ones." 
These words were often quoted by our fathers when the name of Nicho- 
las was mentioned. 



VIRGINIA CONVENTION OF 1788. 45 

slowly but surely to independence. So jealous and so careful 
were the people of Virginia on the subject of direct taxation that 
under the pressure of the war, when the Articles of Confedera- 
tion were adopted, they would not part with the power of the 
purse, and cautiously provided in those Articles that the quota of 
each State in the general charge should be raised, not by taxa- 
tion at the discretion of Congress, but in the form of a requi- 
sition on the State alone. This principle was so firmly planted 
in the general mind, that no speaker in public debate, no writer 
from the press, dared to assail or call it in question. And lest a 
delegate to Congress might prove faithless to his trust, though 
his term of service lasted yet a single year, and he could serve 
only three years out of six, he might be recalled at any moment 
at the bidding of the Assembly. 50 The Act of Assembly ap- 
pointing delegates to the General Convention, so far from con- 
templating a surrender of the principle of taxation, guarded it 
with the greatest care, and instructed the members so appointed 
" to join with the delegates from other States in devising and 
discussing all such alterations and further provisions as may be 
necessary to render the Federal Constitution adequate to the 
exigencies of the Union, and in reporting such an act for that 
purpose to the United States in Congress, as, when agreed to by 
them, and duly confirmed by the several States, will effectually 
provide for the same." It was evidently an ordinary amend- 
ment to the Articles of Confederation, to take the course pre- 
scribed in that instrument in the case of amendments, and not 
the substitution of a different scheme of government, which they 
sought to obtain. 51 They dearly loved the union of the States, 

50 Articles of Confederation, Art. V. 

5J Nothing can be clearer than the fact stated in the text. The Arti- 
cles of Confederation provide for their own amendment in these words : 
"unless such alterations be agreed to in a Congress of the United 
States, and be afterwards confirmed by the legislatures of every State." 
Art. XIII. Accordingly, when on the 3d of November, 1786, the House 
of Delegates, after a deliberate discussion in committee of the whole, 
adopted a resolution requiring a bill to be brought in appointing dele- 
gates to the General Convention, they conclude their instructions to 
the committee in these words : "And to report such an act for the pur- 
pose to the United States in Congress assembled, as, when agreed to 
by them, and afterwards confirmed by the legislatures of every State, 



46 VIRGINIA CONVENTION OF 1788. 

% : 

and they felt that some decided measure was necessary to sus- 
tain the public faith. The debt of the Revolution was not only 
unpaid, but the money to pay the interest upon it was impracti- 
cable to obtain. Requisitions were faithfully made by the Con- 
gress ; but, in the absence of pressure from without, and from 
the extraordinary difficulties which beset the States just emerging 
from a protracted civil war, were rarely complied with. To 
amend the Articles of Confederation, therefore, was a measure 
required alike by our relations with our confederate States, and 
with the States of Europe to which we were so deeply indebted 
for those loans that Enabled us to prosecute the war, and was 
demanded by every consideration of justice and of honor. 

The Assembly, however, was careful and explicit in declaring 
that it was an amendment to the existing form that they desired, 
and not a change in the form itself. With that form they were 
satisfied. It had borne them through the war ; and under its 



will effectually provide for the same." The committee so appointed 
consisted of Mathews, George Nicholas, Madison, Nelson, Mann Page, 
Bland and Corbin. Madison drew the bill concluding with the resolu- 
tion in the text, which conforms generally with the instructions, but 
substitutes the word '"States" for legislatures, the word used in the 
Articles of Confederation, and in the resolution of the House ordering 
the bill to be brought in. Now, this may have been done inadvertently ; 
but when we know the unpopularity of Madison in the House, which 
he felt so keenly that when he drew his resolution inviting the meet- 
ing at Annapolis, he had it copied by the clerk of the House, lest his 
handwriting should betray the authorship, and prevailed on Mr. Tyler 
to offer it, and which prevented him from doing any act directly with 
any hope of success, we hardly -refrain from calling it a parliamentary 
manoeuvre. And this view is strengthened when we recall a similar 
manoeuvre by which that resolution was carried through the House. 
It was called up on the last day of a session of more than three months' 
duration, when it is probable that a large number of the members had 
departed with the confident belief that, in their commercial Convention 
with Maryland, in which all the States were invited to participate, they 
had settled the subject of Federal relations, and was pressed through 
both houses in a few hours. All these things may be legitimate in the 
strategy of politics, but they excite distrust and work evil. But our 
present purpose is only to show that it was an amendment, in the strict 
sense of the word, of the Articles of Confederation, and not their 
entire destruction, that the Assembly had in view in sending delegates 
to Philadelphia. 



VIRGINIA CONVENTION OF 1788. 47 

influence, since the peace, the trade and commerce of Virginia 
had advanced with rapid strides. The State and the people had 
been plunged, by a war of eight years, into difficulties and em- 
barrassments, which time only could remove ; but there was 
every reason to believe that the time of deliverance was at hand. 
The duties from commerce were pouring larger and larger sums 
every year into the treasury of the State; and the day was not 
distant when, from this source alone, Virginia would be able not 
only to meet all the requisitions of the Federal Government, but 
to defray a large part of the ordinary expenses of government. 
Such was the state of the public mind when the new system 
was proposed for the adoption of the people. Its first appearance 
was calculated to excite alarm. They beheld a total subversion 
of the plan of government to which they were attached, and 
which they had expressly instructed their delegates to amend, 
not to destroy. They saw, or thought they saw, in the power of 
laying taxes, which the new plan gave to Congress, their most 
sacred privilege, which they and their fathers before them had so 
long enjoyed, and in defense of which they had lately concluded 
a fearful war, would be invaded, if not wholly alienated. It was 
true that they would contribute a respectable delegation to Con- 
gress ; but, as the interests of the States were not only not iden- 
tical, but antagonistic, it might well happen, nay, it would fre- 
quently happen, that a tax would be levied upon them not only 
without the consent of their representatives, but in spite of their 
opposition. Direct taxes were unpleasant things, even when laid 
by their own Assembly ; but when laid by men who had no com- 
mon interest with those who paid them, they might be oppres- 
sive ; and when they were oppressive, the State would have no 
power of extending relief; for the Acts of Congress were not 
only to prevail over Acts of Assembly, but over the Constitu- 
tion of the State. Heretofore, even in the Colony, they had 
always looked to their House of Burgesses for relief, and had 
rarely looked in vain. That body had ever been faithful to the 
rights and franchises of British freedom. It had, ere this, de- 
posed a royal Governor, had held him in confinement, and had 
transmitted him, by the first vessel from the James, to pay his 
respects to the King. It had frequently sent agents to England, 
who were in all things but the name the ministers plenipotentiary 



48 VIRGINIA CONVENTION OF 1788. 

% 

of the Colon)'. 52 But the power of the purse and the power of 
the sword were not the only invaluable rights which were to be 
surrendered to the new Government. The commerce and the 
navigation of the country were to be placed under the exclusive 
control of Congress. The State had expressed a willingness to 
allow a certain percentage of her revenue, derived from imports, 
for the benefit of the Federal Government, and was ever willing 
and ever ready to bear her full proportion in the general charge; 
but she had deliberately refused, three years before, 53 when the 
proposal was made in the Assembly, and was sustained by all the 
authority which argument and eloquence could exert, to part 
with the right to regulate the entire trade and business of the 
community, and was not disposed to go farther now than she was 
then willing to go. Indeed, on this subject the people desired 
no change. Their prosperity under the existing system was as 
great as could have been anticipated ; nay, had surpassed their 
most sanguine hopes ; and, as the North was a commercial peo- 
ple, it was probable that, whatever the South might lose, it was 
likely to gain nothing by subjecting its interests to such a super- 
vision. To sum up the whole : They thought that, however im- 
portant a Federal alliance with the neighboring States would be 
to the members who composed it, and however solicitous Vir- 
ginia was to form such a union on the most intimate and liberal 
terms, there was a price she was not disposed to pay ; that such 
a union was, at best, the mere machinery for conducting that 
comparatively small portion of the affairs of any community 
which is transacted beyond its borders more economically and 
effectually than could be done by the community itself; and that, 
in effecting it, to surrender the right to lay its own taxes, to reg- 
ulate its own trade, to hold its own purse, and to wield its own 
sword at once and forever, was a sacrifice which no large and 



52 Sir John Randolph was sent to England more than once. In the 
epitaph on Sir John, inscribed on the marble slab in the chapel of Wil- 
liam and Mary College, which was destroyed by fire in 1858, it is stated 
that he was frequently sent to England: " Legati ad Anglos semel 
atque iterum missi vices arduas suslinuit" His sons, Peyton and John, 
were also sent over, besides others. 

53 Journal of the House of Delegates, October session of 1785, pages 
66-67. 



VIRGINIA CONVENTION OF 1788. 49 

prosperous Commonwealth had ever made, and which no large 
and prosperous Commonwealth could make without dishonor 
and shame. 

By a people whose minds had been excited to a high pitch by 
fear and suspense, one aspect of the Convention, which ought 
not to be overlooked in the review of a great historic period, 
was regarded with absorbing interest. It was the peculiar rela- 
tion which the members held to the State and Federal politics of 
the day. No error is more common than to refer the origin of 
the party divisions of the Commonwealth to the present Federal 
Constitution, and to the measures adopted by Congress under 
that Constitution. Long before that time, parties had been 
formed, not only on State topics, but on those connected with the 
Federal Government. From the passage of the resolutions of 
the House of Burgesses against the Stamp Act to the time when, 
eleven years later, an independent State Government was formed, 
there had been a palpable line drawn between the parties of the 
country. In that interval some prominent names might occa- 
sionally be found on either side of the line ; but the line was at 
all times distinctly visible. 54 But, if it was visible in the Colony, 

54 If the critical reader will run over the names of the members of the 
House of Burgesses of 1765, and the names of the members of the 
early Conventions, he will think, with me, that a majority of the men 
who 'opposed the resolutions of Henry against the Stamp Act, opposed " 
the resolutions of the same gentleman of March, 1775, which proposed 
to put the Colony into military array, and the resolution, I am inclined 
to think, instructing the Virginia delegates in Congress to propose in- 
dependence. The same members who opposed independence, we are 
expressly told by Henry, in his letter to R. H. Lee, of December 8, 
1777, also opposed the adoption of the Articles of Confederation. And 
these members were, in the main, warm advocates for the adoption of 
the new Federal Constitution. On the other hand, Henry, R. H. Lee, 
George Mason, William Cabell, and others, who sustained the mea- 
sures above enumerated, were the fiercest opponents of that instru- 
ment. Heretofore the party, of which Henry was usually regarded the 
head, had held almost undisputed sway in the Assembly ; but, though 
it still included a large majority of the people, the skill and tact with 
which the friends of the new Constitution selected their candidates 
among the judges, and the military men, and the old tories, who, though 
they opposed all the great measures of the Revolution, including the 
Articles of Confederation, had become strangely enamored of the new 
scheme, had shaken the established majority. This was one of the 



50 VIRGINIA CONVENTION OF 1788. 

% ' 

it was still more boldly defined in the Commonwealth. The 
great office of conforming our local legislation to the genius of a 
republican system, would have called the two parties into life, if 
they had not previously existed, and presented in the daily de- 
liberations of the Assembly innumerable themes of difference 
and even of discord. The abolition of the laws of primogeni- 
ture and entails ; the separation of the Church from the State, 
which was effected only after one of the longest and most ani- 
mated contests in our legislation ; the expediency of religious 
assessments ; the perpetually recurring subject of Federal requi- 
sitions for men and money ; the policy of ceding to the Union 
that magnificent principality extending from the Ohio to the 
northern lakes, which, divided into four States, now sends to the 
House of Representatives of the United States a delegation 
equal to nearly two-thirds of the whole number of that House at 
its first session under the Federal Constitution, and a delegation 
to the Senate which exceeds one third of the whole number of 
the Senate at its first organization ; the mode of conducting the 
war; the navigation of the Mississippi, which, even at the date of 
the present Convention, bounded our territory on the west ; the 
propriety of adopting the Articles of Confederation, and, at a 
later date, the expediency of amending them. These, and simi- 
lar topics, were of the gravest moment, and might well produce 
a clashing of opinions. On these questions the parties, which 
had taken their shape as early as 1765, usually maintained their 
relative positions toward each other. But, fierce as was the con- 
tention on State topics, it was mainly on questions bearing di- 
rectly or indirectly on Federal politics that the greatest warmth 
was elicited. It is known that, from the difficulties incident to a 
state of war, and especially a war with a great naval force, there 
could be but a slight interchange of commodities with foreign 
countries, and no introduction of specie from abroad. The only 
resort was the credit of the Commonwealth. While that resource 
was made for a season more or less available at home, some 
other means of meeting Federal requisitions were indispensable. 



causes of the public alarm at the time. The Federalists well knew 
that when such men as Edmund Pendleton, George Wythe, John Blair, 
and Paul Carrington, all of whom were on the bench, appeared at the 
hustings, nobody would vote against them. 



VIRGINIA CONVENTION OF 1788. 51 

To lay taxes, payable in gold and silver only, when there was 
neither gold nor silver in the State, was worse than useless. 
The taxes must then be laid, payable in kind, and their proceeds 
sold for what they would fetch in a market without outlet at 
home or abroad. Hence the difficulty of a prompt and full 
compliance with the requisitions of the Federal Government was 
almost insuperable. But as that Government, which was almost 
wholly dependent on the immediate action of the States, if not 
for its existence, at least for the effectual discharge of its appro- 
priate duties, suffered severely by the default, those who were 
charged with its administration urged the necessity of relief upon 
the members of the Assembly with a warmth which the occasion 
justified, but which became at times embarrassing and even offen- 
sive. Nor was this state of things, the result of causes which it 
seemed almost impossible entirely to remove, materially changed 
in the years immediately succeeding the peace. There was also 
a strong suspicion that the members of Congress, fascinated by 
the allurements of a life abroad, and engaged in the considera- 
tion of questions affecting all the States, were disposed to view 
their own State rather as one of a confederation than as an in- 
dependent sovereignty, and to regard the interests of the former 
as subservient to the interests of the latter. From these and 
other considerations equally cogent, some of the members of 
Congress, however honest and able, became unpopular with the 
majority at home, which was responsible for the conduct of the 
State, and were regarded with distrust. Indeed, jealousy and 
suspicion seem to have presided at the origin of our Federal 
relations, and were exhibited from the beginning partly toward 
the Federal Government itself, and partly toward the members 
of Congress, personally and collectively. The term of the ser- 
vice of a member of Congress originally was for one year, with 
the capacity of eligibility for an indefinite period. Two years 
later the Assembly determined, by a solemn act, to curtail the 
term of eligibility to the period of three successive years, when 
the incumbent must withdraw for a year, and, as it was alleged 
at the time, from party motives made the rule retroactive in its 
operation. 55 Richard Henry Lee, who was the first to feel the 

55 Hening's Statutes at Large, IX, 299. Mr. Jefferson drew the act 
and affirmed that his object was to curtail the delegation on the ground 
of economy. 



52 VIRGINIA CONVENTION OF 1788. 

% 

effect of the act, complained bitterly, in a letter to Henry, that it 
was aimed at himself, 56 although one of the provisions of the 
same act fell immediately on Harrison and Braxton. It should 
seem that, whether from the jealousy entertained toward the 
Government itself, or hostility to certain members of Congress, 
from considerations not yet fully made public, Congress well-nigh 
became the slaughter-house of the popularity of the delegates 
who attended its sittings. Even in the days of the early Conven- 
tions the good name of Richard Bland was so blown upon that 
he demanded an inquisition into his conduct. 57 The popularity of 
Richard Henry Lee suffered for a season a total eclipse in the 
Assembly. From that memorable day, when in the first joint 
convention of both Houses of Assembly he made his eloquent 
defense against the charges which had led to his retirement from 
Congress, to the twenty-first day of January, 1786, when the reso- 
lution convoking the meeting at Annapolis was adopted, some 
of the warmest contentions of the Assembly were upon Federal 
topics. Nor to the latest hour did that body ever regard, with 
full faith, those who had borne a conspicuous part in the delibe- 
rations of Congress. The distrust of those who had served in 
that body was shown on a remarkable occasion. Madison, as 
an individual, was not only without fault, and one of the purest 
men of his times, but, in intellectual accomplishments, excelled 
almost all his contemporaries ; yet, when, in the House of Dele- 
gates at the October session of 1785, he sought to secure the 
passage of a resolution investing Congress, for a term of years, 
with the power to regulate commerce, and made, in its defence, 
a speech which, if we judge from the outlines and copious notes 
that have come down to us, must have been one of the ablest 
ever made in the House, he met with as terrible a defeat as the 
annals of parliament afford. 58 Heretofore, both in the Colony 
and in the Commonwealth, that party, which, for the want of a 
better name, we may style Democratic, though now and then 



56 Letter of R. H. Lee in the " Red Hill " papers. 

57 Journal Virginia Convention of July, 1775, page 15. 

58 For the outlines of the speech and the notes from which Madison 
spoke, see Mr. Rives' History of the Life and Times of James Madi- 
son, II, 48-51, and for the preamble and resolution, see Journal of the 
House of Delegates, October session of 1785, pages 66, 67, where, after 
his great speech, he was one of eighteen ayes to seventy-nine noes. 



VIRGINIA CONVENTION OF 1788. 53 

defeated by the ability and tact of its opponents, had been, in 
the main, triumphant, and had usually carried its measures by a 
decisive majority. And the probability was that, as the ratify- 
ing Convention was called on the basis of the House of Dele- 
gates, that party would still maintain its predominance in that 
body ; and it was with a full reliance on this calculation that the 
resolutions convoking the General as well as the State Conven- 
tions, had received the assent of the Assembly. Nor can there 
be a doubt that such would have been the case in ordinary times ; 
but the large and unexpected infusion of new members had cre- 
ated alarm in the breasts of the majority of the Assembly and of. 
the people at large ; and one of the most exciting questions that 
engaged public attention was how far the new element would 
affect the balance of power. Thus, at so early a period did Fed- 
eral politics rage with a violence not inferior to that which 
marked the close of the century. 59 

Nothwithstanding the bickerings produced by Federal politics 
in our councils, we should do great injustice to the men who for 
nearly a quarter of a century wielded the will of the Assembly, 
if we impute to them a want of affection for the Union. The 
Union was the daughter of their loins. They nursed her into 
action. They were the men who called the little meeting in 
Williamsburg in the late summer of 1774, which we honor with 
the title of the first Convention of Virginia, and who sent dele- 
gates to Carpenter's Hall. They were the first to advise Con- 
gress to adopt "a more intimate plan of union," and to form the 
Articles of Confederation ; and when those Articles were re- 
ported for the consideration of Virginia, they approved them by 

59 It cannot be disguised that personal and political animosities were 
as freely indulged in from 1776 to 1790 as from 1790 to the election of 
Mr. Jefferson to the Presidency. Henry, Jefferson, and Richard Henry 
Lee, were among the best abused. Charles Carter, of " Sabine Hall," 
was a gentleman, a scholar, and a patriot, and far advanced in life in 
1776 ; but, in a letter of that year addressed to Washington, see what 
he says of Henry and Jefferson (American Archives, fifth series, 1776, 
Vol. II, pages 1304-5) ; and see the letter of Theodoric Bland, Sr., to 
Theodoric Bland, Jr., dated " Cawson's," January 8, 1871 (Bland Papers, 
II, 50). It is necessary to know the personal friends of the men of that 
era in order to judge of the weight of testimony ; but I will not touch 
upon them unless it is indispensable to the truth of history, and espec- 
ially to the defence of private character. 



54 VIRGINIA ^CONVENTION OF 1788. 

a majority so overwhelming that the opponents of Union dared 
not to oppose them openly. 60 When the Articles on the ninth 
day of July, 1778, were called up from the table of Congress to 
be signed by the States as such, while some States signed in part 
only, and some not at all, the delegates of this Commonwealth, 
who had been recently elected by the Assembly, came forward 
and signed them on the spot. Throughout the war the Assembly 
held up the hands of Congress, and complied with its requi- 
sitions, if not to the letter, to the utmost of its ability. Since 
the peace, the British debts, which the definitive treaty required 
to be paid, excited warm feelings and produced acrimonious de- 
bates; but this was a topic on which parties divided. At the 
date of the Revolution, the indebtedness of individuals to Eng- 
land was estimated at ten millions of dollars, and the minority 
was far more interested in the question than the majority. 81 In fine , 
the cause of the Confederation was the cause of the majority. It 
was the work of their hands. At the May session of 1784, they 
assented to the amendment to the Articles of Confederation which 
required the whole number of free white inhabitants and three- 
fifths of all others to be substituted for the value of lands and 
their improvements as the rule of apportioning taxes, and were 
eager to provide Congress with such information as was needed 
to fix the valuation of lands and their improvements in the sev- 
eral States required by the existing rule of apportionment under 
the Articles of Confederation. At the same session they further 
provided that until one or the other mode of assessing taxes be 
ascertained, that any requisition made upon any basis by Con- 
gress on the States should be faithfully complied with. The 
Assembly went yet farther, and passed a resolution, said to have 
been drawn by Henry himself, providing that when " a fair and 
final settlement of the accounts subsisting between the United 
States and individual States" shall be made, the balance due by 
any State " ought to be enforced, if necessary, by such distress 



60 Henry to R. H. Lee, December 18, 1777. Grigsby's Discourse on 
the Virginia Convention of 1776, 142, note. 

61 To show how parties fluctuated on the subject of the payment of 
British debts, I refer to a note in Mr. Rives' History of the Life and 
Times of Madison, II, 538, which furnishes a remarkable instance in 
point, and presents with graphic spirit the effect of Henry's eloquence 
in a deliberative body. 



VIRGINIA CONVENTION OF 1788. 55 

on the property of the defaulting States, or of their citizens, as, 
by the United States, in Congress assembled, may be deemed 
adequate and most eligible." They also resolved, at the same 
session, to invest Congress, for the term of fifteen years, with 
authority to prohibit the vessels of any nation, with which no 
commercial treaty existed, from trading in any part of the United 
States ; and to prevent foreigners, unless belonging to a nation 
with which the States had formed a commercial treaty, from im- 
porting into the United States any merchandise not the produce 
or manufacture of the country of which they are citizens or sub- 
jects ; thus sanctioning a policy which would have materially 
impaired the prosperity of the Commonwealth. 62 When Con- 
gress determined to apply to the States for authority to levy, for 
the term of twenty- five years, certain specific rates of duty on 
certain articles, and a duty of five per cent, on all others an 
application which was made as early as April, 1783, when the 
finances of Virginia were in great confusion, and her main de- 
pendence was upon customs she, with that wise jealousy of 
Federal action, bearing directly upon the people instead of the 
State, declined for a time to accede to it, but ultimately was dis- 
posed to acquiesce in the measure. 63 But there was one thing 
the Assembly persistently refused to grant the entire surrender 
of the right to regulate commerce. To regulate the trade of a 
country was, in their opinion, to regulate its entire industry, and 
control all its capital and labor, and that was a province, they 
honestly believed, not only without the pale of a Federal alli- 
ance, but incompatible with it. They had accordingly resisted 
heretofore, with all their might, every effort to extort such a con- 
cession from them ; and at the October session of 1785, when a 
proposition was offered to make that cession for a term of twenty- 
five years, and upheld by Madison and other able men, the ma- 
jority of the House of Delegates, impelled by their devotion to 
the Union, went so far as to yield that invaluable boon for the 
term of thirteen years ; but when a motion was made to continue 
the grant beyond that limit, on certain conditions, it was rejected 



62 For these acts, consult the Journals of the House of Delegates, 
May session of 1784, pages 11-12 ; and Rives' Life and Times of Madi- 
son, I, 563-4-5. Tucker's History of the United States, I, 335. 

63 Hening's Statutes at Large, XI, 350. 



56 VIRGINIA CONVENTION OF 1788. 

by a decisive vote, and on the following day, believing that they 
had gone too far in conceding the right for thirteen years, recon 
sidered their vote and laid the bill upon the table, to be called 
up no more. 64 Of that majority, Henry, when he happened to 
have a seat in the Assembly, was always the leader, and for near 
a twelvemonth later than the date of the passage of the resolu- 
tion convoking the meeting at Annapolis, was regarded as the 
Federal champion. 65 But we have said enough to show that the 
majority in our councils, who were opposed to the adoption of 
the new Federal Constitution, had been the warm and consistent 
friends of a Federal alliance. 

A recent act of that majority had roused the fears of the 
friends of the new institution. The general Federal Convention 
adjourned on the seventh of September, 1787, but before ad- 
journing had adopted a resolution expressing " the opinion that 
the new Constitution should be submitted to the Convention of 
Delegates, chosen in each State by the people thereof, under the 
recommendation of its legislature, for their assent and ratifica- 
tion." The following month the General Assembly of Virginia 
held a session, and on the twenty-fifth of October passed a series 
of resolutions setting forth that the Constitution "ought lobe 
submitted to a Convention of the people for their full and free 
investigation and discussion"; that "every citizen being a free- 
holder should be eligible to a seat in the Convention"; that "it 
be recommended to each county to elect two delegates, and to 
each city, town, or corporation, entitled, or who may be entitled, 
by law to representation in the legislature, to elect one delegate 
to the said Convention"; that "the qualifications of the electors 
be the same with those now established by law ' ' ; that " the elec- 



64 Journal House of Delegates, October session of 1785, pages 66, 67. 

65 Madison, writing to Washington, December 7, 1786, says: "Mr. 
Henry, who has been hitherto the champion of the Federal party, has 
become a cold advocate, and, in the event of an actual sacrifice of the 
Mississippi by Congress, will unquestionably go over to the other side." 
Rives" Life and Times of Madison, II, 142. When we remember that 
the Mississippi was the western boundary of Virginia, it would be 
strange indeed that Mr. Henry could approve the conduct of Congress 
in closing that river for thirty years, and in clothing the body with new 
powers to carry such a scheme into effect. The cession of that river 
to Spain by the Northern States has its prototype only in the partition 
of Poland. 



VIRGINIA CONVENTION OF 1788. 57 

tion of delegates be held at the usual place for holding elections 
of members of the General Assembly, and be conducted by the 
usual officers"; that "the election shall be held in the month of 
March next on the first day of the court to be held lor each 
county, city, or corporation respectively, and that the persons so 
chosen shall assemble at the State House in Richmond on the 
fourth Monday of May next," which was afterwards changed 
for the first Monday in June. These resolutions should seem to 
have been specific enough for the purpose in view. But it was 
found out that they omitted an appropriation to defray the ex- 
penses of the proposed Convention ; and a bill was brought in 
for that object, and received the unanimous consent of both 
Houses. But this bill contained, likewise, a provision to defray 
the expenses of delegates to another general Federal Conven- 
tion, should such a body be convened. If this provision meant 
anything, it meant that a new General Convention was possible ; 
and, as the Assembly rarely looked to possibilities in its legis- 
lation, that it was probable. While the lovers of union saw in 
this provision a determination to secure a Federal alliance on 
the best terms and at every hazard, those who favored the new 
scheme placed upon it a different interpretation, 66 

66 Journal House of Delegates, October session of 1787, p. 77, and the 
Act in full in Hening's Statutes at Large, XII, 462. Bushrod Washington, 
then under thirty years of age, wrote to his uncle at the beginning of this 
session that he had met with in all his inquiries not one member opposed 
to the Federal Constitution except Mr. Henry, and that other members 
had heard of none either. When the provision for a new Convention 
mentioned in the bill was approved by the House of Delegates, his 
eyes were probably opened, for on the 7th of December, while the 
Assembly was still in session, he writes to his uncle as follows : " I am 
sorry to inform you that the Constitution has lost so considerably that 
it is doubted whether it has any longer a majority in its favor. From 
a vote that took place the other day, this would appear certain, though 
I cannot think it so decisive as its enemies consider it." Bushrod Wash- 
ington to George Washington, Dec. 7, 1787, copied from the Madison 
Files by Mr. Rives, II, 537. It thus appears that the Constitution, 
which had not an enemy at the opening of the session, had before its 
close a good many, and that the scales were nearly turned against it. 
It is probable that a very considerable number of the delegates had 
not seen the Constitution at the beginning of the session. Only four 
days had elapsed since any body had seen it ; and when we know that 
intelligence at that time took sixty days to travel a distance which may 



58 VIRGINIA CONVENTION OF 1788. 

be reached in six hours at the present day ; that some of the members 
had to travel from three to six hundred miles on horseback to reach 
Richmond ; that there were no mail facilities, and no newspapers save 
one or two small sheets in Richmond and Norfolk, which, from the un- 
certainty of delivery, were rarely taken in the county, the probability is 
that if the members had seen the Constitution, they had not read it 
deliberately. But when they did read it, we know that the result was 
a provision to defray the expenses of a Convention to revise, etc. This 
matter would hardly require the attention we have given it, if infer- 
ences in favor of the early popularity of the Constitution had not been 
drawn from the state of things at the meeting of the Assembly. For 
the letter of Bushrod, Washington, written at the opening of the ses- 
sion, see Rives' Madison, II, 535. 




CHAPTER II. 

At ten o'clock on Monday, the second day of June, 1788, the 
members began to assemble in the hall of the Old Capitol. It 
was plain that different emotions were felt by the friends and by 
the opponents of the Constitution. The friends of that instru- 
ment congratulated each other on the omens which they 
drew from the year in which their meeting was to take place. 
The year '88, they said, had ever been favorable to the liberties 
of the Anglo-Saxon race. It was in 1588, two hundred years 
before, when the invincible Spanish Armada, destined to subvert 
the liberties of Protestant England, then ruled by that virgin 
queen, the glory of her sex and name and race, who was the 
patron of Raleigh and the patron of American colonization, and 
from whom Virginia derived her name, was assailed by the winds 
of Heaven, and scattered over the face of the deep. 67 It was the 
recurrence of the year, the month, and almost the day, when, a 
century before, the cause of civil liberty and Protestant Chris- 
tianity won a signal victory in the acquittal of the seven bishops 
whose destruction had been decreed by a false and cruel king ; and 
when the celebrated letter inviting the Prince of Orange to make a 
descent on England, a letter which has been recently pronounced 
to be as significant a landmark in British history as Magna 
Charter itself, had been despatched to the Hague. Of all the 
kings who ever sate on the English throne, William Henry, 
Prince of Orange was most beloved by our fathers. Their 
attachment was shown in every form in which public gratitude 
seeks to exhibit its manifestations. The House of Burgesses 
called a county after the king, and called a county after the king 

67 See in Mr. Rush's memoranda of a residence at the Court of St. 
James, the opinions of modern English statesmen on the probable suc- 
cess of the Armada. 



60 VIRGINIA CONVENTION OF 1788. 

and his queen. 68 The metropolis of the Colony still perpetuates 
his name. Its great seminary, the charter of which was granted 
by William, and which received his fostering care, bore, as it 
bears still, his name and the name of his faithful consort. Inci- 
dents in his career were to be traced even in the nomenclature of 
the plantation. The light wherry bobbing on the waters of the 
York or the James, was called the Brill in honor of the gallant 
frigate in which the Deliverer sailed from Helvoetsluys to the 
harbor of Torbay. The love of the people long survived his 
natural life. A great county, created long after the death of 
William, and stretching far beyond the blue wall which now 
bounds it in the west to the shores of the Ohio, whether named 
from the colour of its soil, which is also the symbol of Protest- 
ant Christianity wherever the British race extends, or in honor 
of William, pleasingly recalls the name of the small principality 
on the banks of the Rhone, from which the Prince derived his 
familiar title. 69 An adjoining State has honored the name of 
Bertie, the first peer of the realm who joined the standard of 
William on the soil of Britain, and our own town of Abingdon 
illustrates the same event. 70 And the noble county of Halifax, 
though called apparently in honor of a man who filled a secre- 
tary's office in England at a later day, reminds us of that bril- 
liant and accomplished statesman, the unfaltering enemy of the 
House of Bourbon of that age when the sway of that House was 
supreme at Whitehall ; the friend of Protestant Christianity, 
from whose hand William received the Declaration of Right. 



68 Two years after the accession of William, a county was called after 
the Princess Anne, in honor of her claim as the successor of William 
and Mary, in the event of her surviving them, according to the parlia- 
mentary settlement of the crown. 

69 In the Topographical Analysis of Virginia for the year 1790-'!, in 
the Appendix of the last edition (published by J. W. Randolph, Rich- 
mond, 1853, 8vo. ) of the Notes on Virginia left for publication by Mr. 
Jefferson, the county of Orange, which was cut off from Spotsylvania 
in 1734, almost a third of a century after the death of William, is put 
down without the expression of a doubt as called in honor of William. 

70 The North Carolinians may say, and justly, that Bertie county was 
called in commemoration of the two Berties, in whom the proprietary 
rights of the Earl of Clarendon vested ; but as it was formed within 
twenty years of the death of William, I always associate it with his 
history. 



VIRGINIA CONVENTION OF 1788. 61 

When the intelligence of Barclay's plot against the life of the 
king, which had well-nigh proved successful, reached the Colony, 
the excitement was great. The news flew from plantation to 
plantation. The Burgesses instantly prepared an address in 
which they denounced the plotters and congratulated the king 
on his escape from the daggers of the Jacobite faction. Planters 
spurred in haste from their homes to the capital, and, bespattered 
with mud, hastened to the secretary's office, there to record their 
horror of the assassins and their joy at the safety of the king. 
The address, engrossed on parchment and duly incased, was 
despatched to London by the first packet, and was immediately 
placed in the hands of William. The fate of the address was 
peculiar. When it had been read in common with kindred 
memorials from all parts of the British empire, it was laid aside 
and forgotten. Nor was it till William had been sleeping for 
more than one hundred and sixty years in his ancestral tomb at 
the Hague, far from the dust of her on whose pure brow the 
diadem of Elizabeth had pressed so queenly, and to whose de- 
voted love more than to his own consummate statesmanship he 
owed his emperial crown, the venerable parchment was enrolled 
once more, and brought to public notice by a historian whose 
genius has invested the dim and distant past with the freshness 
of current time, and who has taught how the sober events of 
real life may be made as fascinating as the phantoms of romance 
or the dreams of poetry. Even to this hour the curious eye 
detects in the number of William Henrys that are still seen in 
the advertisements of the daily press, or the sign boards of the 
shops, and in our political and ecclesiastical bodies, the image of 
that strong affection with which our ancestors regarded the name 
of William Henry, Prince of Orange. One of his Virginia 
name-sakes has already received the honors of the Presidency 
of the United States. Another Virginia name-sake, but for 
extreme illness, 71 might have reached the same exalted station. 
Thus it was that any omen derived from the life of William was 
hailed by our fathers with delight. Nor did the friends of the 
Constitution fail to perceive another coincidence which might 
well happen. Should Virginia sustain the Constitution, that 
instrument would certainly take effect, and the new government 

71 William Henry Crawford. 



62 VIRGINIA CONVENTION OF 1788. 

% : 

would be inaugurated on the fourth of March of the following 
year, the centennial anniversary of the year, and almost the 
month when, in the banqueting room at Whitehall, Halifax at 
the head of the Lords, and Powle at the head of the Commons, 
presented to William and Mary the Declaration of Right, and 
when those sovereigns accepted that instrument which united for 
the first time in a common bond the title of the reigning dynasty 
and the liberties of the people of England. 72 

On the other hand, no cheering- sign greeted the opponents of 
the Constitution. Hitherto they had ever constituted a majority 
in the councils of the Commonwealth. They now heard bruited 
abroad the supposed majority by which that instrument would 
be carried, 73 and the names of the individuals who would fill the 
principal offices to be created by it. Still they were sustained 
by that steadfast courage which buoys up the patriot when he 
wrestles in defence of his country. They saw, indeed, in that 
stern gathering of military men, who composed more than one- 
fourth of the body, and of the not less formidable corps of 
judges, that their hopes of triumph were faint. They regarded 
the Constitution as the offspring of usurpation. They solemnly 
believed that of all the members of the Assembly who voted for 
the resolution convoking the Convention recently held in Phila- 
delphia, not a single individual, so far as they knew, looked be- 
yond a literal amendment of the Articles of Confederation ; and 
that, if any radical change had been avowed in debate, the reso- 
lution would have been indignantly rejected. They felt that a 
great wrong had been perpetrated upon the people. It had been 
ingeniously contrived that the work of the Convention should 



72 I was told of these congratulations among the members by a gen- 
tleman who heard them. The public men of the Revolution were more 
intimately acquainted with the minutest details of English history than 
their successors in the public councils of the present day. One reason 
may be that they had fewer books to read, and that, as colonists, it was 
their interest to know critically the remarkable epochs of English his- 
tory. For an allusion to the address of the tobacco-planters of Virginia 
to William on his escape from the assassin, see Macaulay 's History of 
England^ IV, 478, Butler's octavo edition, 1856. 

73 " The sanguine friends of the Constitution counted on a majority 
of twenty at their first meeting, which number they imagine will be 
greatly increased." Washington to Jay, June 8, 1788. Washington's 
Writings, IX, 374. 



VIRGINIA CONVENTION OF 1788. 63 

be referred to the action, not of the legislatures of the States, but 
to a convention to be called for the purpose ; while a nominal 
compliance with the act of Virginia was evinced by reporting 
the new scheme to the Congress for its recommendation to the 
States. This important innovation did not escape the sagacity 
of Richard Henry Lee, who was at the time a member of Con- 
gress, nor of the Congress as a body ; but, controlled by an ex- 
trinsic pressure, which it did not deem prudent to resist, it 
finally recommended the Constitution to the States, to be dis- 
cussed in the mode prescribed by the Convention that framed it. 
Still, when the Constitution was laid before the General Assem- 
bly at its October session of 1787, victory was not wholly be- 
yond its grasp. One of two methods of redress was yet within 
its reach. Either that body might refuse to receive the Consti- 
tution, and refer it back to the Congress as framed in palpable 
violation of the resolution of Congress, and of the resolution of 
Virginia instructing its delegates to the General Convention ; 
or, overlooking the recommendation of a special Convention for 
its ratification as surplusage, and regarding the Constitution as 
a mere amendment of the Articles of Confederation, might have 
rejected it forthwith ; but, unconscious of the crisis which im- 
pended over the country, or relying on its probable strength, 
the majority of the Assembly assented to the proposition con- 
tained in the new scheme, and called a Convention to pass upon 
it. The opponents of that scheme saw too late that this act was 
fatal. It mended all defects of form, and gave the instrument a 
legitimacy which it did not before possess. It not only took from 
the majority a weapon which, wielded by efficient hands, would 
have cloven down the defences of the minority, but it transferred 
the contest to a field in which the mighty influence of great 
names, heretofore the common property, would be exerted 
against it. That contest raged long and fiercely, and in whose 
favor it ultimately turned we shall presently see. But let us re- 
cord the proceedings of the body in the order in which they 
occurred. 

When the House was called to order, a motion was made that 
John Beckley 74 be appointed secretary to the Convention, who 

74 John Beckley was at various times Clerk of the House of Dele- 
gates and of the Senate of Virginia. On the organization of the House 



64 VIRGINIA CONVENTION OF 1788. 

% 

was accordingly chosen, and took his place at the table in front 
,/ of the chair. Paul Carrington now rose, and in a short ad- 
dress nominated Edmund Pendleton as President. 75 A few 
moments of anxious suspense followed. The opinions of Pen- 



of Representatives of the United States, he was elected clerk, and 
served from April i, 1789, to May 15, 1797, and from December 7, 1801, 
to October 26, 1807. If not born in England, he was educated at Eton, 
and I have heard Governor Tazewell say that he was a classmate of 
Fox. 

[Beckley, or Bickley, was born in Virginia, and his full name 
was John James, and 'he thus subscribed himself as a member of the 
Phi-Beta-Kappa Society of William and Mary College, in 1776. He 
was descended from the family of Bickley, or Bickleigh, anciently seated 
at Bickleigh, upon the river Ex., in Devonshire. The elder branch 
of this family removed into Sussex, and settled at Chidham. Other 
branches settled in the counties of Cambridge, Warwick and Middle- 
sex. Arms : Arg. a chev. embattled between three griffins' heads, 
erased gules. Henry Bickley of Chidham, county Essex, born 1503 i 
died 1570. Joseph Bickley, seventh in descent from Henry, of Chid- 
ham, patented, i6th June, 1727, 400 acres of land in King William county, 
Virginia. John James Bickley was probably the son of Sir William 
Bickley, Baronet, who died in Louisa county, Virginia, March gth, 1771. 
Bickley was not only the first Clerk of the House of Representatives, 
but also the first Librarian of Congress, serving from 1802 to 1807. ED.] 

75 Neither the Journal of the Convention nor Robertson reports the 
name of the member who nominated Pendleton. I heard, from a gen- 
tleman who was present at the time, that Judge Carrington made the 
motion ; but I am wholly at a loss for the name of the seconder, who, 
I suppose, was Wythe, from the fact that he was the only member 
likely to be brought out against Pendleton, and that Pendleton almost 
invariably called him to the chair in Committee of the Whole. I do 
not find that any of our early deliberative bodies have ever elected the 
chairman of the Committee of the Whole, which was formerly the 
usual practice in the House of Commons. The nomination of Pendle- 
ton was fixed upon beforehand, beyond doubt, and there can be as 
little doubt that Wythe was party to it. In the Convention of 1829-30 
it was arranged with the privity of Madison, and doubtless at his sug- 
gestion, that Mr. Monroe should be made president of the body, and 
he was so nominated by Mr. Madison himself; but the ablest members 
of the Convention were not aware of the design ; and when Mr. Madi- 
son made the nomination, those who sate near John Randolph and 
observed his countenance, say that he was on the eve of rising to op- 
pose it, not so much from hostility to Mr. Monroe as from a belief that 
the honor of the presidency should first be conferred on Madison. 



VIRGINIA CONVENTION OF 1788. 65 

dleton were well known to be in favor of the Constitution ; and 
the election of president presented a fair opportunity of testing 
the relative strength of parties. In the selection of their candi- 
date, the Federalists had chosen a name which, in the pure and 
benevolent character of him who bore it, in his long and valua- 
ble service in the public councils, and in his venerable age, was 
known and honored throughout the Commonwealth, and which, 
with the exception of that of one who had long been his com- 
peer in the House of Burgesses, at the bar of the General Court, 
in the Conventions of 1775 and 1776, in the Congress, and on 
the bench, may be said then to have stood almost alone in the 
civil service of his country. 76 But George Wythe was now 
known to approve the Constitution, and so far from opposing 
Pendleton would sustain him by his vote. Had Wythe been of 
the opposite party, the opponents of the Constitution would 
doubtless have ventured a contest. Nor is it certain that the 
contest would not have been successful. Wythe was, as a man, 
more popular than Pendleton; many of the members had been" 
his scholars, and loved him with an affection which neither time 
nor distrust could weaken ; and he would certainly have carried 
with him the votes of the smaller counties on tide, which had 
ever regarded him with warm attachment, and had long counted 
his fame among their most precious possessions. The contest, 
too,-might have been waged without wounding the delicacy of 
Pendleton, who was unable to perform the duties of the presi- 
ding officer unless allowed to sit in the chair; and opposition 
may have taken the hue of respect for his physical infirmities. 
But no name was brought forward by the opponents of the Con- 
stitution, and Pendleton was elected without a division. 

Twelve years which had elapsed since the adjournment of the 
Convention of 1776 had left their mark upon the President. He 
was in his sixty-seventh year, and his intellectual powers, quick- 
ened by the discussions in the court in which he had presided 
since its organization, were undiminished ; but there was a sad 



76 President Pendleton, who was also president of the Court of Ap- 
peals, was now in his sixty-seventh year, but, from the breaking of a 
thigh-bone ten or eleven years before, which prevented him from 
taking exercise or moving without a crutch, looked much older than 
he was. 



66 VIRGINIA 'CONVENTION OF 1788. 

change in his outward form. Some individuals present remem- 
bered him as he was in the House of Burgesses more than a 
quarter of a century past ; one member had seen him in the 
public councils more than the third of a century ago ; and not a 
few of the members could recall him as with a buoyant and 
graceful step he walked from the floor of the Convention of 
December, 1775, and of May, 1776, to the chair, escorted in the 
former body by Paul Carrington and James Mercer, and in the 
latter by the venerable Richard Bland and the inflexible Archi- 
bald Gary. It was a touching sight to behold him, his earlier 
and elder compeers long laid to rest, as, with his shrunken form 
upheld by crutches, he now passed between Carrington and 
Wythe to the chair. He made an acknowledgment of the honor 
conferred upon him in a few plain words not otherwise remark- 
able than as being the first ever addressed to a deliberate Assem- 
bly of Virginia from a sitting position. 77 

The Rev. Abner Waugh was, on motion of Paul Carrington, 
unanimously elected chaplain, and "was ordered to attend every 
morning to read prayers, immediately after the bell should be 
rung for calling the Convention. 78 

When the Convention had elected the other officers of the 
body, 79 had appointed a Committee of Privileges and Elections, 80 



77 There was no formal resolution but rather a general understanding 
that Pendleton was to sit in addressing or putting a question to the 
house. It is probable that Carrington, who was his associate on the 
bench of the Court of Appeals, and who knew his physical infirmities, 
may have alluded to the subject in his nominating speech. Robertson, 
in his Debates, thus alludes to the election of Pendleton : " He was 
unanimously elected president, who being seated in the chair, thanked 
the Convention for the honor conferred upon him, and strongly recom- 
mended to the members to use the utmost moderation and temper in 
their deliberations on the great and important subject now before 
them." Pendleton, in the sketch of his own life, mentions gratefully 
that he was allowed to sit while performing the duties of the chair. 

78 The Rev. Abner Waugh, as early as 1774, had been the rector of 
Saint Mary in the county of Caroline, and survived to the year 1806, 
when he was chosen rector of St. George's parish, Fredericksburg, 
but finding his health insufficient for the performance of his duty, he 
soon resigned and died a short time after at " Hazlewood." His 
valedictory to his parishioners breathes the devotion of a Christian. 

79 The other officers were William Drinkard, Sr., and William Drink- 



VIRGINIA CONVENTION OF 1788. 67 

and had chosen a printer of its proceedings, it adjourned, on the 
motion of George Mason to the next day at eleven, then to 
meet in the New Academy on Shockoe Hill. 

On the morning of the next day it met in the New Academy, a 
large wooden structure reared by the Chevalier Quesnay, a cap- 
tain in the army of the Revolution, for the promotion of the 
arts and literature of the rising Commonwealth. Its corner- 
stone had been laid two years before with great ceremony in 
presence of the State and town authorities ; and the scheme of 
the institution had received the sanction of the French Academy 
of Sciences in a formal report endorsed by the famous Levoisier 
a short time before he was led to the guillotine, and which was 
designed to be the fountain from which the arts and sciences in 
the New World would soon begin to flow, but which, like most of 
the schemes of foreign proprietors in a new country, was des- 
tined to a speedy dissolution. The commodious hall of this 
building was well adapted to the purposes of the Convention, 
and was now filled to overflowing. 81 

ard, Jr.. doorkeepers; Edmund Pehdleton, Jr., clerk of the Committee 
of Elections ; Augustine Davis, printer ; and on the following day 
William Pierce was elected sergeant-at-arms, and Daniel Hicks, one of 
the doorkeepers. Augustine Davis was the editor and proprietor of 
the Virginia Gazette, and somewhat later postmaster of Richmond. 
His printing office was in the basement of a house at the corner of Main 
and Eleventh streets, which was subsequently the office of the Whig, 
founded by John Hampden Pleasants, (who first used a press purchased 
from Davis) and successively of the Enquirer, influential organs in the 
past respectively of the Whig and Democratic parties. ED. 

80 The Committee of Privileges and Elections were so distinguished 
a body that I annex their names, with the remark that such an array 
of genius, talents, and public and private worth had not been seen 
before, nor has it been seen since, on such a committee in Virginia : 
Benjamin Harrison^ George Mason, His Excellency Governor Ran- 
dolph, Patrick Henry, George Nicholas, John Marshall, Paul Carring- 
ton, John Tyler, Alexander White, John Blair, Theodore Bland, Wil- 
liam Grayson, Daniel Fisher, Thomas Mathews, John Jones, George 
Wythe, William Cabell, James Taylor of Caroline, Gabriel Jones, Fran- 
cis Corbin, James Innes, James Monroe, Henry Lee, and Cuthbert Bul- 
litt. The committee is appointed with great liberality, the friends of 
the Constitution having a majority of two only. 

81 The Academy grounds included the square, bounded by Broad and 
Marshall and Eleventh and Twelfth streets, on the lower portion of 



68 VIRGINIA CONVENTION OF 1788. 

After the transaction of some ordinary business, Benjamin 
Harrison moved that all the papers relative to the Constitution 

which stood the Monumental Church and the Medical College. The 
Academy stood midway in the square fronting Broad street. " L? Acad- 
emic Des Etats Unis De UAmerique" was an attempt, growing out 
of the French alliance with the United States, to plant in Richmond a 
kind of French Academy of the arts and sciences, with branch acad- 
emies in Baltimore, Philadelphia, and New York. The institution was 
to be at once national and international. It was to be affiliated with 
the royal societies of London, Paris, Bruxelles, and other learned bodies 
in Europe. It was to be composed of a president, vice-president, six 
counsellors, a treasurer-general, a secretary and a recorder, an agent 
for taking European subscriptions, French professors, masters, artists- 
in-chief attached to the Academy, twenty-five resident and one hun- 
dred and seventy-five non-resident associates, selected from the best 
talent of the Old World and of the New. The Academy proposed to 
publish yearly from its own press in Paris, an almanac. The Academy 
was to show its zeal for science by communicating to France and other 
European countries a knowledge of the natural products of North 
America. The museums and cabinets of the Old World were to be 
enriched by specimens of the flora and fauna of a country as yet undis- 
covered by men of science. The proprietor of the brilliant scheme 
was the Chevalier Alexander Maria Quesnay de Beaurepaire, grand- 
son of the famous French philosopher and economist, Dr. Quesnay, 
who was the court physician of Louis XV. Chevalier Quesnay had 
served as a captain in Virginia in 1777-78 in the war of the Revolution. 
The idea of founding the Academy was suggested to him in 1778 by 
John Page, of "Rosewell," then Lieutenant-Governor of Virginia, and 
himself devoted to scientific investigation. Quesnay succeeded in 
raising by subscription the sum of 60,000 francs, the subscribers in Vir- 
ginia embracing nearly one hundred prominent names. The corner- 
stone of the building, which was of wood, was laid with Masonic cere- 
monies July 8th, 1786. Having founded and organized his Academy 
under the most distinguished auspices, Quesnay returned to Paris and 
succeeded in enlisting in support of his plan many learned and dis- 
tinguished men of France and England. The French Revolution, 
however, put an end to the scheme. The Academy building was early 
converted into a theatre, which was destroyed by fire, but a new theatre 
was erected in the rear of the old. This new building was also de- 
stroyed by fire on the night of December 26th, 1811, when seventy-two 
persons perished in the flames. The Monumental church commemo- 
rates the disaster, and its portico covers the tomb and ashes of most of 
its victims. A valuable sketch of Quesnay's enlightened projection, 
chiefly drawn from his curious ^ Memoir e concirnant r Academie des 
Sciences et Beaux Arts des Etats Unis d'Amerique, &tablic d Rich- 



VIRGINIA CONVENTION OF 1788. 69 

should be read. John Tyler observed that before any papers 
were read, certain rules and regulations should be established to 
govern the Convention in its deliberations. Edmund Randolph 
fully concurred in the propriety of establishing rules ; but, as 
this was a subject which would invoke the Convention in debate, 
he recommended that the rules of the House of Delegates, as 
far as they were applicable, should be observed. Tyler had no 
objection to the mode suggested by Randolph ; accordingly, the 
rules of the House of Delegates, as far as they were applicable, 
were adopted by the present, as they had been by all subsequent 
Conventions. 

On motion, "the resolutions of Congress of the twenty-eighth 
of September previous, 82 together with the report of the Federal 
Convention, lately held in Philadelphia, the resolutions of the 
General Assembly of the twenty-fifth of October last, and the 
Act of the General Assembly, entitled an Act concerning the 
Convention to be held in June next," were now read, when 
George Mason arose to address the House. In an instant the 
insensible hum of the body was hushed, and the eyes of all were 
fixed upon him. How he appeared that day as he rose in that 
large assemblage, his once raven hair white as snow, his stalwart 
figure, attired in deep mourning, still erect, his black eyes fairly 
flashing forth the flame that burned in his bosom, the tones of 
his voice deliberate and full as when, in the first House of Dele- 
gates, he sought to sweep from the statute book those obliquities 
which marred the beauty of the young republic, or uttered that 
withering sarcasm which tinges his portrait by the hand of Jef- 
ferson, we have heard from the lips, and seen reflected from the 
moistened eyes of trembling age. His reputation as the author 
of the Declaration of Rights and of the first Constitution of a 
free Commonwealth ; as the responsible director of some of the 

mond," was published in The Academy, December, 1887, Vol. II, No. 9, 
pp. 403, 412, by Dr. Herbert B. Adams, of Johns-Hopkins University. 
A copy of Quesnay's rare " Memoire " is in the library of the State of 
Virginia. Quesnay complains bitterly that all his letters relating to his 
service in the American army had been stolen from a pigeon-hole in 
Governor Henry's desk, and his promotion thus prevented. 

82 This resolution was merely formal, ordering the Constitution to be 
transmitted to the legislatures of the States. It may be seen in Fo- 
brell's edition of the Journals of the old Congress, IX, no. 



70 VIRGINIA CONVENTION OF 1788. 

leading measures of general legislation during the war and after 
its close; his position as a prominent member of the General 
Convention that framed the Constitution, which had been adopted 
under his solemn protest, and his well-known resolve to oppose 
the ratification with all his acknowledged abilities, were calcu- 
lated to arrest attention. He was sixty-two years old, and had 
not been more than twelve years continuously in the public coun- 
cils, 83 but from his entrance into public life he was confessedly 
the first man in every assembly of which he was a member, 
though rarely seen on the floor except on great occasions. But 
the interest with which he was now watched was heightened by 
another cause. From his lips was anxiously awaited by all par- 
ties the programme of the war which was to be waged against 
the new system. He rose to a matter of form. " I hope and 
trust," he said, " that this Convention, appointed by the people, 
on this great occasion, for securing, as far as possible, to the 
latest generations their happiness and liberty, will freely and 
fully investigate this important subject. For this purpose I 
humbly conceive the fullest and clearest investigation indispensa- 
bly necessary, and that we ought not to be bound by any general 
rules whatsoever. The curse denounced by the Divine ven- 
geance will be small, compared with what will justly fall on us, 
if from any sinister views we obstruct the fullest inquiry. This 
subject ought, therefore, to obtain the fullest discussion, clause by 
clause, before any general previous question be put, nor ought it 
to be precluded by any other question." Tyler then moved that 
the Convention should resolve itself into a Committee of the 
Whole to take into consideration the proposed plan of govern- 
ment, in order to have a fairer opportunity of examining its 
merits. Mason rose again, and after recapitulating his reasons 
urging a full discussion, clause by clause, concluded by, giving 
his consent to the motion made by Tyler. Madison concurred 
with Mason in going into a full and free investigation of the sub- 
ject before them, and said that he had no objection to the plan 
proposed. Mason then reduced to writing his motion, which 
was adopted by the House. 



83 Colonel Mason was a member of the House of Burgesses as early 
as 1758, with Pendleton and Wythe ; but did not adopt the favorite cus- 
tom in the Colony of holding a seat for a series of years. Even during 
the past twelve years he was not always a member. 



VIRGINIA CONVENTION OF 1788. 71 

Tyler moved that the Convention resolve itself into a Com- 
mittee of the Whole the next day to take the plan of government 
under consideration, but was opposed by Henry Lee, of West- 
moreland, who urged the propriety of entering into the discus- 
sion at once. Mason rose to sustain the motion of Tyler, and 
pressed the impolicy of running precipitately into the discussion 
of a great measure, when the Convention was not in possession 
of the proper means. He was sustained by Benjamin Harrison, 
and the debate was closed by a rejoinder from Lee. The motion 
of Tyler prevailed, and it was resolved "that this Convention 
will to-morrow resolve itself into a committee of the whole Con- 
vention, to take into consideration the proposed Constitution of 
Government of the United States." 84 

But, if the motion of Mason was acceptable to his opponents, \ 
it was especially distasteful to his friends. It had been foreseen / 
that there would be some confusion among the opponents of the 
Constitution in respect of the line of policy to be pursued in the 
outset of the campaign. Mason had been a member of the "^ 
General Convention, had met in conclave with the Virginia dele- 
gation in Philadelphia, and had not offered any opposition to the 
resolutions which were approved by the delegation, which were 
proposed by Randolph to the General Convention as its basis of j 
action, and which clearly looked to an overthrow of the existing 
Federal system. He could not consequently take the ground 
which his colleagues in opposition, Henry in particular, thought 
most available, of protesting against the usurpation of a body, 
which, charged with the office of proposing amendments to the 



84 It is interesting to see how often history repeats itself. The main 
argument of Lee for hastening a discussion, was that the General 
Assembly, in whose hall the Convention was sitting, would meet on the 
23d of the month ; and as the Convention did not adjourn till the 27th, 
the two bodies were in session at the same time. The Convention of 
1829-30, also ran into the meeting of the General Assembly, and the 
two bodies sate at the same time for a month and a half. As in both 
Conventions there were members who were also members of the 
Assembly, and, as such, were entitled to double pay, it would be curious 
to look over the old rolls and see who took and did not take double 
allowance. Of the members of the Convention of 1829-30 who were 
in the Assembly, though they really had double duty to perform in 
earnest, I do not know that more than one member received double 
pay, albeit it was unquestionably due. 



72 VIRGINIA* CONVENTION OF 1788. 

existing government, had recommended an entirely new govern- 
ment in its stead. He may, however, have deemed the Act of 
Assembly convoking the present Convention as a substantial 
endorsement of the Act of the General Convention ; and with 
his usual sagacity may have thought it prudent, apart from any 
personal feeling in the case, to arrest a contest which he foresaw 
would result in the defeat of his friends. At this late day, unin- 
fluenced by the excitement of the times, we are able to appreciate 
the tactics of the divisions of the anti-Federal party at their 
proper value. The main object of Mason was to prevent a pre- 
mature committal of the House by a vote on any separate part 
of the Constitution; for he well knew that an approval of one 
part would be urged argumentatively to obtain the approval of 
another part, and that, if the Constitution were approved in 
detail, it would be approved as a whole; and so far as his motion 
postponed intermediate voting, it was wise and well-timed. But 
in requiring the Constitution to be discussed clause by clause, he 
went beyond his legitimate purpose, and played into the hands 
of his opponents. The Federal Constitution, to be opposed 
successfully, must be discussed on the ground either of its unfit- 
ness as a whole to attain the end of its creation, or on the dan- 
gerous tendency of its various provisions. To preclude the 
debate on the first head, and to narrow the debate on the second 
to the consideration of a single clause, was almost to resign the 
benefits of discussion to the friends of the system. The resolu- 
tion was capable of being wielded with fatal effect, and, if enforced 
by a skillful and stern parliamentarian, would have effectually 
prevented all freedom of debate. The anti-Federalists believed 
that the Constitution in its general scope was false to liberty; yet, 
by the resolution, they were to be strictly confined to a discussion, 
not of its general tendency, but of the tendency of a particular 
clause. Now, it is barely possible that a single provision of a 
vast system, when defended at length by an able hand, cannot be 
made to assume a plausible shape in the eyes of a mixed assem- 
bly. Either its obvious meaning will be denied, or an equivocal 
one will be attached to its terms. The Federalists were aware 
of the advantages of such a warfare, and hence the readiness 
with which Madison rose to accept the proposal. 85 Indeed, it is 

85 Madison wrote on the 4th to Washington a letter, of which the 



VIRGINIA CONVENTION OF 1788. 73 

a topic of interest now to observe how often the dogged perti- 
nacity of George Nicholas and Madison, who acted the part of 
whippers-in during the discussion, was rebuked by the indignant 
eloquence of Mason and Henry. 86 It is true that the timely 
movement of Tyler in transferring the debate from the House to 
the Committee of the Whole in some measure counteracted the 
ill effects of Mason's motion ; but its evil influence was sensibly 
felt by his friends throughout the session. 

The opening of the session on the third day 87 was awaited by 
a large assemblage. Every seat was filled, while hundreds of 
respectable persons remained standing in the passages and at the 
doors. Among the spectators from every part of the Common- 
wealth were young men of promise, eager to behold the states- 
men who had long served their country with distinction, whose 
names were connected with every important civil and military 
event of the Revolution; and some of whom were to be seen 
now for the last time in a public body, and must in the order of 
nature soon pass away. It is not unworthy of remark, as an 
illustration of the effects wrought by the exhibition of genius 
and talents on great occasions, that some of those young men 
who were so intently watching the progress of the debates, as if 
touched by the inspiration of the scene, were themselves to lead 
the deliberations of public bodies and to control the councils of 
the State and of the Union for more than the third of a century 
to come. 88 

following is an extract: k 'I found, contrary to my expectations, that 
not a very full House had been made on the first day, but that it had 
proceeded to the appointment of the president and other officers. Mr. 
Pendleton was put into the chair without opposition. Yesterday little 
more was done than settling some forms, and resolving that no ques- 
tion, general or particular, should be propounded till the whole plan 
should be considered and debated clause by clause. This was moved 
by Colonel Mason, and, contrary to his expectations, concurred in by 
the other side." Madison to General Washington, Writings of Wash- 
ington, IX, 370, note. 

86 Robertson's Debates, page 36, et passim, I use Robertson's Debates, 
edition of 1805; the handsome edition of the Debates following the 
entire third volume of Elliott, published in 1859 under the sanction of 
Congress, not having then appeared. 

87 Wednesday, June 4, 1788. 

88 No such thing as a published speech was then known in the coun- 



74 VIRGINIA CONVENTION OF 1788. 

M 

It was the general expectation that Henry would open the 
debate on the part of the opponents of the Constitution ; but 
those who knew the Conflicting positions held by Mason and 
himself, and had watched him closely on the preceding day, 
anticipated a skirmish before the regular debate began; and in 
this expectation they were not disappointed. When the House 
had received and acted upon the reports of the Committee of 
Elections, the order of the day was read, and the Convention 
went into Committee of the Whole. Wythe was called to the 
chair. 89 Next to Pendleton, his fame as a jurist and a statesman 
had been more widely diffused at home and abroad than that of 
any other member. He had been longest in the public service ; 
had long been a member of the House of Burgesses, which he 
entered as early as 1758 ; had been the intimate and confidential 



try, and the only means of forming an opinion of the powers of a pub- 
lic man was to hear him speak. Brief and imperfect as Robertson } s 
Debates are, they present the fullest report of speeches then known in 
our annals. Hence, the clever young men of the State crowded to 
Richmond, all of them on horseback. William B. Giles was among 
the spectators. 

89 I have never met with an instance in our parliamentary proceedings 
of the election of the chairman of the Committee of the Whole by the 
House. In the House of Burgesses the chairman, as the name implies, 
literally sate in a chair, none but the Speaker, who had been approved 
by the Governor, and was in some sense the representative of majesty, 
occupying the Speaker's seat. In Committee of the Whole, the mace, 
which was always placed on the clerk's table in regular session, was 
put under the table. I confess that I have not been able to trace satis- 
factorily the fate of the mace of the House of Burgesses. I have been 
told that it was melted at some date later than 1790. There was a 
member of the Senate from one of the tidewater counties who made 
great efforts to get a mace from the Senate. The city of Norfolk still 
possesses its ancient silver mace presented to the corporation by Gov- 
ernor Gooch in 1736 or thereabouts. This mace, of which a description 
and a cut is given in The Dinwiddie Papers, Vol. I {Virginia Historical 
Collections, Vol. Ill), pp. xiv, xv, was "The gift of Hon. Robert Din- 
widdie, Lieutenant-Governor of Virginia, to the corporation of Nor- 
folk, 1753." For notice of further examples of the mace in Virginia 
and other British-American colonies, see the same note. The mace of 
the House of Burgesses, which was by purchase saved from the 
"smelter's pot" by Colonel William Heth, who transformed it into a 
drinking cup, is now in the possession of his grand nephew, Harry 
Heth, late Major-General C. S. Army. ED. 



VIRGINIA CONVENTION OF 1788. 75 

friend of Fauquier and Botetourt, and the associate of all the 
royal governors of Virginia who in his time had any pretensions 
as gentlemen and scholars ; had spoken in the great debate on the 
Declaration of Independence in Congress ; had voted for the 
Declaration of Rights and the Constitution of Virginia ; had 
filled the chair of the House of Delegates, when Pendleton, suf- 
fering from his recent accident, was detained at home, and had 
acquired in the performance of his various duties that knowl. 
edge of the law of parliament and those habits of a presiding 
officer, which were now indispensable to an occupant of the chair. 
His position in one respect was unique. As a professor of Wil- 
liam and Mary, he had trained some of the ablest members of 
the House, who regarded him with a veneration greater than 
that, great as it was, which was shared by the public at large. 90 
He had reached his sixty-second year; yet as he moved with a 
brisk and graceful step from the floor to the chair, his small and 
erect stature presented a pleasing image of a fresh and healthy 
old man. In a front view, as he sate in the chair, he appeared to 
be bald ; but his gray hair grew thick behind, and instead of 
being wrapped with a ribbon, as was then and many years later 
the universal custom, descended to his neck, and rose in a broad 
curl He had not yet given way to that disarrangement of his 
apparel which crept upon him in extreme age, and was arrayed 
in the neat and simple dress that has come down to us in the 
portrait engraved by Longacre. 91 Though never robust, he was 
now more able to bear, in a physical sense, the formidable ordeal 
of the chair than Pendleton. He had been a member of the 
General Convention which framed the Constitution, and had 
assented to the Virginia platform presented to that body ; but, 
as he was absent when that instrument was subscribed by the 
members, his name did not appear on its roll. He was, however, 
in favor of its ratification. 

When Wythe had taken his seat, before he had ordered the 
clerk to read the first clause of the Constitution, Henry was on 
the floor. It was observed that age had made itself felt in the 

90 Among the numerous pupils of Wythe in the Convention were 
Chief Justice Marshall, President Monroe, George and Wilson Gary 
Nicholas, Read, Innes, Lewis, Samuel Jordan Cabell, &c. 

91 A single-breasted coat, with a standing collar, a single-breasted 
vest, and a white cravat buckled behind. 



76 VIRGINIA CONVENTION OF. 1788. 

appearance of this early and constant favorite of the people. 
He should have been in the vigor of life, for he had just entered 
his fifty-third year; but he had encountered many hardships in 
his vagrant life as a practising attorney, and had endured much 
trouble as a man and as a patriot. There was a perceptible stoop 
in his shoulders, and he wore glasses. His hair he had lost in 
early life, and its place was supplied by a brown wig, the adjust- 
ment of which, when under high excitement, was, as alleged by 
his contemporaries, a frequent gesture.' 2 He had doubtless 
suffered at intervals from a painful organic disease which more 
than any other racks the system, and which eleven years later 
brought him to the grave. But his voice had not yet lost its 
wondrous magic, 93 and his intellectual powers knew no decline. 
He was to display before the adjournment an ability in debate 
and a splendor of eloquence, which surpassed all his previous 
efforts, and which have rarely been exhibited in a public assem- 
bly. 

Neither Mason nor Henry was skilled in the law of parlia- 
ment; but it is probable that Henry, in his solitary drive from 
Prince Edward, had formed some outline of the course which he 
intended to pursue. It was generally known that the Federal- 
ists believed that they made up a majority of the House; and he 
well knew that if Pendleton were nominated, as he certainly 
would be, for the chair, he would be elected above any com- 
petitor. Such a man carried with him not only the weight of 
his party, but his weight as an individual. To oppose him, there- 
fore, was to risk a signal defeat; and from a signal defeat in the 
onset it might not be easy to recover. The election of president 
was allowed accordingly to pass in silence. The next plausible 



92 I have heard Governor Tazewell say that he has seen Henry, in 
animated debate, twirl his wig round his head several times in rapid 
succession. Our fathers had better eyes than their descendants. 
Glasses were rarely worn. Colonel Thomas Lewis was the only mem- 
ber of the Convention that wore them habitually. Patrick Henry and 
Judge Wilson, of Pennsylvania, are the only two men of the Revolu- 
tionary era who are painted with glasses. Franklin wore them in the 
Federal Convention, but he was over eighty at that time. 

93 He told his family that he lost his voice in pleading the British 
Debts' cause in 1791 ; but that loss none who heard him speak at any 
time afterwards could detect. 



VIRGINIA CONVENTION OF 1788. 77 

ground of attack was to be sought in the various Acts of Assem- 
bly which had called the General Convention into existence. 
The most important of these acts had been plainly violated by 
that body, and the new scheme was the offspring of usurpation ; 
and Henry thought that, if this view was presented in all its 
fearful extent by his friends, the result might yet be an immedi- 
ate rejection of the new government. But he had to deal with 
one of the wariest parliamentarians of that age. When, therefore, 
Henry moved, as he now proceeded to do, that the various Acts 
of Assembly should be read by the clerk, evidently intending to 
follow up the reading with a speech, Pendleton, who, foreseeing 
the game, was on the watch, and who feared the effect of one of 
Henry's speeches in the yet unfixed state of parties, was in- 
stantly helped on his crutches, and opposed the reading. 94 He 
did. not speak more than fifteen minutes; but the effect of his 
speech was conclusive. It was an occasion of all others best 
adapted to his talents. The discussion in his view involved no 
great principle to be treated at large, but the interpretation of an 
Act of Assembly. He occupied the ground at once on which 
Henry would have sought to place him by force. He boldly 
assumed the position that, whatever might be the meaning of 
the Act calling the General Convention, the Act of Assembly con- 
voking the present Convention for the express purpose of dis- 
cussing the paper on the table was paramount to all other Acts, 
and was the rule of action prescribed by the people. Did this 
speech exist as spoken by Pendleton, posterity might read in the 
speech itself and in its circumstances the peculiarities of his 
mind and character. Assign him the ground he was to occupy 
plant him on the rampart of an Act of Assembly and he was 
invincible. Such was the effect of his speech that Henry made 
no reply, and not caring to court a defeat, which he saw was 
inevitable, withdrew his resolution. 

But, if Henry had a favorite plan, the Federalists had one of 
their own ; and that plan was to discuss the Constitution, clause 
by clause, in the House under the eye of a president to-be elected 
by themselves ; a mode which had already been adopted on the 

94 The general reader may perhaps not know that the president or 
speaker of a House on the Committee of the Whole sits with the mem- 
bers in the body of the House, and is free to engage in the debates, 
which he cannot do when in the chair. 



78 VIRGINIA^ CONVENTION OF 1788. 

motion of Mason, who little dreamed that he was treading in the 
tracks of his foes. Fortunately for the opponents of the Con- 
stitution, Tyler, who, as Speaker of the House of Delegates, had 
been familiar with the tactics of deliberative bodies, and who 
was opposed to the new scheme, had, as if in anticipation of the 
purposes of the Federalists, succeeded in transferring the dis- 
cussions to the Committee of the Whole. 

The clerk proceeded to read the preamble of the Constitution 
and the two first sections of the first article. When he had read 
them, George Nicholas rose to explain and defend them. There 
was a prestige in the name of Nicholas, and in the forensic repu- 
tation of the gentleman who now bore it, which placed him in 
the front rank of what may be called the second growth of emi- 
nent men who attained to distinction during the Revolution, and 
the brightness of whose genius has been reflected even in .our 
own times. The eldest son of the venerable patriot who so long 
held the keys of the treasury, and whose death, in the midst of 
the Revolution in which he had freely embarked his great ser- 
vices and a reputation that in the eyes of his compatriots ap- 
proached to sanctity, had sealed his fame as a martyr in his 
country's cause, George Nicholas entered public life under favor- 
able auspices. Born in the city of Williamsburg, and nurtured 
in that institution which has been for more than a century and a 
half the gem of the ancient metropolis, he early engaged in the 
study of the law, and soon rose to the highest distinction at 
the bar. Nor was his professional skill his only passport to pub- 
lic attention. He had entered the army at the beginning of the 
war, and displayed more than once a capacity for military ser- 
vice that received the approbation of his superiors. But it was 
in the House of Delegates that he gained his highest distinction. 
During the war, and until the meeting of the present Convention, 
he held a prominent place in that body, which he almost entirely 
controlled, now threatening with impeachment the first execu- 
tive officer of the Commonwealth, now planning the laws which 
were to constitute the titles to land in that immense principality 
which reached from the Alleghany to the Mississippi. 95 His 



95 Benjamin Watkins Leigh has been heard to say that George Mason 
drafted the first land law ; but it is certain that George Nicholas ex- 
erted a greater influence in shaping the land laws than any other man. 



VIRGINIA CONVENTION OF 1788. 79 

appearance was far from prepossessing. His stature was low, 
ungainly, and deformed with fat. His head was bald, his nose 
curved ; a gray eye glanced from beneath his shaggy brows ; 
and his voice, though strong and clear, was without modulation. 
His address, which had been polished by long and intimate asso- 
ciation in the most refined circles of the Colony, to which by 
birth he belonged, and of the Commonwealth ; his minute ac- 
quaintance with every topic of local legislation ; his ready com- 
mand of that historical knowledge within the range of a well- 
educated lawyer of the old regime ; perfect self-possession, which 
had been acquired in many a contest at the bar and in the House 
of Delegates with most of the able men ndw opposed to him, 
and which enabled him to wield at will a robust logic in debate 
which few cared to encounter, made him one of the most prom- 
ising of that group of rising statesmen who had caught their 
inspiration from the lips of Wythe. Without one ray of fancy 
gleaming throughout his discourse, without action, unless the use 
of his right hand and forefinger, as if he were demonstrating a 
proposition on a black-board, be so called, by the force of argu- 
ment applied to his subject as if the sections of the Constitution 
were sections of an Act of Assembly, he kept that audience, the 
most intellectual, perhaps, ever gathered during that century 
under a single roof in the Colony or in the Commonwealth, 
anxious as it was for the appearance of the elder members in the 
debate, for more than two hours in rapt attention. His speech 
is one of the fullest reported by Robertson, and its strict and 
masterly examination of the two sections before the House, ex- 
plains the interest which it awakened and which it sustained. 96 
Henry, who probably saw his mistake in allowing one of the 

96 See Robertson's Debates of the Virginia Convention of 1788, page 
18. I have alluded to the fatness of Nicholas. As he continued a 
prominent politician to his death in Kentucky in 1799, and as it was 
hard to meet his argument, his opponents resorted to caricature, and 
pictured him as broad as he was long. A friend told me that he once 
saw Mr. Madison laugh till the tears came into his eyes at a caricature 
of George Nicholas, which represented him k( as a plum pudding with 
legs to it." He was probably one of the fattest lawyers since the days 
of his namesake Sir Nicholas Bacon, the lord keeper, who was so blown 
by the mere effort of taking his seat in the court of chancery that it 
was understood that no lawyer should address him until he had sig- 
nified the recovery of his wind by three taps of his cane on the floor. 



80 VIRGINIA CONVENTION OF 1788. 

ablest friends of the Constitution to be the first to reach the ear 
of the House, followed Nicholas on the debate. If Nicholas 
adhered to the letter of the two sections, Henry did not follow 
his example; nor did he allude to those sections or to the speech 
of Nicholas, but spoke as if his resolution had been adopted, and 
the desired information had been obtained by the committee. 
He began by saying that the public mind as well as his own was 
extremely weary at the proposed change of government. " Give 
me leave," he said, "to form one of the number of those who 
wish to be thoroughly acquainted with the reasons of this peril- 
ous and uneasy situation, and \\hy we are brought hither to 
decide on this great national question. I consider myself as the 
servant of the people of this Commonwealth, as a sentinel over 
their rights, liberty and happiness. I represent their feelings 
when I say that they are exceedingly uneasy, being brought 
from that state of full security which they enjoyed to the present 
delusive appearance of things. A year ago the minds of our 
citizens were in perfect repose. Before the meeting of the late 
Federal Convention at Philadelphia, a general peace and an uni- 
versal tranquility prevailed in this country ; but since that period, 
the people are exceedingly uneasy and disquieted. When I 
wished for an appointment to this Convention, my mind was 
extremely agitated for the situation of public affairs. I conceive 
the public to be in extreme danger. If our situation be thus 
uneasy, whence has arisen this fearful jeopardy ? It arises from 
this fatal system. It arises from a proposal to change our gov- 
ernment a proposal that goes to the annihilation of the most 
solemn engagements of the States a proposal of establishing 
nine States into a confederacy, to the eventual exclusion of four 
States. It goes to the annihilation of those solemn treaties we 
have formed with foreign nations. The present circumstances 
of France the good offices rendered us by that kingdom re- 
quire our most faithful and most punctual adherence to our treaty 
with her. We are in alliance with the Spaniards, the Dutch, the 
Prussians ; those treaties bound us as thirteen States confederated 
together. Yet here is a proposal to sever that confederacy. Is 
it possible that we shall abandon all our treaties and national 
engagements? And for what? I expected to have heard the 
reasons of an event so unexpected to my mind and the minds 
of others. Was our civil polity or public justice endangered or 



VIRGINIA CONVENTION OF 1788. 81 

sapped? Was the real existence of the country threatened, or 
was this preceded by a mournful progression of events ? This 
proposal of altering the government is of a most alarming 
nature. Make the best of the new government say it is com- 
posed by anything but inspiration you ought to be extremely 
cautious, watchful, jealous of your liberty ; for instead of securing 
your rights you may lose them forever. If a wrong step be 
now made, the republic may be lost forever. If this new gov- 
ernment will not come up to the expectation of the people, 
and they should be disappointed, their liberty will be lost, 
and tyranny must and will arise. I repeat it again, and I beg 
gentlemen to consider, that a wrong step now will plunge 
us into misery, and our republic will be lost. It will be 
necessary for this Convention to have a faithful historical 
detail of the facts that preceded the session of the Federal 
Convention, and the reasons that actuated its members in pro- 
posing an entire alteration of Government, and to demonstrate 
the dangers that awaited us. If they were of such awful mag- 
nitude as to warrant a proposal so extremely perilous as this, I 
must assert that this Convention has an absolute right to a 
thorough discovery of every circumstance relative to this great 
event. And here I would make this inquiry of those worthy 
characters who composed a part of the late Federal Convention. 
I am sure they were fully impressed with the necessity of form- 
ing a great consolidated Government instead of a confederation. 
That this is a consolidated Government is demonstrably clear ; 
and the danger of such a Government is to my mind very 
striking. I have the highest veneration for those gentlemen ; 
but, sir, give me leave to demand what right had they to say, 
We, the people f My political curiosity, exclusive of my anxious 
solicitude for the public welfare, leads me to ask who authorized 
them to speak the language of ' We, the People ' instead of 
1 We, the States ' ? States are the characteristics and soul.of a 
confederation. If the States be not the agents of this compact, 
it must be one great consolidated Government of the people of 
all the States. I have the highest respect for those gentlemen 
who formed the Convention ; and were some of them not here 
I would express some testimonial of esteem for them. America 
had, on a former occasion, put the utmost confidence in them a 



82 VIRGINIA CONVENTION OF 1788. 

confidence which was well placed and I am sure, sir, I would 
give up everything to them ; I would cheerfully confide in them 
as my representatives. But on this great occasion I would de- 
mand the cause of their conduct. Even from that illustrious 
man, who saved us by his valor, I would have a reason for his 
conduct. That liberty which he has given us by his valor tells 
me to ask this reason ; but there are other gentlemen here who 
can give us this information. The people gave them no power 
to use their name. That they exceeded their power is perfectly 
clear. It is noj mere curiosity that actuates me. I wish to hear 
the real actual existing danger, which should lead us to take 
those steps so dangerous in my conception. 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. 97 But, notwithstanding this, we are wandering in 
the great ocean of human affairs. I see no landmark to guide 
us. We are running we know not whither. Difference of 
opinion has gone to a degree of inflammatory resentment in dif- 
ferent parts of the country, which has been occasioned by this 
perilous innovation. The Federal Convention ought to have 
amended the old system for this purpose they were solely dele- 
gated the object of their mission extended to no other considera- 
tion. You must therefore forgive the solicitation of one unwor- 



97 This remark is strictly true. There was no disorder of any kind 
in Virginia. While Massachusetts was rent by intestine commotions 
and by a formidable rebellion, Virginia was in a state of profound tran- 
quility. The want of profitable employment for the labor of the North, 
and the low state of its marine, produced by the absence of the West 
India trade which it enjoyed before the war, and by the abundance of 
foreign shipping, are two great causes of northern troubles. Meantime 
our agriculture was most prosperous, and our harbors and rivers were 
filled with ships. The shipping interest of Norfolk was clamorous for 
duties on foreign tonnage, but, as we have shown in another place, was 
really advancing most rapidly to a degree of success never known in 
the Colony. The immediate representatives of that part and its 
vicinity were under the delusion that the new Government would en- 
able them to drive foreign ships away, and to fill their places with 
home-built vessels a delusion that was soon dispelled in a short sea- 
son by the sad reality of ports without either foreign or domestic ship- 
ping. 



VIRGINIA CONVENTION OF 1788. &3 

thy member to know what danger could have arisen under the 
present confederation, and what are the causes of this proposal 
to change our Government." 98 

This was the first blast from the trumpet of Henry, and hardly 
had its echoes died on the ear, when Edmund Randolph, evi- 
dently from previous arrangement, sprang to the floor. If 
Nicholas lacked that exterior which commends itself to the eye, 
Randolph, who was his brother-in-law, was in that respect par- 
ticularly fortunate. He had attained his thirty-seventh year, and 
was in the flower of his manhood. His portly figure ; his hand- 
some face and flowing hair ; his college course in the class-room 
and especially in the chapel, in which, standing in the shadow of 
the tomb of his titled ancestor, he was wont to pour the streams 
of his youthful eloquence into ravished ears; his large family 
connections, so important to a rising politician, and so convenient 
to fall back upon in case of defeat ; the high honors which, from 
his entrance on the stage in his twenty-third year, had been 
showered upon him by the people and by the Assembly; the 
eclat which he had elicited by his forensic exertions, and by the 
imposing part which he had borne in the deliberations of the 
Convention at Philadelphia ; his liberal acquaintance with English 
literature ; his stately periods, fashioned in imitation of that cele- 
brated orator who, in the earlier part of the century, had sought 
to conceal, under the forms of exquisite drapery, the tenets of a 
dangerous philosophy, and set off by a voice finely modulated, 
the tones of which rolled grandly through the hall and were re- 
verberated from the gallery, constituted some of the titles to the 
distinction universally accorded him of being the most accom- 
plished statesman of his age in the Commonwealth. An inci- 
dent which occurred in his early life, and which could not be 
recalled by him at any time without painful emotions, tended 

98 This speech, imperfect as it is reported, will give the reader some 
notion of the topics of the speakers ; but he must supply from his 
imagination the influence which the voice, the action, and the character 
of Henry, imparted to everything he said. Mr. Madison, in his latter 
days, told Governor Coles that when he had made a most conclusive 
argument in favor of the Constitution, Henry would rise to reply to 
him, and by some significant action, such as a pause, a shake of the head, 
or a striking gesture, before he uttered a word, would undo all that 
Madison had been trying to do for an hour before. 



84 VIRGINIA CONVENTION OF 1788. 

ultimately to his advantage. His father, who had been at the 
beginning of the Revolution Attorney General of the Colony, 
had adhered to the standard of England. The son, undaunted 
by the conduct of his father, who is said to have disinherited 
him for refusing to follow his example, and impelled by that 
spirit of chivalry which has ever been the heir-loom of his race, 
hastened to the army then encamped on the heights of Boston, 
that he might win an escutcheon of his own, undebased by the 
act of his sire." On his return to Virginia the most flattering 
honors awaited him honors the more valuable from the preju- 
dices which distrusted the shoulders of youth. He was returned 
to the Convention of May, 1776, by the city of Williamsburg 
which had ever selected the ablest men of the Colony as its rep- 
resentatives. In that Convention he was placed on the commit- 
tee which reported the resolution instructing the delegates of 
Virginia in Congress to propose independence, the Declaration 
of Rights, and a plan of government. He was elected by the 
body Attorney-General of the new Commonwealth an honor 
which his grandfather, his uncle, and his father, in the meridian 
of their fame, had been proud to possess. Three years later he 
was elected by the General Assembly a member of Congress, 
and was successively re-elected for the usual term. In 1786 he was 
deputed one of the seven members dispatched from Virginia to 
the meeting of Annapolis; and in 1787 he was sent to the Gen- 
eral Convention which framed the Federal Constitution. He was 
now Governor of the Commonwealth. 

But with all his advantages, he was involved at this critical 
juncture in one of those distressing dilemmas into which impul- 
sive politicians are prone to fall, and which tend to unnerve the 
strongest minds. The title of renegade, however falsely ap- 
plied, is apt to blast the fairest flowers of rhetoric, and to impair 
or render unavailing the greatest powers of logic ; and by this 
title he well knew he was regarded in the estimation of a large and 
influential number of the members whom he was now to address. 
In the Philadelphia Convention he had exerted great influence 
in giving to the Constitution its main outline ; but, differing on 



99 He passed through Philadelphia on his way to Boston, and was 
strongly commended to Washington by a remarkable letter, for a copy 
of which I am indebted to Mr. Connarroe, of the former city. 



VIRGINIA CONVENTION OF 1788. 85 

some important points from his three colleagues, who had ap- 
proved that instrument, he, sustained by Mason and Gerry 
alone, declined to vote in its favor. Nor did his opposition to 
the new scheme halt at this stage of the proceeding. In a let- 
ter which he addressed to the Speaker of the House of Dele- 
gates, 100 which was designed for publication, and which was pub- 
lished far and wide, he expressed his opinions at length, and led 
the opponents of the Constitution to believe that they would 
receive the aid of his talents and those of his family connection 
in their favorite plan of withholding the assent of Virginia to its 
ratification until certain amendments, designed to remedy the 
defects enumerated by him, should become an integral part of 
the new system. The change of his views, which, though it 
took place some time previous to the meeting of the Conven- 
tion, was not universally known until that body assembled, and 
was received at a time when the public excitement was intense, 
and when a single vote, or the influence of a single name, might 
decide the great question at issue, by his former opponents with 
warm approbation, and by his former friends with indignant 
scorn. How far he was justified in the course which he pursued, 
will be discussed elsewhere, our present purpose being only to 
explain the relation in which he stood when he rose to address 
the House. 101 

Conscious of the delicacy of his position, and not indisposed 
to throw off a weight that pressed heavily upon him ; or, per- 
haps, willing to deprive his opponents of the benefit likely to 
accrue to them from that formal and fearful arraignment which 

100 Elliot's Debates, I, 482. 

101 The letter which he prepared for the Assembly in the winter of 
I787~'88, but which he did not transmit, and which was afterwards pub- 
lished, was the first conclusive indication that he would vote for 
the ratification of the Constitution with or without amendments. The 
letter may be found in Carey's Museum, III, 61. Madison, writing to 
Jefferson as late as April 22, 1788, forty days before the meeting- of the 
present Convention, and in intimate correspondence with Randolph, 
reports Randolph as "so temperate in his opposition, and goes so far 
with the friends of the Constitution, that he cannot be properlv classed 
with its enemies." If Madison could not speak confidently on the sub- 
ject, no other person well could. 



86 VIRGINIA CONVENTION OF 1788. 

he knew would, sooner or later, inevitably follow, he resolved to 
introduce the unpleasant topic at once. After a graceful allusion 
to the philosophy of the passions which were apt to rage most 
fiercely on those occasions which required the calmest delibera- 
tion, but excepting the members of the Convention from such 
an influence, he continued : " Pardon me, sir, if I am particularly 
sanguine in my expectations from the chair ; it well knows what 
is order , how to command obedience and that political opinions 
may be as honest on one side as the other. Before I pass into 
the body of the argument, I must take the liberty of mentioning 
the part I have already borne in this great question ; but let me 
not here be misunderstood. I come not to apologize to any mem- 
ber within these walls, to the Convention as a body, or even to 
my fellow citizens at large. Having obeyed the impulse of duty ; 
having satisfied my conscience, and, I trust, my God, I shall 
appeal to no other tribunal ; nor do I become a candidate for 
popularity ; my manner of life has never yet betrayed such a 
desire. The highest honors and emoluments of the Common- 
wealth are a poor compensation for the surrender of personal 
independence. The history of England from the revolution (of 
1688), and that of Virginia for more than twenty years past, 
show the vanity of a hope that general favor should ever follow 
the man, who without partiality or prejudice praises or disap- 
proves the opinions of friends or of foes ; nay, I might enlarge 
the field, and declare, from the great volume of human nature 
itself, that to be moderate in politics forbids an ascent to the 
summit of political fame. But I come hither regardless of 
allurements, to continue as I have begun, to repeat my earnest 
endeavors for a firm, energetic government, to enforce my objec- 
tions to the Constitution, and to concur in any practical scheme 
of amendments; but I will never assent to any scheme that will 
operate a dissolution of the Union, or any measure which may 
lead to it. This conduct may probably be uphanded as injurious 
to my own views ; if it be so, it is at least the natural offspring 
of my judgment. I refused to sign, and if the same were to 



102 This very pointed intimation to Wythe to keep the discussion from 
wandering from the sections under debate, shows very plainly the pro- 
gramme of the Federalists. If such was their policy in committee of 
tne whole, we can well judge what they designed it to be in the House. 



VIRGINIA CONVENTION OF 1788. 87 

return, again would I refuse. Wholly to adopt or wholly to 
reject, as proposed by the Convention, seemed too hard an 
alternative to the citizens of America, whose servants we were, 
and whose pretensions amply to discuss the means of their hap- 
piness were undeniable. Even if adopted under the tenor of 
impending anarchy, the government must have been without 
that safest bulwark, the hearts of the people ; and if rejected 
because the chance of amendments was cut off, the Union would 
have been irredeemably lost. This seems to have been verified 
by the event in Massachusetts ; but our Assembly have removed 
these inconveniences by propounding the Constitution to our 
full and free inquiry. When I withheld my supscription, I had 
not even the glimpse of the genius of America relative to the 
principles of the new Constitution. Who, arguing from the 
preceding history of Virginia, could have divined that she was 
prepared for the important change? In former times, indeed, 
she transcended every Colony in professions and practices of 
loyalty; but she opened a perilous war under a democracy almost 
as pure as representation would admit. She supported it under 
a Constitution which subjects all rule, authority, and power to 
the legislature. Every attempt to alter it had been baffled ; the 
increase of Congressional power had always excited alarm. I 
therefore would not bind myself to uphold the new Constitution 
before I had tried it by the true touchstone ; especially, too, 
when I foresaw that even the members of the General Conven- 
tion might be instructed by the comments of those without doors. 
But, moreover, I had objections to the Constitution, the most 
material of which, too lengthy in detail, I have as yet barely 
stated to the public, but will explain when we arrive at the proper 
points. Amendments were consequently my wish ; these were 
the grounds of my repugnance to subscribe, and were perfectly 
reconcilable with my unalterable resolution to be regulated by 
the spirit of America, if after our best efforts for amendments, 
they could not be removed. I freely indulge those who may 
think this declaration too candid in believing that I hereby de- 
part from the concealment belonging to the character of a states- 
man. Their censure would be more reasonable were it not for 
an unquestionable fact, that the spirit of America depends upon 
a combination of circumstances which no individual can control, 
and arises not from the prospect of advantages which may be 



88 VIRGINIA CONVENTION OF 1788. 

% 

gained by the acts of negotiation, but from deeper and more 
honest causes. As with me the only question has ever been 
between previous and subsequent amendments, so I will express 
my apprehensions, that the postponement of this Convention to 
so late a day has extinguished the probability of the former with- 
out inevitable ruin to the Union ; and the Union is the anchor 
of our political salvation ; and I will assent to the lopping of this 
limb (meaning his arm) before I assent to the dissolution of the 
Union," Then, turning to Henry, he said : " I shall now follow 
the honorable gentleman in his inquiry. Before the meeting of 
the Federal Convention," says the honorable gentleman, "we 
rested in peace. A miracle it was that we were so ; miraculous 
must it appear to those who consider the distresses of the war, 
and the no less afflicting calamities which we suffered in the suc- 
ceeding peace. Be so good as to recollect how we fared under 
the Confederation. I am ready to pour forth sentiments of the 
fullest gratitude to those gentlemen who framed that system. I 
believe they had the most enlightened heads in this western 
hemisphere. Notwithstanding their intelligence and earnest 
solicitude for the good of their country, this system has proved 
totally inadequate to the purpose for which it was devised ; but, 
sir, it was no disgrace to them. The subject of confederations 
was then new, and the necessity of speedily forming some gov- 
ernment for the States to defend them against the passing dan- 
gers prevented, perhaps, those able statesmen from making the 
system as perfect as more leisure and deliberation would have 
enabled them to do. I cannot otherwise conceive how they 
would have formed a system that provided no means of enforcing 
the powers which were nominally given to it. Was it not a 
political farce to pretend to vest powers without accompanying 
them with the means of putting them into execution. 103 This 



loa The wonder is, not as Mr. Randolph thinks, that the Congress 
made such a confederation, but that they succeeded in making any 
confederation at all. Among other evidences in my possession of the 
difficulties which environed the subject, I quote the annexed extract 
from a letter of Edward Rutledge, a member of Congress, which I 
received from an esteemed friend at the North, dated August, 1776, 
and which will show that the work was nearly given up in despair: 
" We have nothing with the confederation for some days, and it is of 
little consequence if we never see again ; for we have made such a 



VIRGINIA CONVENTION OF 1788. 89 

want of energy was not a greater solecism than the blending 
together and vesting in one body all the branches of govern- 
ment. The utter inefficacy of this system was discovered the 
moment the danger was over by the introduction of peace. The 
accumulated public misfortunes that resulted from its inefficacy 
rendered an alteration necessary. This necessity was obvious to 
all America. Attempts have accordingly been made for this pur- 
pose. I have been a witness to this business from its earliest 
beginning. I was honored with a seat in the small Convention 
held at Annapolis. The members of that Convention thought 
unanimously that the control of commerce should be given to 
Congress and recommended to their States to extend the im- 
provement to the whole system. The members of the General 
Convention were particularly deputed to meliorate the Confed- 
eration. On a thorough contemplation of the subject, they 
found it impossible to amend that system : what was to be done ? 
The dangers of America, which will be shown at another time by 
particular enumeration, suggested the expedient of forming a 
new plan. The Confederation has done a great deal for us we 
all allow ; but it was the danger of a powerful enemy, and the 
spirit of America, sir, and not any energy in that system, that 
carried us through that perilous war ; for what were its best 
aims ? The greatest exertions were made when the danger was 
most imminent. This system was not signed till March, 1781, 
Maryland not having acceded to it before ; yet the military 
achievements and other exertions of America, previous to that 
period, were as brilliant, effectual, and successful as they could 
have been under the most energetic government. This clearly 
shows that our perilous situation was the cement of our Union. 
How different the scene when this peril vanished and peace was 
restored ! The demands of Congress were treated with neglect. 
One State complained that another had not completed its quotas 
as well as itself; public credit gone, for, I believe, were it not 
for the private credit of individuals, we should have been ruined 

(devil) of it already that the Colonies can never agree to it. If my 
opinion was likely to be taken, I would propose that the States should 
appoint a special Congress to be composed of new members for this 
purpose ; and that no person should disclose any part of the present 
plan. If that was done, we might then stand some chance of a Con- 
federation ; at present we stand none at all." 



90 VIRGINIA CONVENTION OF 1788. 

% 

long before that time ; commerce languishing ; produce falling 
in value ; and justice trampled under foot. We became con- 
temptible in the eyes of foreign nations ; they discarded us as 
little wanton bees who had played for liberty, but had no suf- 
ficient solidity or wisdom to secure it on a permanent basis, and 
were therefore unworthy of their regard. It was found that 
Congress could not even enforce the observance of treaties. The 
treaty under which we enjoy our present tranquility was disre- 
garded. Making no difference between the justice of paying 
debts due to people here, and that of paying those due to peo- 
ple on the other side of the Atlantic, I wished to see the treaty 
complied with, by the payment of the British debts, but have not 
been able to know why it has been neglected. What was the 
reply to the demands and requisites of Congress ? You are too 
contemptible ; we will despise and disregard you. 

" I shall endeavor to satisfy the gentleman's political curiosity. 
Did not our compliance with any demand of Congress depend 
on our own free will ? If we refused, I know of no coercive 
power to compel a compliance. 104 After meeting in Convention, 
the deputies from the States communicated their information to 
one another. On a review of our critical situation, and of the 
impossibility of introducing any degree of improvement into the 
old system, what ought they to have done? Would it not have 
been treason to return without proposing some scheme to relieve 
their distressed country ? The honorable gentleman asks why 
we should adopt a system that shall annihilate and destroy our 
treaties with France and other nations. I think the misfortune 
is that these treaties are violated already under the honorable 
gentleman's favorite system. I conceive that our engagements 
with foreign nations are not at all affected by this system ; for 
the sixth article expressly provides that ' all debts contracted, 
and engagements entered into, before the adoption of this Con- 
stitution, shall be as valid against the United States under this 
Constitution as under the Confederation.' Does this system, 
then, cancel debts due to or from the continent? Is it not a well 



104 The two first sentences of this paragraph have a personal bearing 
upon Henry. The allusion is to Henry's proposition that the delin- 
quent States should be compelled by force to make full payment of 
their quotas. This is only important to show that Randolph is the ag- 
gressor in the furious quarrel that was soon to take place. 



VIRGINIA CONVENTION OF 1788. 91 

known maxim that no change of situation can alter an obliga- 
tion once rightly entered into ? He also objects because nine 
States are sufficient to put the Government in motion. What 
number of States ought we to have said ? Ought we to have re- 
quired the concurrence of all the thirteen ? Rhode Island in 
rebellion against integrity Rhode Island plundered all the world 
by her paper money ; and, notorious for her uniform opposition 
to every Federal duty, would then have it in her power to defeat 
the Union ; and may we not judge with absolute certainty, from 
her past conduct, that she would do so? Therefore, to have re- 
quired the ratification of all the thirteen States would have been 
tantamount to returning without having done anything. What 
other number would have been proper ? Twelve ? The same 
spirit that has actuated me in the whole progress of the business, 
would have prevented me from leaving it in the power of any 
one State to dissolve the Union ; for would it not be lamentable 
that nothing could be done for the defection of one State ? A 
majority of the whole would have been too few. Nine States, 
therefore, seem to be a most proper number. 

" The gentleman then proceeds, and inquired why we assumed 
the language of ' We, the people.' I ask, why not? The Gov- 
ernment is for the people ; and the misfortune was that the peo- 
ple had no agency in the Government before. The Congress 
had power to make peace and war under the old Confederation. 
Granting passports, by the law of nations, is annexed to this 
power ; yet Congress was reduced to the humiliating condition 
of being obliged to send deputies to Virginia to solicit a pass- 
port. Notwithstanding the exclusive power of war was given to 
Congress, the second Article of the Confederation was inter- 
preted to forbid that body to grant a passport for tobacco, which, 
during the war, and in pursuance of engagements made at Little 
York, was to have been sent into New York. What harm is 
there in consulting the people on the construction of a Govern- 
ment by which they are to be bound ? Is it unfair? Is it un- 
just? If the Government is to be binding upon the people, are 
not the people the proper persons to examine its merits or de- 
fects ? I take this to be one of the least and most trivial objec- 
tions that will be made to the Constitution. In the whole of this 
business I have acted in the strictest obedience to the dictates of 
my conscience in discharging what I conceive to be my duty to 



92 



VIRGINIA^ CONVENTION OF 1788. 



my country. I refused my signature, and if the same reasons 
operated on my mind, 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." 

This speech, the report of which is meagre and evidently dis- 
connected, had considerable effect on the body. It placed the 
speaker at once in the party of the Federalists, and put an end 
to the favorable expectations in which the opponents of the Con- 
stitution had indulged. The bold and sarcastic tone in which 
he answered the inquiries of Henry told that, instead of dread- 
ing, he defied the attacks of the orator of the people. At this 
day we can see the ingenious sophisms with which the speech 
abounds ; and it is obvious that Randolph did not fully see, or 
purposely made light of, the most significant interrogatory of 
Henry. 

He was followed by Mason, whose words were now watched 
with an interest hardly exceeded by that which existed when he 
first rose to address the House ; for he, too, had been a member 
of the General Convention, and had declared in that body that, 
on certain conditions, none of which included the words of the 
preamble, he would approve the Constitution ; but, though no 
parliamentarian, he saw the snare into which his opponents were 
anxious that he should fall, and adroitly avoided it by taking 
ground which placed him in instant communion with Henry. 
He began by saying that, whether the Constitution be good or 
bad, the present clause demonstrated that it is a national Gov- 
ernment, and no longer a confederation ; 105 ihat popular govern- 
ments could only exist in small territories ; that what would be a 
proper tax in one State would not be a proper tax in another ; 
that the mode of levying taxes was of the utmost consequence ; 
that the subject of taxation differed in three- fourths of the States ; 
that, if the national Government was enabled to raise what is 
necessary, that was sufficient; but, he said, why yield this 
dangerous power of unlimited taxation ? He objected to the 

105 The clause to which he alludes is as follows : " Representatives 
and direct taxes shall be apportioned among the several States, which 
may be included within this Union, according to their respective num- 
bers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and ex- 
cluding Indians not taxed, three-fifths of all other persons." 



VIRGINIA CONVENTION OF 1788. 93 

rule apportioning the number of representatives "the number 
of representatives," the Constitution said, "shall not exceed one 
for every thirty thousand ;" no\v, will not this be complied with, 
although the present number should never be increased? 
" When we come to the judiciary," he said, " we shall be more 
convinced that this Government will terminate in the annihila- 
tion of the State Government. The question then will be, 
whether a consolidated Government can preserve the freedom 
and secure the great rights of the people. If such amendments 
be introduced as shall exclude danger, I shall most gladly put 
my hand to this Constitution. When such amendments as shall 
secure the great essential rights of the people be agreed to by 
gentlemen, I shall most heartily make the greatest concessions, 
and concur in any reasonable measure to obtain the desirable 
end of conciliation and unanimity; but an indispensable amend- 
ment is that Congress shall not exercise the power of raising 
direct taxes till the States shall have refused to comply with the 
requisitions of Congress. On this condition it may be granted ; 
but I see no reason to grant it unconditionally ; as the States 
can raise the taxes with more ease, and lay them on the inhabi- 
tants with more propriety than it is possible for the general Gov- 
ernment to do. If Congress hath this power without control, the 
taxes will be laid by those who have no fellow feeling or acquain- 
tance with the people. This is my objection to the article under 
consideration. It is a very great and important one. I beg, 
gentlemen, seriously to consider it. Should this power be re- 
strained, I shall withdraw my objections to this part of the Con- 
stitution ; but, as it stands, it is an objection so strong in my mind 
that its amendment is with me a sine qua non of its adoption. I 
wish for such amendments, and such only, as are necessary to 
secure the dearest rights of the people." 

Madison, who had kept himself in reserve to answer Mason, 
then took the floor. We must not confound the Madison who 
presided in the Federal Government, and who appeared in extreme 
old age in the Convention of 1829, with the Madison who now 
in his thirty-eighth year rose to address the House. Twelve 
years before he had entered the Convention of 1776, a small, frail 
youth, who, though he had reached his twenty-fifth year, looked 
as if he had not attained his majority. Diffident as he was on 
that his first appearance in public life, his merits did not even 



94 VIRGINIA CONVENTION OF 1788. 

% 

then pass unobserved ; and he was placed on the grand com- 
mittee of that body which reported the resolution instructing 
the delegates of Virginia in Congress to propose independence, 
and which reported the declaration of rights and the Constitu- 
tion. After serving in the first House of Delegates to the close 
of its session, 106 he was soon after chosen a member of the Coun- 
cil, and was in due time transferred thence to Congress, when his 
talents were first exerted in debate, and of which body he was at 
that time a member. He had at an early day foreseen the neces- 
sity of an amendment of the Articles of Confederation ; had 
been a member of the meeting at Annapolis ; and was, perhaps, 
more instrumental in the call of the General Convention than 
any other of his distinguised contemporaries. In that body he 
had performed a leading part ; and in addition to his ordinary 
duties as a member, he undertook the task of reporting the sub- 
stance of the debates, and thus preserved for posterity the only 
full record of its deliberations that we possess. His services in 



106 As Mr. Madison was a member of the May Convention of 1776, 
and also a member of the first House of Delegates, it is reasonable to 
suppose that he had been elected on two distinct occasions by the peo- 
ple ; but as such was not the fact, and as both Mr. Jefferson and Mr. 
Madison have made statements in some measure derogatory from the 
true nature of our early Convention, it may be worth while to say that, 
after the subsidence of the House of Burgesses in the Revolution, the 
members who were returned by the people on the basis of that House, 
acted on the sovereign capacity of conventions, as we now understand 
the word The conventions, like the House of Burgesses, were elected 
for a given term ; and the members of the Convention of May, 1776, 
after framing the Constitution, having been elected to serve one year, 
did not adjourn sine die, but being on the identical basis of the House 
of Delegates under the new Constitution, held over, and became the 
first House of Delegates of the General Assembly, the Senate of which 
had been elected by the people. Hence, Mr. Madison and Mr. Jeffer- 
son have frequently affirmed that the first Constitution of Virginia was 
made by an ordinary legislature ; overlooking the facts stated above, 
and failing to recognize the two remarkable precedents afforded by 
Englibh history in the Convention Parliament of 1660, which restored 
Charles the Second, and the Convention Parliament of 1688, which 
settled the British crown on William and Mary ; both of which bodies, 
when their conventional duties were finished, became the ordinary 
House of Commons until the expiration of the term for which the 
members had been elected. 



VIRGINIA CONVENTION OF 1788. 95 

this respect were invaluable. 107 From his entrance into Congress 
he was compelled to engage in public speaking; and as all his 
intellectual powers had for years been trained to discussion, when 
he took his seat in the present Convention he was probably one 
of the most thorough debaters of that age. His figure had 
during the last twelve years become more manly, and though 
below the middle stature, was muscular and well-proportioned. 
His manners and address were sensibly improved by the refined 
society in which he had appeared during that interval, and his 
complexion, formerly pale, had become ruddy. He was a bach- 
elor, and was handsomely arrayed in blue and buff. His coat 
was single-breasted, with a straight collar doubled, such as the 
Methodists wore thirty years ago ; and at the wrist and on his 
breast he wore ruffles. His hair, which was combed low on his 
forehead to conceal a baldness which appeared in early life, was 
dressed with powder, and ended in a long queue, the arrange- 
ment of which was the chief trouble of the toilet of our fathers. 
The moustache, then seen only on some foreign lip, was held in 
abhorrence, and served to recall the carnage of Blackbeard, who 
had been slain in the early part of the century, in the waters of 
Carolina, by the gallant Maynard, and whose name made the 
burden of the song with which Mason and Wythe had been 
scared to sleep in their cradles. Even the modest whisker was 
rarely worn by eminent public men ; and neither the moustache 



107 Mr. Madison told Governor Edward Coles that the labor of writ- 
ing out the debates, added to the confinement to which his attendance 
in Convention subjected him, almost killed him ; but that having 
undertaken the task, he was determined to accomplish it. It is not 
improbable -that other members made memoranda ; but as yet we have 
nothing more than a very respectable record from Chief Justice Robert 
Yates, of New York, who, however, withdrew at an early period of the 
session. I attempted to sketch the debates in the Convention of 1829, 
and have saved a few things which occurred in the legislative com- 
mittee ; but gave the matter up when I saw the full and accurate re- 
ports made under the auspices of Mr. Ritchie. My slight experience 
convinced me that the task would be incompatible with any partici- 
pation in society. It enhances our opinion of the talents of Madison, 
when we reflect that in addition to his formidable labor in reporting 
and writing out the proceedings of the Convention, he was able to bear 
a principal part in its deliberations. 



96 VIRGINIA CONVENTION OF 1788. 

nor the whisker was ever seen on the face of Madison, Monroe, 
Jefferson or Washington. He walked with a bouncing step, 
which he adopted with a view of adding, to his height, or had 
unconsciously caught during his residence at the North, and 
which was apparent to any one who saw him, forty years later, 
enter the parlor at Montpellier. But what was far more impor- 
tant than any mere physical quality, he not only possessed, as 
before observed, the faculty of debate in such a degree that he 
may be said to exhaust every subject which he discussed and 
to leave nothing for his successors to say, but a self-possession, 
acquired partly by conflict with able men, partly by the con- 
sciousness of his strength, without which, in the body in which 
he was now to act, the finest powers would have been of little 
avail, and a critical knowledge of the rules of deliberative assem- 
blies. He was fortunate in another particular of hardly less im- 
portance than the possession of great powers ; he had an inti- 
mate knowledge of the men to whom he was opposed, and 
whose eloquence and authority would be apt to silence an oppo- 
nent when felt for the first time. He had known Grayson in 
Congress, and had heard Henry in the Convention of 1776, and 
had encountered him in the House of Delegates on several grave 
questions that arose during the Revolution and subsequently. 
With Mason also he had served the same apprenticeship, and 
had recently acted with him in the General Convention ; and he 
knew as well as any man living wherein the secret of the strength 
of these formidable opponents lay. But with all these advantages 
of knowledge and experience, of which he availed himself during 
the session to the greatest extent and with consummate tact, he 
had the physical qualities of an orator in a less degree than any 
of his great contemporaries. His low stature made it difficult 
for him to be seen from all parts of the house; his voice was 
rarely loud enough to be heard throughout the hall ; and this 
want of size and weakness of voice were the more apparent from 
the contrast with the appearance of Henry, and Innes, and Ran- 
dolph, who were large men, and whose clarion notes were no 
contemptible sources of their power. He always rose to speak 
as if with a view of expressing some thought that had casually 
occurred to him, with his hat in his hand, and with his notes in 
his hat ; and the warmest excitement of debate was visible in him 



VIRGINIA CONVENTION OF 1788. 97 

only by a more or less rapid and forward see-saw motion of his 
body. 108 Yet such was the force of his genius that one of his 
warmest opponents in the Convention declared, years after the 
adjournment, that he listened with more delight to his clear and 
cunning argumentation than to the eloquent and startling appeals 
of Henry ; and he established a reputation in this body which 
was diffused throughout the State, and which was the ground- 
work of his subsequent popularity. One quality which was per- 
ceptible in all the great occasions of his life, occurring on the 
floor or in the cabinet, and which can never be commended too 
highly, was the courtesy and the respect with which he regarded 
the motives and treated the arguments of the humblest as well 
as the ablest of his opponents, and which placed him on a noble 
vantage ground when he was personally assailed by others. 109 
He viewed an argument in debate, not in respect of the 
worth or want of worth of him who urged it, but in respect of 



108 I have often heard of Mr. Madison's mode of speaking from mem- 
bers of the Assembly of 1799. One of those members, some years 
ago, wrote a capital sketch of his manner, which appeared in the 
Richmond Enquirer. I am sorry that I have mislaid the reference to 
it. When the Enquirer was first published it always contained an in- 
dex at the close of the year, and that index was a great help to the 
memory. The style of Mr. Madison's speaking was well adapted to the 
old Congress and the General Convention, which were small bodies; 
but he never could have been heard at any time in the hall of the 
House of Delegates. In the Convention of 1829 he spoke once or 
twice, but he was inaudible by the members who crowded about him. 
On one occasion I remember John Randolph rising and advancing sev- 
eral steps to hear him, and holding his hand to his ear for a minute or 
two, and then dropping his hand with a look of despair. 

109 The sternest judge, before the merits of Madison as a speaker, 
could pass in review one who was the Ajax Telamon of the opposite 
party was the late Chief-Justice Marshall ; yet, towards the close of 
his life, being asked which of the various public speakers he had 
heard and he had heard all the great orators, parliamentary and 
forensic, of America he considered the most eloquent, replied : ' Elo- 
quence has been defined to be the art of persuasion. If it includes 
persuasion by convincing, Mr. Madison was the most eloquent man I 
ever heard." Rives' Madison, II, 612, note. As an instance of the 
courtesy of Mr. Madison, while conversing on a very irritating theme 
with the late Lord Jeffery, who visited the United States in 1813, see 
Lord Cockburrfs Life of Jeffery ', I, 179. 



98 VIRGINIA^ CONVENTION OF 1788. 

its own intrinsic worth. The same sense of propriety which led 
him to respect the feelings and motives of others, impelled him 
to resent with stern severity any attack upon his own ; and on 
two occasions during the session, when he thought a reflection 
was cast upon him, he demanded reparation in a tone that men- 
aced an immediate call to the field. On the present occasion he 
saw that the utmost discretion was indispensable, if any conclu- 
sive and really valuable conquest was to be won by the friends of 
the Constitution. He could not know that the Constitution 
would be carried at all ; and he knew that, if it was, it would be 
carried in opposition to the wishes of some of the ablest and 
wisest men of that age men to whom, for more than twenty 
years, Virginia had looked for guidance in war and in peace, and 
who, if they were not sustained by a large majority of the peo- 
ple, held in their keeping the keys of the General Assembly. He 
saw that, if a triumph worth enjoying was to be attained by his 
friends, it was to be accomplished by conciliation and forbear- 
ance, not by intimidation or by obloquy ; and instead of imita- 
ting his friend Randolph, who could not repress a spirit of sar- 
casm and defiance in answering the purely political interroga- 
tories of Henry, he addressed himself to the arguments of Mason 
with the blandness with which one friend in private life would 
seek to remove the objections of another. He said "it would 
give him great pleasure to concur with his honorable colleague 
on any conciliating plan. The clause to which he alludes is only 
explanatory of the proportion which representation and taxation 
shall respectively bear to one another. The power of laying di- 
rect taxes will be more properly discussed when we come to that 
part of the Constitution which rests that power in Congress. At 
present I must endeavor to reconcile our proceedings to the 
resolution we have taken by postponing the examination of this 
power till we come properly to it. With respect to converting 
the Confederation to a complete consolidation, I think no such 
consequence will follow from the Constitution ; and that with 
more attention the gentleman will see that he is mistaken ; and, 
with respect to the number of representatives, I reconcile it to 
my mind, when I consider it may be increased to the proportion 
fixed ; and that, as it may be so increased, it shall, because it is 
the interest of those who alone can prevent it, who are our rep- 
resentatives, and who depend on their good behavior for re-elec- 



VIRGINIA CONVENTION OF 1788. 99 

tion. Let me observe also that, as far as the number of repre- 
sentatives may seem to be inadequate to discharge their duty, 
they will have sufficient information from the laws of particular 
States, from the State legislatures, from their own experience, 
and from a great number of individuals ; and as to our security 
against them, I conceive that the general limitation of their pow- 
ers, and the general watchfulness of the States, will be a sufficient 
guard. As it is now late, I shall defer any further investigation 
till a more convenient time." 

When he ended, the House rose, and Madison hastened to his 
solitary room at the Swan, and wrote to Washington that Ran- 
dolph had thrown himself fully in the Federal scale ; that Henry 
and Mason had made 3 lame figure, and appeared to take dif- 
ferent and awkward grounds ; that the Federalists were elated 
at their present prospects ; that he could not speak certainly of 
the result ; that Kentucky was extremely tainted, and was sup- 
posed to be adverse ; and that every kind of address was going 
on privately to work on the local interests and prejudices of that 
and other quarters. 110 

110 Madison to Washington, June 4, 1788, Writings of Washington, IX, 
370, note. Washington received the earliest intelligence of the pro- 
ceedings of the Convention from his friends in the body, and commu- 
nicated freely his advices to his distant correspondents. As a specimen 
of his reporting at second hand, I annex his letter to John Jay, dated 
June 8, 1788 (Ibid., 373), in which he gives the proceedings to the close 
of this day's session: " On the day appointed for the meeting of the 
Convention, a large proportion of the members assembled, and unani- 
mously placed Mr. Pendleton in the chair. Having on that and the 
subsequent day chosen the rest of the officers, and fixed upon the 
mode of conducting the business, it was moved by some one of those 
opposed to the Constitution to debate the whole by paragraphs, with- 
out taking any question until the investigation should be completed. 
This was as unexpected as acceptable to the Federalists, and their 
hearty acquiescence seems to have somewhat startled the opposite 
party, for fear they had committed themselves. 

" Mr. Nicholas opened the business by very ably advocating the sys- 
tem of representation. Mr. Henry, in answer, went more vaguely into 
the discussion of the Constitution, intimating that the Federal Conven- 
tion had exceeded its powers, and that we had been and might be 
happy under the old Confederation with a few alterations. This called 
up Governor Randolph, who is reported to have spoken with great 
pathos in reply, and who declared that, since so many of the States had 



100 VIRGINIA^ CONVENTION OF 1788. 

Nor was Madison the only correspondent of Washington in 
the Convention. There was a young man, who had just reached 
his thirtieth year, who had been educated at William and Mary, 
had made a short tour in the Revolution, and, going to Phila- 
delphia, had studied law under Wilson ; and who, having settled 
in Richmond, devoted himself to his profession, and published 
two volumes of reports, which still preserve his name in asso- 
ciation with his native State. He was destined to distinction in 
after life. He was the nephew of Washington, bore that hon- 
ored name, became the heir of Mount Vernon, and for nearly the 
third of a century after his illustrious uncle had descended to the 
tomb held a seat in the Supreme Court created by the Consti- 
tution, the fate of which he was about to decide. It was from this 
young man, from Madison, and from other friends, that Wash- 
ington received as regular reports of the proceedings of the 
Convention as the postal facilities of that day would convey ; and 
he was thus enabled to keep his friends in other States well 
instructed in the progress of that great debate, which he re- 



adopted the proposed Constitution, he considered the sense of America 
to be already taken, and that he should give his vote in favor of it 
without insisting previously upon amendments. Mr. Mason rose in 
opposition, and Mr. Madison reserved himself to obviate the objections 
of Mr. Henry and Colonel Mason the next day. Thus the matter rested 
when the last accounts gave way. 

" Upon the whole, the following inferences seem to have been drawn : 
That Mr. Randolph's declaration will have considerable effect with 
those who had hitherto been wavering ; that Mr. Henry and Colonel 
Mason took different and awkward ground, and by no means equaled 
the public expectations in their speeches ; that the former has receded 
somewhat from his violent measures to coalesce with the latter ; and 
that the leaders of the opposition appear rather chagrined, and hardly 
to be decided as to their mode of opposition. 

" The sanguine friends of the Constitution counted upon a majority 
of twenty at their first meeting, which number, they imagine, will be 
greatly increased ; while those equally strong in their wishes, but 
more temperate in their habits of thinking, speak less confidently of 
the greatness of the majority, and express apprehension of the acts 
that may yet be practiced to excite alarms with the members from the 
Western District (Kentucky)." It is much to be regretted that Mr. 
Sparks did not publish all the letters received by Washington during 
the session of the Convention. In the absence of the newspapers, 
which seem to have been all lost, they would have been important in 
many respects. 



VIRGINIA CONVENTION OF 1788. 101 

garded with an interest not less intense than that with which he 
had watched the tide of battle or the issue of a campaign. 

The morning of Thursday, the fifth day of June, witnessed a 
dense crowd in the New Academy. It was expected that Madi- 
son would reply to Henry and Mason ; and that Henry and 
Mason, unrestrained by the order of discussion, would review 
.the Constitution at large. Some business appertaining to con- 
tested elections was soon despatched; and Pendleton, having 
called Wythe to the chair, was helped to a seat in the body of 
the house. There was a pause, for the courtesies of parliament 
were strictly observed, and Madison was entitled to the floor. 
But he was nowhere to be seen. It was whispered that he had 
been taken suddenly ill, and was confined to his room. Every 
eye was then turned to Henry and Mason, when, to the amaze- 
ment of all, Pendleton was seen to make an effort to rise, and, 
supported on crutches, addressed the chair. Those who forty 
years later, in the Convention of 1829 beheld Mr. Madison, in 
the midst of an excited discussion rise from his seat, and pro- 
ceed to make a speech, and can recall the confusion produced 
by the members hastening from their seats to gather around 
him, or leaping on the benches in the hope of seeing, if they 
could not hear, what was passing before them, may form some 
conception of the interest so suddenly excited by the appearance 
of Pendleton on the floor with a view of making a regular 
speech. He had been for the third of a century eminent for 
skill in debate, and his fame had become a matter of history ; 
and he had never before been in a body the discussions of which 
were better adapted to the display of his extraordinary talents ; 
but he was so far advanced in life, so crippled by his hurt, and 
so long absent from public bodies and unused to debate, it was 
not expected that he would be able to do more than to speak to 
some point of order or to give his vote. He soon, however, 
gave a remarkable proof that fine powers kept in full employ- 
ment do not sensibly decay with time, and that he only wanted 
physical strength to take the lead out of the hands of the prom- 
ising statesmen who had been born and had grown up since he 
first entered a deliberative assembly. It is said that some of the 
oldest members, 111 as they looked at the feeble old man on his 

111 In the Convention of 1829, when Mr. Monroe was conducted to the 
chair by Mr. Madison and Chief Justice Marshall, several members 



102 VIRGINIA CONVENTION OF 1788. 

feet, and at his ancient compeer Wythe leaning forward in the 
chair to catch the tones of a voice which for the past thirty years 
he had heard with various emotions, were affected to tears. But 
there was no snivelling or passion in Pendleton himself. He 
had resolved to refute the arguments urged by Henry the day 
before, and he performed his task as thoroughly and as delib- 
erately, and very much in the same way, as he would deliver an 
opinion upon the bench. On its face the speech seems conclu- 
sive ; for, as like Nicholas, he was purely argumentative, and, as 
he dealt only with special objections, his words are reported with 
a force and connection which are altogether wanting in the 
speeches of Henry and Randolph. 

He met the objection of Henry, that the General Convention 
had exceeded its powers in substituting an entirely new system 
in the place of the Confederation which they were required to 
amend, in the following manner : " But the power of the Con- 
vention is doubted. What is the power ? To propose, and not 
to determine. This power of proposing is very broad ; it ex- 
tended to remove all defects in government. The members of 
that Convention were to consider all the defects in our general 
government ; they were not confined to any particular plan. 
Were they deceived ? This is the proper question here. Sup- 
pose the paper on your table dropped from one of the planets ; 
the people found it, and sent us here to consider whether it is 
proper for their adoption. Must we not obey them ? Then the 
question must be between this Government and the Confedera- 
tion. The latter is no government at all. It has been said that 
it carried us through a dangerous war to a happy issue. Not 



were seen to weep. There are several points of resemblance in the 
incidents of the two bodies. Pendleton, speaking on his crutches, 
recalls William B. Giles, who had broken a leg by a similar accident, 
[his descendants say that he was disabled by rheumatism ED.] and was 
only a year or two younger than Pendleton. The change in the 
opinions of Edmund Randolph has its counterpart in the change attribu- 
ted to Chapman Johnson ; and the collision between Patrick Henry and 
Edmund Randolph was repeated in that between Chapman Johnson 
and John Randolph. The election of Pendleton instead of Wythe, 
who was the more popular of the two, is reflected in the election of 
Monroe instead of Madison, who was universally fixed upon both in 
and out of the Convention as its presiding officer, and who alone could 
have defeated his election, which he did by instantly rising when the 
body was called to order and nominating Mr. Monroe. 



VIRGINIA CONVENTION OF 1788. 103 

that Confederation, but common danger and the spirit of Amer- 
ica were the bonds of our union. Union and unanimity, and not 
that insignificant paper, carried us through that dangerous war. 
'United we stand; divided we fall,' echoed and re-echoed 
through America, from Congress to the drunken carpenter, was 
effectual, and procured the end of our wishes, though now forgot 
by gentlemen, if such there be, who incline to let go this strong 
hold to catch at feathers for such all substituted projects may 
prove." 

He also met the objection of Henry, to the words in the pre- 
amble of the Constitution, ; ' We, the people," in this wise : "An 
objection is made to the form. The expression, ' We, the peo- 
ple,' is thought improper. Permit me to ask the gentleman who 
made this objection, who but the people can delegate powers ? 
Who but the people have a right to form government ? The 
expression is a common one, and a favorite one with me. The 
representatives of the people, by their authority, is a mode 
wholly inessential. If the objection be that the union ought to 
be not of the people, but of the State Governments, then I think 
the choice of the former very happy and proper. What have 
the State Governments to do with it ? Were they to determine, 
the people would not, in that case, be the judges upon what 
terms it was adopted." 

In allusion to the fears expressed by Henry, of the loss of lib- 
erty under a particular form of Government, he thus expressed 
his views of the nature of Government, and the mode of relief in 
the event of maladministration : " Happiness and security can- 
not be attained without Government. What was it that brought 
us from a state of nature to society but to secure happiness ? 
Personify Government ; apply to it as to a friend to assist you, 
and it will grant your request. This is the only Government 
founded on real compact. There is no quarrel between Govern- 
ment and Liberty ; the, former is the shield and protector of the 
latter. The war is between Government and licentiousness, fac- 
tion, turbulence, and other violations of the rule of society to 
preserve liberty. Where is the cause of alarm ? We, the peo- 
ple, possessing all power, form a Government such as we think 
will secure happiness ; and suppose in adopting this plan we 
shall be mistaken in the end, where is the cause of alarm on that 
quarter? In the same plan we point out an easy and quiet 



104 VIRGINIA CONVENTION OF 1788. 

method of reforming what may be found amiss. No; but say, 
gentlemen, we have put the introduction of that method in the 
hands of our servants, who will interrupt it from motives of self- 
interest. What then ? We will resist, did my friend say, con- 
veying an idea of .force? Who shall dare to resist the people ? 
No ; we will assemble in Convention, wholly recall our dele- 
gated powers or reform them so as to prevent such an abuse; 
and punish those servants who have perverted powers designed 
for our happiness to their own emolument. We should be ex- 
tremely cautious not to be drawn into dispute with regular Gov- 
ernment by faction and turbulence, its natural enemies. Here, 
then, there is no cause of alarm on this side ; but on the other 
side, rejecting of Government and dissolving of the Union, pro- 
duce confusion and despotism." 

Before taking his seat, he said he was of no party, nor actu- 
ated by any influence but the true interest and real happiness of 
those whom he represented ; that his age and situation, he trusted, 
would sufficiently demonstrate the truth of his assertion, and that 
he was perfectly satisfied with this part of the system. 

This was a characteristic effort of the venerable President. 
Meagre as the report is, we know from the report itself, as well 
as from tradition, that it was able and effective ; and it displays 
not only the skill of the lawyer, but that familiarity with public 
bodies which places a speaker abreast of his audience, and en- 
ables a wary debater to strike the level of the general mind. As 
far as Pendleton saw and on strictly legal questions he saw all 
the way no man saw more clearly ; but his range of political 
vision was limited ; and his speech is the speech rather of a great 
lawyer than of a great statesman. While he affirmed in the 
strongest manner the right of the people of Virginia, in Conven- 



12 This opinion, which at that day was deemed a truism, let it be re- 
membered, was uttered by an old man verging to seventy, who had 
been the leader of the conservative party of the Colony and of the 
Commonwealth for forty years. If such a man so thought, what might 
be expected from the younger members, three-fourths of whom had 
actually drawn the sword, and one-fourth of whom had held the high- 
est civil offices, in the great Rebellion of 1776? When Henry touched 
upon this point in his reply to Pendleton, he admitted it, of course, 
urged with that sound, practical sense which was his polar star in poli- 
tics, that, if the power of the purse and the sword were surrendered, 
the State would have no power to enforce its action. 



VIRGINIA CONVENTION OF 1788. 105 

tion assembled, to recall their delegated powers at will, he did 
not see, or failed to recognize, the distinction between the people 
of the United States and the States so pointedly drawn by Henry, 
and the bounden duty of representatives charged with a public 
trust of performing it according to the letter of their instructions 
and the obvious wishes of their constituents. He did not see 
that the example of such a body as the General Federal Con- 
vention, at so early a period in the history of free systems, if 
unchecked and uncondemned, would take away from posterity 
all hope of a limited Convention, and that, when a Convention is 
called to amend a specific system, it may destroy that system en- 
tirely, and introduce even a monarchy in its stead, and be free 
from the blame or censure of those whom they have betrayed. 
It is not enough to say that the people may adopt or reject the 
new scheme at pleasure. That scheme, ushered under the sanc- 
tion of able and honorable men, and sustained by august names 
and an extrinsic authority, is a power in itself; and it is unjust 
to impose upon the people the risk of a battle which they did 
not seek, and which, by the intrigues, of a wealthy and unscru- 
pulous minority, they may lose. 

We may well imagine the feelings with which Henry listened 
to this sophistical, though apparently conclusive, answer to his 
speech of the previous day. In all the great conjunctures of our 
history, in which he had borne a conspicuous part, he had been 
opposed by Pendleton. In the House of Burgesses, in the de- 
bate on his own resolutions against the Stamp Act ; and on the 
bill separating the office of treasurer from that of the speaker, 
the success of which had been hailed as a triumph by the peo- 
ple ; on the resolutions of the March Convention of 1775, put- 
ting the Colony into a posture of defence ; and on nearly all the 
dividing questions in the Conventions and in the House of Dele- 
getes, that old man, then in the meridian of his strength, and 
now in his decline, had opposed him with untiring zeal, and 
made victory itself little more than a drawn battle. There were 
other recollections which might have flashed across the mind of 
the husband and the father. When, young and poorly clad, and 
ruined in fortune, with a wife and children looking to him for 
daily bread, he had ventured, under the unconscious impulse, 
perhaps, of that genius which was in a few short years to invest 
his humble name and the name of his country with unfading lus- 



106 VIRGINIA^ CONVENTION OF 1788. 

tro, as a last resort to seek a license to practice law, with the 
hope of gathering, in the suburbs of a proud profession, a scanty 
support for his family, he had applied to Pendleton for his sig- 
nature, and had been denied so humble a boon a boon which, 
though refused by a man who, like himself, had sprung from the 
people, was promptly granted by the generous Randolphs, whose 
blood could be traced in the veins of men whose career in British 
annals was to be measured by centuries. 

Therefore, the cause which Henry had upheld was successful. 
Was his star to decline now when he believed that he was en- 
gaged in a cause in comparison with which his other contests 
seemed unimportant, and when the liberties of his country were 
at stake ? Some such thoughts may have occurred to him as he 
rose to make one of the greatest exhibitions of his genius which 
his compeers had ever witnessed, and which, though in a muti- 
lated form, has come down to us in the pages of Robertson. 

He was anticipated, however, by Henry Lee, who, rising near 
the chairman, caught his eye, and proceeded to address the 
House. This remarkable young man, now in his thirty-second 
year, was excelled by none of his contemporaries, with the ex- 
ception of Hamilton, who was his junior by a single year, if 
indeed excelled by him, in the display from the beginning to the 
close of the war of the highest qualities in the field, and in his 
subsequent position in the legislature of his native State and in 
the Congress. 113 His brilliant achievements in war had con- 
ferred upon a patronymic known for more than a hundred years 
in the councils of the Colony a fresh and peculiar honor, the 
splendor of which was rather enhanced than diminished by the 
exhibition of those eminent endowments which his kinsmen 
during the Revolution had exerted in civil life. He had taken 
his degree in the college of New jersev in 1773, when he had 
reached his seventeenth year, entering that institution as Madi- 
son was about to leave it, and received the instruction of Wither- 
spoon, whose distinctive praise it was not only to have signed 
with his own hand the Declaration of Independence, but to have 
trained a band of young men who nobly sustained that instru- 



13 It may be worth noting that our fathers always spoke of the Con- 
gress as we speak of the Congress of Verona, or Vienna, a fact not 
without political significance. 



VIRGINIA CONVENTION OF 1788. 107 

ment in the field and in the cabinet, and whose genius ruled in 
the deliberations of the Union from the end of the war until 
nearly the middle of the present century. In 1776, he was 
elected an ensign in one of the Virginia regiments, and was soon 
promoted by Governor Henry to a troop of horse ; and having 
soon been transferred to the North, developed qualities which 
attracted the commander-in-chief, who in due time despatched 
him with a separate command to the South. The skill, gallantry 
and success with which he led his corps amid the complicated 
embarrassments of a long and predatory war in a sickly and 
inhospitable country, have not only made his own name immor- 
tal, but invested the name of his legion with the dignity of a 
household word of the Revolution. His soldiers were hailed 
with the most flattering name. The legion was called the right 
hand of Greene. It was the eye of the army of the South. On 
that great occasion, when, on the evacuation of Charleston by 
the British, whose outstretched canvas, spread upon innumerable 
spars, was seen in the distant offing seeking the Atlantic, Lee, 
at the head of his gallant corps, constituting, as a mark of valor, 
the van of the army of Greene, was the first to enter the lovely 
city of the South. 114 His reputation, which had culminated 
during his Southern campaigns, was regarded as the property of 
Georgia, South Carolina and North Carolina, as well as of Vir- 
ginia; and each of those States would have been proud to offer 
him, in common with his illustrious commander, a home within 
her territory. Returning to his patrimonial estate, he entered 
the General Assembly, and in 1785 he was elected a member of 
the Congress of the Confederation, and was present during the 
discussion of the most momentous Southern question that oc- 
curred in that body. Of his course on that occasion we shall 
treat in another place. His delight, however, was in arms ; and 
when the French Revolution broke out, and France, our old 
ally, was beset by the combined powers of Europe, he wished to 
offer his sword to the young republic, but was dissuaded from 
his purpose by his friends. As a soldier, he enjoyed the unlim- 
ted confidence, respect and esteem of Washington, and he recip- 
rocated the attachment with an affection which was perceptible 
in his entire political career. When the death of. his illustrious 



114 Written in 1857. 1866 alas ! 



108 VIRGINIA CONVENTION OF 1788. 

friend was announced to Congress, the resolutions which were 
adopted by the body, though offered by the hand of another, 
were from his pen ; and in the presence of both houses he pro- 
nounced the funeral oration of the man whom he justly called 
" first in war, first in peace, and first in the hearts of his fellow- 
citizens." Ten years later he won a victory, not achieved in the 
field over prostrate foes, but in the closet the fairest and most 
unfading of all his honors in recording with uncommon grace 
the events of the war in the South. Writing in the shadows of 
a prison, within the bounds of which he had been committed for 
debt, oppressed with pecuniary responsibilities which he was 
unable to meet, anxious to provide for approaching old age, and 
distant from those records without which an accurate and full 
history could not be written, 115 we kriow what his indomitable 
spirit achieved ; but what he would have done in the enjoyment 
of honorable repose, surrounded by admiring friends, in close 
communion with his surviving compeers, whose recollections 
might have corrected and refreshed his own, and with the affec- 
tionate and approving eye of the South watching and cheering 
him in the progress of the history of the war of her deliverance, 
what animated scenes he would have portrayed, now vanished 
forever, how many heroic deeds he would have recorded, never 
to be heard of more, we can only deplore that now we can never 
know. The deep gloom of his latter life was in sad contrast with 
the splendor of its dawn. The brutal treatment which he re- 
ceived in the city of Baltimore from a ruthless banditti on an 
occasion which involved no personal interest of his own, but into 
which he was led by the generous impulse of friendship, while 
it inflicted bodily wounds, from the effects of which he never 
recovered, was yet more revolting to the sensibilities of a gen- 
tleman, a scholar, a soldier, and a patriot; and after a brief 
sojourn in the West Indies, whither he had gone in the vain 
hope of restoring his shattered system, calling at the residence 
of his old commander in the Southern war, who had departed 
before him, but whose hospitable mansion was yet renowned for 
the cordiality of that welcome which his daughter extended to 
the friends of her honored sire, he there breathed his last. A 



115 If he could have consulted Washington's letters and papers, and 
especially his own letters in the cabinet of Mount Vernon, he would 
have been saved from some great mistakes. 



VIRGINIA CONVENTION OF 1788. 109 

gleam of that military pageantry so familiar to his early years 
shone at his grave. His pall, borne by six officers of the army 
and navy along the line of soldiers and sailors who were then 
engaged in the public service at St. Mary's, was conveyed to the 
place of interment, and was buried with the honors of war. 116 

But when he now rose in the vigor of manhood to reply to 
Henry, the spectator would easily believe that the highest honors 
of the new system, in the event of its adoption, would be within 
his reach. From his childhood a noble ambition animated his 
bosom. He knew that his ancestors had time immemorial filled 
many prominent posts in the Colony, and had heard the tradi- 
tion that the house which sheltered him in his infancy, and which, 
abounding in historic associations, is still to be seen by the trav- 
eller as he winds his solitary way through the county of West- 
moreland, had been reared by the munificence of a British queen. 
He had already secured an honorable fame in the field ; and in 
the Congress of the Confederation he had gained some experi- 
ence in civil affairs. Looking forward with the prophetic cast 
of genius, he clearly saw that there were questions in our civil 
affairs which in a few years must be decided, if decided at all, 
by the sword, and that a vigorous and self-sustaining govern- 
ment, by whatever name it might be called, was an element 
almost indispensable to complete success. It was impossible 
that a large and warlike population of savages, hovering like 
vultures on three sides of the Confederacy, daily excited by the 
aggressive progress of the white settler, and fostered by the wiles 



116 General Lee died at Dungeness House, the property of the daugh- 
ter of General Nathaniel Greene, on the evening of the 25th of March, 
1818. When he arrived there from the West Indies, he brought with 
him a number of papers in barrels, and it was thought that he was 
engaged in writing a history of the United States. If these papers 
could be found, they might throw light on several subjects of the war 
of the Revolution. See in the Appendix an extract from an interesting 
letter of a lady giving an account of the funeral of the General, at 
which she was present. There is no separate memoir of Lee that I 
know of; but the reader will find in the latest edition of the letter of 
his son Henry on Mr. Jefferson's books some authentic details, as also 
in a memoir prefixed to an edition of Lee's Memoirs, which was writ- 
ten by his son Charles C. Lee, Esq. [There is a "Life of General Henry 
Lee " prefixed to the third edition of his Memoirs of the War, 8vo, 1870. 
Edited ostensibly by his illustrious son, Robert E. Lee ED.] 



110 VIRGINIA CONVENTION OF 1788. 

of a great military nation which held our frontier posts in the 
face of a solemn treaty, could long be kept down, and that he 
might gather new laurels in a familiar sphere. 117 And if peace, 
contrary to present appearances, should prevail, there were pros- 
pects of a civil career under the new system such as the old 
Confederation, however modified, was not likely to afford. A 
long and prosperous course seemed to lie before him ; and, as he 
was a scholar as well as a politician, there was a vision of a se- 
rene and honored old age, in which he might imitate Xenophon 
an Caesar, and record his history for the eye of future ages. 

His external appearance was in unison with his intellectual 
character. His stature approached six feet ; the expression of 
his handsome face was bland and captivating ; his voice, which 
had been trained in war, and had often been heard in battle amid 
the clangor of charging horsemen, was full and clear, and evi- 
dently modulated in the closet, made a most favorable impres- 
sion upon his audiences. But he was a partisan in the Senate as 
well as in the camp ; and, as he knew the result of a panic 
among soldiers in the beginning of a fight, and saw the effect of 
Henry's first speech on the House, he sought to rally the mem- 
bers by a bold attack upon his most formidable opponent. With 
this view he assailed Henry with a vehemence which few of his 
seniors would have dared to use : " I feel every power of my 
mind," he said, "moved by the language of the honorable gen- 
tleman yesterday. The eclat and brilliancy which have distin- 
guished that gentleman, the honors by which he has been digni- 
fied, and the talents which he has so often displayed, have 
attracted my respect and attention. On so important an occa- 
sion, and before so respectable a body, I expected a new display 
of his powers of oratory ; but, instead of proceeding to investi- 
gate the merits of the new plan of government, the worthy 
character informed us of horrors which he felt, of apprehensions 
in his mind, which made him tremblingly fearful of the fate of 
the Commonwealth. Was it proper, Mr. Chairman, to appea 
to the fear of this House? I trust that he is come to judge, and 
not to alarm. I trust that he, and every other gentleman in this 



117 The fear of Indian hostilities controlled the vote of the Valley of 
Virginia in favor of the Constitution ; and the fate of Harman and St. 
Clair, and the battles of Wayne, very soon justified these apprehen- 



VIRGINIA CONVENTION OF 1788. Ill 

house, comes with a firm resolution coolly and calmly to exam- 
ine, and fairly and impartially to determine. He was pleased to 
pass an eulogium on that character who is the pride of peace 
and the support of war, and declared that, even from him, he 
would require the reason of proposing such a system. I cannot 
see the propriety of mentioning that illustrious character on this 
occasion ; we must all be fully impressed with a conviction of his 
extreme rectitude of conduct. But, sir, this system is to be ex- 
amined on its own merits. He then adverted to the style of the 
government, and asked what authority they had to use the ex- 
pression 'We, the people' instead of 'We, the States.' This 
expression was introduced into that paper with great propriety ; 
this system is submitted to the people for their consideration, 
because on them it is to operate if adopted. It is not binding 
upon the people until it becomes their act. It is now submitted 
to the people of Virginia. If we do not adopt it, it will always 
be null and void to us. Suppose it was found proper for our 
adoption, in becoming the government of the people of Virginia, 
by what style should it be done ? Ought we not to make use of 
the name of the people? No other style would be proper." 
He then spoke of the characters of the men who framed the Con- 
stitution, and continued: "This question was inapplicable, 
strange, and unexpected ; it was a more proper inquiry whether 
such evils existed as rendered necessary a change of govern- 
ment. This necessity is evidenced by the concurrent testimony 
of almost all America. The legislative acts of different States 
avow it. It is acknowledged by the acts of this State ; under 
such an act we are here now assembled. If reference-to the 
Acts of Assembly will not sufficiently convince him of this ne- 
cessity, let him go to our seaports let him see our commerce 
languishing not an American bottom to be seen. Let him ask 
the price of land and of produce in different parts of the coun- 
try ; to what shall we ascribe the very low prices of these ? To 
what cause are we to attribute the decrease of population and 
industry ? 118 and the impossibility of employing our tradesmen 

118 It is to be regretted that the speaker did not specify some fact in 
proof of his assertions. Even Edmund Randolph spoke of the popu- 
lation flowing into Virginia. The truth is that Lee represented the 
landed interest of a particular section which had lost slaves, carried off 
by the enemy, and all its investments in bonds and securities, which 



112 VIRGINIA CONVENTION OF 1788. 

and mechanics ? To what cause will the gentleman impute these 
and a thousand other misfortunes our people labor under? 
These, sir, are owing to the imbecility of the Confederation to 
that defective system which never can make us happy at home 
nor respectable abroad. The gentleman sate down as he began, 
leaving us to ruminate on the horrors which he opened with. 
Although I could trust to the argument of the gentlemen who 
spoke yesterday in favor of the plan, permit me to make one 
observation on the weight of our representatives in the Govern- 
ment. If the House of Commons in England, possessing less 
power, are now able to withstand the power of the Crown ; if 
that House of Commons, which has been undermined by cor- 
ruption in every age, with far less power than our representatives 
posses, is still able to contend with the executive of that country, 
what danger have we to fear that our representatives cannot suc- 
cessfully oppose the encroachments of the other branches of the 
Government? Let it be remembered that in the year 1782 the 
East India bill was brought into the House of Commons. 
Although the members of that House are only elected in part 
by the landed interest, that bill was carried in the House by a 
majority of one hundred and thirty, and the king was obliged to 
dissolve the Parliament to prevent its effect. If, then, the House 
of Commons was so powerful, no danger can be apprehended 
that our House of Representatives is not amply able to protect 
our liberties. I trust that this representation is sufficient to se- 
cure our happiness, and that we may fairly congratulate our- 
selves on the superiority of our Government to that I just 
referred to." 

had been paid off in depreciated currency during the war. As for the 
price of lands, those in Westmoreland and that section had been culti- 
vated for more than a century without domestic or foreign manures, 
and all the lands of the Piedmont country, to say nothing of Kentucky, 
could be purchased on moderate terms, at a time when the money 
flowing in from abroad, to fill the vacuum made by the Revolution, had 
only begun to diffuse itself through the ordinary channels of trade. 
The lands in Westmoreland, even, would have brought as good prices 
at that time as they would have done when the new government had 
been in operation half a century. The great and innumerable facts of 
a prosperous period gradually succeeding a state of depression pass 
unheeded by a common observer ; while some specific grievance, 
which, when properly explained, is no grievance at all, looms in gigan- 
tic proportions. 



VIRGINIA CONVENTION OF 1788. 113 

Henry, who was always placable, and showed through a long 
life an indisposition to engage in personal controversies, and 
who was well aware that clever young men, speaking under the 
excitement of the floor, were prone to utter what in their calmer 
moments they would be the first to condemn, now rose, and after 
a slight recognition of the compliment which Lee paid to his 
genius, passed at once to the discussion of his subject : " I am not 
free from suspicion," he said; " I am apt to entertain doubts. I 
rose yesterday to ask a question which arose in my mind. 
When I asked that question, I thought the meaning of my inter- 
rogation obvious ; the fate of this question and America may 
depend on this. Have they said, ' We, the States ' ? Have 
they made a proposal of a compact between States? If they 
had, this would be a confederation. It is otherwise most clearly 
a consolidated government. The question turns, sir, on that 
poor little thing the expression, ' We, the people,' instead of 
the States of America. I need not take much pains to show that 
the principles of this system are extremely pernicious, impolitic, 
and dangerous. Is this a monarchy like England a compact 
between prince and people, with checks on the former to secure 
the liberty of the latter ? Is this a confederacy like Holland, an 
association of a number of independent States, each of which 
retains its individual sovereignty? It is not a democracy, 
wherein the people retain all their rights securely. Had these 
principles been adhered to, we should not have been brought to 
this alarming transition from a confederacy to a consolidated 
government. We have no detail of those great considerations, 
which, in my opinion, ought to have abounded, before we should 
recur to a government of this kind. Here is a resolution as 
radical as that which separated us from Great Britain. It is as 
radical, if in this transition our rights and privileges are endan- 
gered and the sovereignty of the States be relinquished ; and 
cannot we see that this is actually the case ? The rights of con- 
science, 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, by this change so loudly talked 
of by some, and inconsiderately by others. Is this tame relin- 
quishment of right worthy of freemen ? Is it worthy of that 
manly fortitude that ought to characterize republicans ? 

"It is said that eight States have adopted this plan. I declare 



114 VIRGINIA CONVENTION OF 1788. 

that, if twelve States and a half had adopted it, I would with manly 
firmness, and in spite of an erring world, reject it. You are not 
to inquire how your trade may be increased, nor how you are 
to become a great and powerful people ; but how your liberties 
can be secured, for liberty ought to be the direct end of your 
government. Having premised these things, I shall, with the 
aid of my judgment and information, which, I confess, are not 
extensive, go into the discussion of this system more minutely. 
Is it necessary for your liberty that you should abandon those 
great rights by the adoption of this system ? Is the relinquish- 
ment of trial by jury and the liberty of the press necessary for 
your liberty ? Will the abandonment of your most sacred rights 
tend to the security of your liberty ? Liberty the greatest of 
all earthly blessings give us that precious jewel, and you may 
take everything else. But I am fearful that I have lived long 
enough to become an old-fashioned fellow. Perhaps an invinci- 
ble attachment to the dearest rights of man may in these refined 
and enlightened days be deemed old-fashioned ; if so, I am con- 
tented to be so. I say the time has been when every pulse of 
my heart beat for American liberty, and which, I believe, had a 
counter-part in the breast of every American. But suspicions 
have gone forth suspicions of my integrity publicly reputed 
that my professions are not real. 119 Twenty-three years ago, was 
I supposed to be a traitor to my country ? I was then said to 
be a bane of sedition, because I supported the rights of my 
country." 

" We have come hither to preserve the poor Commonwealth of 
Virginia, if it can possibly be done ; something must be done to 
preserve your liberty and mine. The Confederation this same 
despised government merits in my opinion the highest en- 
comium. It carried us through a long and dangerous war. It 



19 Even Madison, in a letter to Edmund Randolph, dated New York, 
January 10, 1788, talks of Henry's "real designs"; and Washington, 
in the heat of the moment, wrote about Henry and Mason the 
Gamaliels at whose feet he sate for twenty years in a manner that be- 
trayed more passion than judgment. Great as were the merits of 
Washington and Madison, and none rejoices in them more than I do, 
it is simply stating a historical fact in saying that in 1788 neither of 
them stood in the estimation of the Virginia of that day on the same 
platform with Patrick Henry and George Mason as a statesman. 



VIRGINIA CONVENTION OF 1788. 115 

rendered us victorious in that bloody conflict with a powerful 
nation. It has secured us a territory greater than any European 
monarch possesses. And shall a government which has been 
thus strong and vigorous be accused of imbecility and abandoned 
for want of energy ? Consider what you are about to do before 
you part with this government. Take longer time in reckoning 
things. Revolutions like this have happened in almost every 
country in Europe ; similar examples are to be found in ancient 
Greece and ancient Rome ; instances of the people losing their 
liberty by their own carelessness and the ambition of a few." 

After animadverting at length on the inadequate representa- 
tion in the House of Representatives, he then aimed his attacks at 
the system in general. " In some parts of the plan before you," 
he said, "the great rights of freemen are endangered; in other 
parts absolutely taken away. How does your trial by jury stand ? 
In civil cases gone not sufficiently secured in criminal this 
best privilege is gone ! But we are told that we need not fear, 
because those in power, being our representatives, will not abuse 
the powers we put into their hands. I am not well versed in 
history, but I will submit to your recollection whether liberty 
has been destroyed most often by the licentiousness of the peo- 
ple or by the tyranny of rulers ? I imagine, sir, that you will 
find the balance on the side of tyranny. Happy will you be, if 
you miss the fate of those nations, who, omitting to resist their 
oppressors, or negligently suffering their liberty to be wrested 
from them, have groaned under intolerable despotism. Most of 
the human race are now in this deplorable condition. And those 
nations which have gone in search of grandeur, power, and 
splendor, they have also fallen a sacrifice, and been the victims 
of their own folly. While they acquired these visionary bless- 
ings, they lost their freedom." 

" The honorable gentleman who presides (Pendleton) told us 
that to prevent abuses in our government, we will assemble in 
Convention, recall our delegated powers, and punish our servants 
for abusing the trust reposed in them. O ! sir, we should have 
fine times indeed, if to punish tyrants it were only sufficient to 
assemble the people. Your arms wherewith you could defend 
yourselves are gone ! You have no longer an aristocratical, no 
longer a democratical spirit. Did you ever read of any revolu- 



116 VIRGINIA CONVENTION OF 1788. 

tion in any nation brought about by the punishment of those in 
power inflicted by those who have no power at all ? " 

He then contrasts the security of the State government founded 
on the Declaration of Rights with the various provisions of the 
Federal Constitution, and opposes the policy of direct taxation. 
"The voice of tradition," he said, "will, I trust, inform pos- 
terity of our struggles for freedom. If our descendants be 
worthy of the name of Americans, they will preserve and hand 
down to the latest posterity the transactions of the present time ; 
and although my exclamations are not worthy the hearing, they 
will see that I have done my utmost to preserve their liberty. 
For I will never give up the power of direct taxation but for a 
scourge. I am willing to give it conditionally, that is, after a 
non-compliance with requisitions. I will do more, sir, and what 
I hope will convince the most skeptical man that I am a lover of 
the American Union ; that, in case Virginia shall not make 
punctual payment, the control of our custom-houses and the 
whole regulation of our trade shall be given to Congress, and 
that Virginia shall depend upon Congress even for passports, 
till Virginia shall have paid the last farthing, and furnished the 
last soldier. Nay, sir, there is another alternative to which I 
would consent ; even that they should strike us out of the Union 
and take away from us all Federal privileges, till we comply with 
Federal requisitions ; but let it depend on our own pleasure to 
pay our money in the most easy manner for our people. Were 
all the States, more terrible than the mother country, to join 
against us, I hope Virginia could defend herself ; but, sir, the 
dissolution of the Union is most abhorrent to my mind. The 
first thing I have at heart is American liberty ; the second thing 
is American union." He then proceeded to show the incom- 
patibility of direct taxation at the same time by the Federal and 
State governments, drawing a vivid picture of the malfeasance 
of the State sheriffs who acted under the eye of the Assembly, 
and of the utter ruin of the people by the combined array of 
Federal and State collectors, and closing the part of his speech 
with a declaration that " on this subject he should be an infidel 
till the day of his death." 

When he had rallied for a moment, he continued his general 
examination of the new plan, opening with that description of 



VIRGINIA CONVENTION OF 1788. 117 

the Constitution which has been repeated so often since by the 
school- boy and the statesman, " This Constitution is said to have 
beautiful features ; but when I come to examine these features, 
sir, they appear to me horribly frightful. Among other de- 
formities it has an awful squintingit squints towards monarchy. 
And does not this raise indignation in the breast of every true 
American ? Your President may easily become king. Your 
Senate is so imperfectly constituted that your dearest rights may 
be sacrificed by what may be a small minority, and a very small 
minority may continue forever unchangeably this Government 
although horribly defective. Where are your checks in this 
Government ? Your strongholds will be in the hands of your 
enemies. If your American chief be a man of ambition and 
abilities, how easy it is for him to render himself absolute ! 
The army is in his hands, and if he be a man of address, it will 
be attached to him ; and it will be a subject of long meditation 
with him to seize the first auspicious moment to accomplish his 
designs. And, sir, will the American spirit solely relieve you 
when this happens ? I would rather infinitely, and I am sure 
most of this Convention are of the same opinion, have a king, 
lords, and commons, than a government so replete with insup- 
portable evils. If we make a king, we may prescribe the rules 
by which he shall rule his people, and interpose such checks as 
shall prevent him from infringing them ; but 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 Ameri- 
can to get his neck from under the galling yoke. I cannot with 
patience think of this idea. If ever he violates the laws, one of 
two things will happen : he will come at the head of his army to 
carry every thing before him, or he will give bail to do what 
Mr. Chief Justice will order him. 120 If he be guilty, will not the 
recollection of his crimes teach him to make one bold push for 
the American throne? Will not the immense difference between 
being master of everything, and being ignominiously tried and 
punished, powerfully excite him to make this bold push ? But, 
sir, where is the existing force to punish him ? Can he not at 

120 This was uttered in the presence of gentlemen, two of whom 
afterwards became President of the United States, one of whom be- 
came Chief Justice, and another of whom became a Justice of the 
Supreme Court. 



118 VIRGINIA CONVENTION OF 1788. 

% . 

the head of his army beat down every opposition ? Away with 
your President ; we shall have a king. The army will salute 
him monarch ; your militia will leave you and assist in making 
him king, and fight against you. And what have you to oppose 
this force? What will then become of you and your rights? 
Will not absolute despotism ensue?" (Here, says the reporter, 
Mr. Henry strongly and pathetically expatiated on the proba- 
bility of the President's enslaving America, and the horrid con- 
sequences that must result). 

He then passed on to the subject of the elections under the 
Constitution, which he discussed at length ; and when he had 
examined the argument of Lee, derived from the composition of 
the House of Commons, apologized for the time he had con- 
sumed and for his departure from the order adopted by the Con- 
vention, and indulged the hope that the House would allow him 
the privilege of again addressing it, ending with the prayer, 
" may you be fully apprized of the dangers of the new plan of 
government, not by fatal experience, but by some abler advo- 
cate than I." 

The speech of Henry lasted more than three hours, and was 
not only the longest he ever made, but the most eloquent ever 
pronounced in public bodies. 121 Two well-authenticated instances 
of its effect have come down to us. General Thomas Posey was 
an officer of distinction in the army of the Revolution, was sub- 
sequently second in command under Wayne in the successful 

121 I am inclined to think that this was the longest speech made by 
Henry during the session. Judge Curtis (History of the Constitution, 
&c., II, 558, note) reports a newspaper rumor that Henry spoke on 
some one occasion seven hours, and thinks it was when this speech was 
delivered. Pendleton and Lee, the only speakers that day, did not 
consume much of the morning before Henry began and spoke till the 
adjournment. We know that the speech of Randolph, delivered in 
reply the following day consumed two hours and a half, and that Madi- 
son and George Nicholas made long and elaborate speeches after him. 
In the debates, the speech of Randolph occupies more space than the 
speech of Henry, but in the case of the latter, we have the confession 
of the reporter that he could not follow him in his pathetic appeals. 
Tradition affirms that if Henry had offered at the close of his speech 
a motion of indefinite postponement of the Constitution, it would have 
succeeded by a considerable majority. The testimony of General 
Posey would lead us to think so. 



VIRGINIA CONVENTION OF 1788. 119 

Indian campaigns of that general, and was warmly in favor of 
the adoption of the Constitution ; yet he declared to a friend that 
he was so overpowered by the eloquence of Henry on this occa- 
sion as to believe that the Constitution would, if adopted, be the 
ruin of our liberties as certainly as he believed in his own exist- 
ence ; that subsequent reflection reassured his judgment, and 
his well considered opinion resumed its place. 122 Mr. Best, an 
intelligent gentleman of Nansemond, who heard the fervid de- 
scription which Henry gave of the slavery of the people wrought 
by a Federal executive at the head of his armed hosts, declared 
that so thrilling was the delineation of the scene, " he involun- 
tarily felt his wrists to assure himself that the fetters were not 
already pressing his flesh ; and that the gallery on which he was 
sitting seemed to become as dark as a dungeon." 123 

An incident occurred while Henry was speaking which shows 
that the feelings of the husband and father were not wholly lost 
in those of the patriot. As his eye ranged over the house, when 
in the height of his argument, he caught the face of his son, 
whom he had left a few days before in Prince Edward as the pro- 
tector of his family during his absence, and he knew that some 
important domestic event had brought him to Richmond. He 
hesitated for a moment, stooped down, and with a full heart 
whispered to a friend who was sitting before him : " Dawson, I 
see my son in the hall ; take him out." Dawson instantly with- 
drew with young Henry, and soon returned with the grateful 
intelligence that Mrs. Henry had been safely delivered of a son, 
and that mother and child were doing well. That new-born 
babe, called from a maternal ancestor Spotswood, lived to become 
familiar with the features of his father's face, and to enjoy his 
splendid fame ; and in the quiet burial-ground of Red Hill, at 
the mature age of sixty-five, was laid by his side. 13 * 

122 Life of Dr. A. Alexander by his son, page 190. 

128 Letter of Joseph B. Whitehead, Esq., to the author. To save 
repetition, the reader will regard all letters, when the name of the per- 
son to whom they are written is not stated, as addressed to the author. 
One evidence of the effect of the speech was seen in the fact that the 
following day three of the strongest federalists, Randolph, Madison, 
and George Nicholas, the last the most powerful man of the three in 
debate at a great crisis, occupied the whole of the session. 

124 Henry, on his return home, told this fact to his wife, who told it to 
her son John, who told it to me. 



VIRGINIA CONVENTION OF 1788. 



When Henry finished his speech Edmund Randolph rose to 
deprecate the irregular mode of debate and the departure from 
the order of the House. He said that if the House proceeded in 
that irregular manner, contrary to its resolution, instead of three 
or six weeks, it would take six months to decide the question. 
He should endeavor to make the committee sensible of the neces- 
sity of establishing a national Government, and the inefficacy 
of the Confederation. He should take the first opportunity of 
doing so ; and he mentioned the fact merely to show that he had 
not answered the gentleman fully, nor in a general way, yester- 
day. The House then adjourned. 




CHAPTER III. 

The effect of Henry's speech both in and out of the House 
had been great. It startled the friends of the new system from 
that sense of security in which the more sanguine had indulged ; 
and they saw that unless prompt measures were adopted to 
counteract the present feeling all hopes of a successful issue 
would be vain. Accordingly, on Friday, the sixth day of June, 
and the fifth of the session, the federalists summoned to the field 
the most able array of talents, which, abounding as they did 
in able men, their ranks afforded. It was feared that Henry 
might rise to deepen the impression which he had already made ; 
for Randolph in his few remarks the previous day had not se- 
cured the floor, and every effort must be exerted to prevent such 
an untoward movement. It was evidently arranged that Ran- 
dolph should discuss the whole subject in an elaborate speech ; 
that Madison, who had been ill, should be on the alert to suc- 
ceed him; and should his feeble health prevent him from con- 
suming the entire day, that George Nicholas, who was more 
familiar with large public bodies than either Randolph or Mad- 
ison, should exhaust the remainder of the sitting. 

When the President called the Convention to order, a debate 
arose on the returns of an election case, which was soon dis- 
patched, and the House resolved itself into committee Wythe 
in the chair. As soon as he was fairly seated, Edmund Ran- 
dolph rose to reply to the speech delivered by Henry. In an 
exordium of rare beauty, in which he called himself a child of 
the Revolution, he alluded to the early manifestations of affec- 
tion to him by Virginia at a time when, from peculiar circum- 
stances well known to the House, he needed it most, and to the 
honors which had been bestowed upon him ; and in which he 
declared that it should be the unwearied study of his life to pro- 



If 

122 VIRGINIA CONVENTION OF 1788. 

% 

mote her happiness, and that in a twelvemonth he should with- 
draw from all public employments. Then launching into his 
subject, " We are told," he said, " that the report of dangers is 
false. The cry of peace, sir, is false; it is but a sudden calm. 
The tempest growls over you. Look around : wheresoever you 
look you see danger. When there are so many witnesses in 
many parts of America that justice is suffocated, shall peace and 
happiness still be said to reign ? Candor requires an undis- 
guised representation of our situation. Candor demands a 
faithful exposition of facts. Many citizens have found justice 
strangled and trampled under foot through the course of juris- 
prudence in this country. Are those who have debts due them 
satisfied with your Government ? Are not creditors wearied 
with the tedious procrastination of your legal process? a pro- 
cess obscured by legislative mists. Cast your eyes to your sea- 
ports see how commerce languishes. This country, so blessed 
by nature with every advantage that can render commerce 
profitable, through defective legislation is deprived of all the 
benefits and emoluments which she might otherwise reap from 
it. We hear many complaints of located lands a variety of 
competitors claiming the same lands under legislative acts ; 125 
public faith prostrated, and private confidence destroyed. I 
ask you if your laws are reverenced ? In every well-regulated 
community the laws command respect. Are yours entitled to 
reverence? We not only see violations of the Constitution, but 
of national principles, in repeated instances. 

" How is the fact ? The history of the violations of the Consti- 
tion from the year 1776 to this present time violations made by 
formal acts of the Legislature. Everything has been drawn 
within the legislative vortex. There is one example of this vio- 
lation in Virginia of a most striking and shocking nature an 
example so horrid that if I conceived my country would pas- 
sively permit a repetition of it, dear as it is to me, I would seek 
means of expatriating myself from it. A man who was then a 
citizen was deprived of his life in the following manner : From 
mere reliance on general reports, a gentleman in the House of 
Delegates informed that body that a certain man ( Josiah Philips) 
had committed several crimes, and was running at large perpe- 



125 A hit at George Mason, who drew the first land law. 



VIRGINIA CONVENTION OF 1788. 123 

tr'ating other crimes. He therefore moved for leave to attaint 
him. He obtained that leave instantly. No sooner did he ob- 
tain it than he drew from his pocket a bill ready written for that 
effect. It was read three times in one day, and carried to the 
Senate. I will not say that it passed the same day through the 
Senate ; but he was attainted very speedily and precipitately, 
without any proof better than vague reports. Without being 
confronted with his accusers and witnesses, without the privilege 
of calling for evidence in his behalf, he was sentenced to death, 
and was afterwards actually executed. Was this arbitrary depri- 
vation of life, the dearest gift of God to man, consistent with 
the genius of a republican government ? Is this compatible with 
the spirit of freedom ? This, sir, has made the deepest impres- 
sion on my heart, and I cannot contemplate it without horror. 

126 The reader must keep in mind that this severe tirade against the 
legislation of Virginia was designed by the speaker to reflect partly on 
Mason, but especially on Henry, who, throughout the war and until the 
session of the Convention, bore a leading part either in the executive 
or legislative department of the State. But never was an orator more 
unfortunate than Randolph in his selection of an instance of tyranny. 
The case of Philips was presented to the Assembly, not by a member, 
but by the Governor (Henry), who enclosed the letter of Colonel Wil- 
son, of Norfolk county, detailing the enormities perpetrated on un- 
offending and helpless women and children in the county of Princess 
Anne by that infamous outlaw. The message of the Governor was re- 
ferred to a committee of the whole, which reported a resolution at- 
tainting Philips. A bill was brought in accordingly, was read on three 
several days as usual, was passed and sent to the Senate, which adopted 
it without amendment. Nor was Philips executed in consequence of 
the act of attainder. On the contrary, having been apprehended, he 
was indicted for highway robbery by Randolph himself, who was Attor- 
ney General at the time, an after a fair trial by a jury was condemned 
and executed. Possibly, as Randolph was clerk of the House of Dele- 
gates (as well as Attorney-General) at the time, he may have remem- 
bered that Harrison was speaker of the body at the time, and that 
Tyler was one of the committe which brought in the bill, both of whom 
were members of the present Convention, and were warmly opposed 
to the'new Constitution. But granting for the sake of argument that 
at the most trying period of the Revolution the people of Princess 
Anne, instead of hanging a desperate outlaw to the first tree, sought to 
attain their end by an act of attainder, and that the wretch had suffered 
accordingly, what does it prove? Simply that there were occasional 
errors in the legislation of the State at a difficult crisis errors that 



124 VIRGINIA CONVENTION OF 1788. 

% 

There are still a multiplicity of complaints of the debility of the 
laws. Justice in many cases is so unattainable that commerce 
may be said in fact to be stopped entirely. There is no peace, 
sir, in this land. Can peace exist with injustice, licentiousness, 
insecurity and oppression ? These considerations, independent 
of many others which I have not yet enumerated, would be a 
sufficient reason for the adoption of this Constitution, because it 
secures the liberty of the citizen, his person and property, and 
will invigorate and restore commerce and industry." 

He argued at length to prove that the excessive licentiousness 
which has resulted from the relaxation of the laws would be 
checked by the new system ; that the danger and impolicy of 
waiting for subsequent amendments were extreme ; that jury 
trial was safe or would readily be made safe ; that the position 
and the connections of the Swiss Cantons were so diverse from 
ours that no argument drawn from them was applicable to the 
present case ; that the extent of a country was not an insuper- 
able objection to a national government ; that the union was 
necessary to Virginia from her accessibility by sea, from her 
proximity to Maryland and Pennsylvania, which had adopted the 
Constitution, from the number of savages on her borders, and 
from the presence of the black population. "The day may 
come," he said, " when that population may make an impression 
upon us. Gentlemen who have long been accustomed to the 
contemplation of the subject, think there is cause of alarm in this 
case. The number of those people, compared to that of the 
whites, is in an immense proportion. Their number amounts to 
two hundred and thirty-six thousand; that of the whites only to 
three hundred and fifty-two thousand. 127 Will the American 



might have occurred under any form of government, and that might 
argue an amendment of the State Government, and not of a Confeder- 
ation. It may not be amiss to say that Randolph was a warm advocate 
of a Convention to amend the Constitution of the State. 

127 By the census of 1790, the number of whites in Virginia, including 
the district of Kentucky, was 442,115 ; the number of blacks, 293,427; 
and the whole population, including all other persons, was 748,308. 
Either the figures of Randolph are far below the actual population of 
the State in 1788, or the census taken two years later indicates a won- 
derful increase ; and it is known that the census of 1790 underated our 
numbers. 



VIRGINIA CONVENTION OF 1788. 125 

spirit so much spoken of, repel an invading enemy or enable you 
to obtain an advantageous peace ? Manufactures and military 
stores may afford relief to a country exposed. Have we these 
at present? If we shall be separated from the Union, shall our 
chance of having these be greater, or will not the want of these 
be the more deplorable ? 

He spoke of the debts due to foreign nations to France, 
Spain, England, and Holland and the ability of those powers 
to close our ports on our failure to comply with their demands. 
"Suppose," he said, "the American spirit in fullest vigor in 
Virginia, what military preparations and exertions is she capable 
of making? The other States have upwards of three hundred 
and thirty thousand men capable of bearing arms. Our militia 
amounts to fifty thousand, or say sixty thousand. In case of an 
attack, what defence can we make ? The militia of our country 
will be wanted for agriculture. Some also will be necessary for 
manufactures and those mechanic arts which are necessary for 
the aid of the farmer and the planter. If we had men sufficient 
in number to defend ourselves, it could not avail without other 
requisites. We must have a navy, to be supported in time of 
peace as well as in war, to guard our coasts and defend us 
against invasion. The maintaining a navy will require money ; 
and where can we get money for this and other purposes? How 
shall we raise it ? Review the enormity of the debts due by this 
country. The amount of debt we owe to the continent for bills 
of credit, rating at forty to one, will amount to between six and 
seven hundred thousand pounds. 128 There is also due the con- 
tinent the balance of requisitions due by us ; and in addition to 
this proportion of the old continental debt, there are the foreign, 
domestic, State-military, and loan-office debts ; to which, when 
you add the British debt, where is the possibility of finding 
money to raise an army or navy ? Review your real ability. 
Shall we recur to loans ? Nothing can be more impolitic ; they 
impoverish a nation. We, sir, have nothing to repay them ; nor 
can we procure them. If the imposts and duties in Virginia, 
even on the present footing, be very unproductive and not equal 
to our necessity, what would it be if we were separated from the 
Union ? From the first of September to the first of June, the 

i?s Virginia currency; the pound at $3.33X- 



126 VIRGINIA CONVENTION OF 1788. 

amount put into the treasury is only fifty-nine thousand pounds, 
or a little more. 129 But if smuggling be introduced in conse- 
quence of high duties, or otherwise, and the Potomac should be 
lost, what hope of getting money from these ? Our commerce 
will not be kindly received by foreigners if transacted solely by 
ourselves. It is the spirit of commercial nations to engross as 
much as possible the carrying trade. This makes it necessary 
to defend our commerce ; but how shall we compass this end ? 
England has arisen to the greatest height in modern times by 
her navigation act and other excellent regulations. The same 
means would produce the same effect. We have inland navi- 
gation. Our last exports did not exceed pne millions of pounds 
value. Our export trade is entirely in the hands of foreigners. 
I beg, gentlemen, to consider these two things : our inability to 
raise and man a navy, and the dreadful consequences of a disso- 
lution of the Union." 

He next adverts to an argument used by Henry. "It is 

129 The exact amount from November 3oth, 1787 to November, 1788, 
derived from customs, was seventy four thousand pounds ; and as the 
average of the tariff was very low, not exceeding two per cent., we can 
readily see the amount of the imports during that period. The whole 
receipts in that interval, including customs, reached ^"417,498 93 S^d, 
collected from a people as industrious and quiet as existed on the face 
of the globe. This immense commerce, it must be remembered, 
sprang from nothing to its present amount in about four years and a 
little more ; and proves that the talk about our commerce gone forever 
and our languishing industry, was only the talk of politicians. Even 
Randolph admits that our population was increasing ; but he did not 
appreciate the enormous accessions that had been made and were 
daily making from abroad, and especially from the Northern States. 
As for what Randolph denounces as want of justice and violations of 
the Constitution of the State by the General Assembly, they were mere 
matters of opinion among public men, and unknown to the mass of the 
people. Let the reader consult the report of the Committee of the 
House of Delegates on the Treasury, made on the igth of December, 
1788, (Journal House of Delegates, 106) and note the amount of back 
taxes which were gradually coming in from the poorer counties, and 
the various items of receipts, and the sum of money paid down, and 
he will see an exhibit honorable to any country. It was in the society 
in which Randolph moved, men formerly of princely wealth, who had 
suffered seriously by the war, as such classes always do, that the talk 
about declining agriculture and vanishing commerce was heard. 



VIRGINIA CONVENTION OF 1788. 127 

insinuated," he said, "by the honorable gentleman that we want 
to be a grand, splendid and magnificent people. We wish not 
to become so. The magnificence of a royal court is not our 
object. We want government, sir ; a government that will have 
stability and give us security ; for our present Government is des- 
stitute of the one and incapable of producing the other. It can- 
not with propriety be denominated a government, being void of 
that energy requisite to enforce sanctions. I wish my country 
not to be contemptible in the eyes of foreign nations. A well 
regulated community is always respected. It is the internal 
situation, the defects of government, that attracts foreign con- 
tempt. That contempt, sir, is too often followed by subjugation." 
" The object of a federal government," he said, " is to remedy 
and strengthen the weakness of its individual branches, whether 
that weakness arises from situation or from any external cause. 
With respect to the first, is it not a miracle that the confederation 
carried us through the war ? It was our unanimity that carried 
us through it. That system was not ultimately concluded till the 
year 1781. Although the greatest exertions were made before 
that time, when came requisitions for men and money, its defects 
then were immediately discovered. The quotas of men were 
readily sent ; not so those of money. One State feigned inabil- 
ity ; another would not comply till the rest did ; and various 
excuses were offered, so that no money was sent into the treasury 
not a requisition was fully complied with. Loans were the 
next measure fallen upon. Upwards of eighty millions of dollars 
were wanting, beside the emissions of dollars forty for one. 
These things show the impossibility of relying on requisitions." 
" Without adequate powers vested in Congress, America cannot be 
respectable in the eyes of other nations. Congress ought to be 
fully vested with power to support the Union; protect the interests 
of the United States; maintain their commerce and defend them 
from external invasions and insults and internal insurrections ; to 
maintain justice and promote harmony and public tranquility 
among the States. A government not vested with these powers 
will ever be found unable to make us happy or respectable. How 
the Confederation is different from such a government is known 
to all America. What are the powers of Congress ? They have 
full authority to recommend what they please; this recommenda- 
tory power reduces them to the condition of poor supplicants. 



1'28 VIRGINIA CONVENTION OF 1788. 

Consider the dignified language of the members of the American 
Congress. May it please your high mightiness of Virginia to 
pay your just proportionate quota of our national debt; we 
humbly supplicate that it may please you to comply with your 
federal duties. Their operations are of no validity when counter- 
acted by the States. Their authority to recommend is a mere 
mockery of government. But the amendability of the Confed- 
eration seems to have great weight on the minds of some gentle- 
men. To what points will the amendments go ? What part 
makes the most important figure? What part deserves to be 
retained ? In it one body has the legislative, executive and judi- 
cial powers ; but the want of efficient powers has prevented the 
dangers naturally consequent on the union of these. Is this 
union consistent with an augmentation of their powers ? Will 
you, then, amend it by taking away one of these three powers ? 
Suppose, for instance, you only vested it with the legislative and 
executive powers without any control on the judiciary, what must 
be the result ? Are we not taught by reason, experience and 
governmental history that tyranny is the natural and certain con- 
sequence of uniting these two powers, or the legislative and 
judicial powers excusively, in the same body? Whenever any 
two of these three powers are vested in one single body, they 
must at one time or other terminate in the destruction of liberty. 
In the most important cases the assent of nine States is necessary 
to pass a law. This is too great a restriction, and whatever good 
consequences it may in some cases produce, yet it will prevent 
energy in many other cases. It will prevent energy which is 
most necessary in some emergencies, even in cases wherein the 
existence of the community depends on vigor and expedition. 
It is incompatible with that secrecy which is the life of execution 
and despatch. Did ever thirty or forty men retain a secret ? 
Without secrecy no government can carry on its operations on 
great occasions ; this is what gives that superiority in action to 
the government of one. If anything were wanting to complete 
this farce, it would be that a resolution of the Assembly of Vir- 
ginia and the other legislatures should be necessary to confirm 
and render of any validity the congressional acts ; this would 
openly discover the debility of the general Government to all the 
world. An act of the Assembly of Virginia, controverting a 
resolution of Congress, would certainly prevail. I therefore con- 



VIRGINIA CONVENTION OF 1788. 129 

elude that the Confederation is too defective to deserve correction. 
Let us take farewell of it with reverential respect as an old bene- 
factor. It is gone whether this House says so or not. It is gone, 
sir, by its own weakness." 

He thus concluded : " I intended to show the nature of the 
powers which ought to have been given to the general Govern- 
ment, and the reason of investing it with the power of taxation ; 
but this would require more time than my strength or the patience 
of the committee would now admit of. I shall conclude with a 
few objections which come from my heart. I have labored for 
the continuance of the Union the rock of our salvation. I be- 
lieve that, as sure as there is a God in Heaven, our safety, our 
political happiness and existence, depend on the union of the 
States ; and that without this union the people of this and the 
other States will undergo the unspeakable calamities which dis- 
cord, faction, turbulence, war and bloodshed, have produced in 
other countries. The American spirit ought to be mixed with 
American pride to see the Union magnificently triumphant. Let 
that glorious pride, which once defied the British thunder, reani- 
mate you again. Let it not be recorded of America that, after 
having performed the most gallant exploits, after having over- 
come the most astonishing difficulties, and after having gained 
the admiration of the world by their incomparable valor and 
policy, they lose their acquired reputation, their national conse- 
quence and happiness, by their own indiscretion. Let no future 
historian inform posterity that they wanted wisdom and virtue to 
concur in anv regular efficient government. Catch the present 
moment seize it with avidity and eagerness for it may be lost, 
never to be regained. If the Union be now lost, I fear it will 
remain so forever. I believe gentlemen are sincere in their op- 
position, and actuated by pure motives ; but when I maturely 
weigh the advantages of the Union and the dreadful conse- 
quences of dissolution ; when I see safety on my right and de- 
struction on my left ; when I behold respectability and happiness 
acquired by the one, but annihilated by the other, I cannot hesi- 
tate to decide in favor of the former. I hope my weakness for 
speaking so long will apologize for my leaving this subject in so 
mutilated a condition. If a further explanation be desired, I 
shall take the liberty to enter into it more fully another time." 

This able, eloquent, and patriotic speech, which consumed two 



130 vmqiNiA CONVENTION OF 1788. 

hours and a half in the delivery, was received with warm ap- 
plause by the friends of the speaker, and with the admiration 
which genius and talents always inspire in the breasts of honor- 
able opponents. Before his manly form had disappeared in the 
mass of the house, and the tones of his sonorous voice had 
ceased to fill that crowded hall, Madison, diminutive in stature 
and weak from recent illness, rose to address the Assembly. 
Nought but a sense of public duty, upheld by a proud con- 
sciousness of superior worth, would have impelled him at that 
moment to such a serious undertaking. His few first sentences 
were wholly inaudible. When his voice was more assured he was 
understood to say that he would not attempt to make impres- 
sions by ardent professions of zeal for the public welfare ; that 
the principles of every man will be, and ought to be, judged, not 
by his professions and declarations, but by his conduct ; by that 
criterion he wished, in common with every other member, to be 
judged ; and should it prove unfavorable to his reputation, yet 
it was a criterion from which he would by no means depart. He 
said the occasion demanded proofs and demonstration, not 
opinion and assertion. " It gives me pain," he said, " to hear 
gentlemen continually distorting the natural construction of lan- 
guage ; for it is sufficient if any human production can stand a 
fair discussion. Before I proceed to make some additions to the 
reasons which have been adduced by my honorable friend over the 
way (Randolph), I must take the liberty to make some observa- 
tions on what was said by another gentleman (Henry). He told 
us this Constitution ought to rejected because it endangered the 
public liberty. Give me leave to make one answer to that obser- 
vation : let the dangers which this system is supposed to be re- 
plete with be clearly pointed out ; if any dangerous and unneces- 
sary powers be given to the general legislature, let them be 
plainly demonstrated ; if powers be necessary, apparent danger 
is not a sufficient reason against conceding them. He has sug- 
gested that licentiousness has seldom produced the loss of liberty; 
but that the tyranny of rulers has almost always effected it. 
Since the general civilization of mankind, I believe there are 
more instances of the abridgement of the freedom of the 
people by gradual and silent encroachments of those in power, 
than by violent and sudden usurpations. On a candid ex- 
amination of history we shall find that turbulence, violence, 



VIRGINIA CONVENTION OF 1788. 131 

and abuse of power, by the majority trampling on the rights of 
the minority, have produced factions and commotions, which, in 
republics, have more frequently than any other cause produced 
despotism. If we go over the whole history of ancient and 
modern republics, we shall find their destruction to have gener- 
ally resulted from those causes. If we consider the peculiar 
situation of the United States, and what are the sources of that 
diversity of sentiment which pervades their inhabitants, we shall 
find great danger to fear that the same causes may terminate 
here in the same fatal effects which they produced in those re- 
publics. This danger ought to be wisely guarded against. Per- 
haps in the progress of this discussion it may appear that the 
only possible remedy for those evils, and the means of preserv- 
ing and protecting the principles of republicanism, will be found 
in that very system which is now exclaimed against as the parent 
of oppression." 

He next reverts to Henry's observation that the people were 
at peace until the new system was put upon them : "I wish sin- 
cerely, sir, this were true. If this be their happy situation, why 
has every State acknowledged the contrary ? Why were'depu- 
ties from all the States sent to the General Convention ? Why 
have complaints of national and individual distresses been echoed 
and re-echoed throughout the continent ? Why has our general 
government been so shamefully disgraced and our Constitution 
violated? Wherefore have laws been made to authorize a 
change, and wherefore are we now assembled here?" 130 After 

130 This argument, when used by Mr. Madison, was hardly fair. He 
knew that the Annapolis resolution had brought about the present 
state of things, and that he had offered that resolution when Virginia 
had settled upon a plan to arrange her commercial relations with Mary- 
land, Pennsylvania, and other States. That arrangement was com- 
pleted by the Assembly by the selection of five delegates, consisting of 
St. George Tucker, William Ronald, Robert Townsend Hooe, Thomas 
Pleasants, and Francis Corbin, on the 25th of November, 1786, and it 
was believed that our Federal relations were at an end for the session, 
and a large number of the members had probably left for their homes ; 
when, on the 3oth of the same month, or five days later, and on the 
last day of the session, Mr. Madison caused the Annapolis resolution to 
be called up, to be hurried through the House, and sent to the Senate, 
which body passed it within an hour after receiving it. But two mem- 
bers in the House opposed the resolution. It was plain that the sequel 



132 VIRGINIA CONVENTION OF 1788. 

replying to Henry's arguments on the majority of three-fourths, 
on the exclusive legislation of Congress in the federal district, 
on the provision concerning the militia, and on the tendency of 
power once transferred never to be voluntarily renounced, he 
discussed the objection that the raising and supporting of armies 

of the resolution was mainly a matter of course, and afforded no legiti- 
mate argument to Mr. Madison, who was privy to the whole game. 
Nor was it quite fair for Mr. Madison to talk of the Constitution of the 
State as having been violated. These so-called violations were by acts 
of the Assembly, not by violence ; and on Madison's own principles 
the Legislature might be authorized to take what liberties they pleased 
with that instrument ; for he contended in his speech on the Conven- 
tion question in the House of Delegates, at the May session of 1784, 
that the Convention of May. 1776, which framed the Constitution, was 
4l without due power from the people ;" that it was framed in conse- 
quence of the recommendation of Congress of the isth of May (which 
is a great mistake, as the Virginia resolution of absolute independence 
was adopted on that very day, and a resolution to report a plan of gov- 
ernment for an independent State also, while the resolution of the i5th 
of May [or rather the loth, see Folwell's edition of the Journals of 
Congress, II, 158], which was only a re-enactment of the resolution of 
Congress of the previous year, advising the colonies to form such a 
plan of government ''as would most effectually secure good order in 
the province diiring the present dispute between Great Britain and the 
colonies''' was a temporizing measure only), which was prior to the 
Declaration of Independence ; that the Convention that framed the 
Constitution did not " pretend " that they had received "any power 
from the people " for that purpose ; that they passed other ordinances 
during the same session that were deemed "alterable;" that they 
made themselves a branch of the Legislature under the Constitution 
which they had framed; that the Constitution, if it be so called, etc., 
etc. (Rives' Madison, I, 559.) It is thus evident that in Madison's de- 
liberate judgment the Constitution of Virginia had no higher dignity 
than other ordinances of the Convention, which all admit were altera- 
ble ; and that it was competent for the legislature, in Mr. Madison's 
opinion, to alter the instrument at pleasure. It was then a little pru- 
dish to blame the Assembly for doing what they had a right to do, or 
to apply any other test than that of expediency to their action. We 
have shown in a previous note our views upon this subject, and will 
merely add that Mr. Randolph's views were quite as capricious as 
those of Mr. Madison, as that gentleman alleged in the course of one 
of his speeches in Convention that the Declaration of Rights was no 
part of the Constitution, and, of course, of no obligation whatever. It 
is necessary to know what ideas these gentlemen had of the Constitu- 
tion before we can estimate what they call "violations " of it. 



VIRGINIA CONVENTION OF 1788. 133 

was a dangerous element in the Constitution. With apparent 
candor he declared that he wished there was no necessity of 
vesting this power in the general Government. " But," he said, 
"suppose a foreign nation to declare war against the United 
States ; must not the general legislature have the power of de- 
fending the United States ? Ought it to be known to foreign 
nations that the general Government of the United States of 
America has no power to raise and support an army, even in the 
utmost danger, when attacked by external enemies ? Would not 
their knowledge of such a circumstance stimulate them to fall 
upon us ? If, sir, Congress be not invested with this power, any 
powerful nation, prompted by ambition or avarice, will be invited 
by our weakness to attack us ; and such an attack by disciplined 
veterans would certainly be attended with success when only op- 
posed by irregular, undisciplined militia. Whoever considers 
the peculiar situation of this country, the multiplicity of its ex- 
cellent inlets and harbors, and the uncommon facility of attack- 
ing it however he may regret the necessity of such a power 
cannot hesitate a moment in granting it. One fact may elucidate 
this argument. In the course of the late war, when the weak 
parts of the Union were exposed, and many States were in the 
most deplorable condition by the enemies ravages, the assistance 
of foreign nations was thought so urgently necessary for our 
protection that the relinquishment of territorial advantages was 
not deemed too great a sacrifice for the acquisition of one ally. 
This expedient was admitted with great reluctance, even by those 
States who expected advantages from it. The crisis, however, 
at length arrived, when it was judged necessary for the salvation 
of this country to make certain cessions to Spain, whether wisely 
or otherwise is not for me to say ; but the fact was that instruc- 
tions were sent to our representative at the court of Spain to 
empower him to enter into negotiations for that purpose. How 
it terminated is well known. This fact shows the extremities to 
which nations will go in cases of imminent danger, and demon- 
strates the necessity of making ourselves more respectable. The 
necessity of making dangerous cessions, and of applying to for- 
eign aid, ought to be excluded." 

When he had replied to the argument derived from the policy 
of the Swiss Cantons in their confederate alliance, and stated his 
impression that uniformity of religion, which he thought ineligi- 



134 VIRGINIA CONVENTION OF 1788. 

ble, would not necessarily flow from uniformity of government, 
and that the government had no jurisdiction over religion, he 
adverted to the policy of previous amendments, contending that 
if amendments are to be proposed by one State, other States 
have the same right, and will also propose alterations, which 
would be dissimilar and opposite in their nature. u I beg leave," 
he said, " to remark that the governments of the different States 
are in many respects dissimilar in their structure ; their legisla- 
tive bodies are not similar ; their executive are more different. 
In several of the States the first magistrate is elected by the peo- 
ple at large ; in others by joint ballot of the members of both 
branches of the legislature ; and in others in a different mode 
still. This dissimilarity has occasioned a diversity of opinion on 
the theory of government, which will, without many reciprocal 
concessions, render a concurrence impossible. Although the 
appointment of an executive magistrate has not been thought 
destructive to the principles of democracy in many of the States, 
yet, in the course of the debate, we find objections to the federal 
executive. It is argued that the President will degenerate into 
a tyrant. I intended, in compliance with the call of the honor- 
able member, to explain the reasons of proposing this Constitu- 
tion and develop its principles ; but I shall postpone my remarks 
till we hear the supplement, which, he has informed us, he in- 
tends to add to what he has already said." 

He next investigated the nature of the government, and 
whether it was a consolidated system as had been urged by 
Henry. On this subject, he said, " there are a number of 
opinions ; but the principal question is whether it be a federal 
or consolidated government. In order to judge properly of the 
question before us, we must consider it minutely in its principal 
parts. I conceive myself that it is of a mixed nature ; it is in a 
manner unprecedented. We cannot find one express example in 
the experience of the world. It stands by itself. In some re- 
spects it is a government of a federal nature ; in others it is of 
a consolidated nature. Even if we attend to the manner in 
which the Constitution is investigated, ratified, and made the act 
of the people of America, I can say, notwithstanding what the 
honorable gentleman has alleged, that this Government is not 
completely consolidated, nor is it entirely federal. Who are 
parties to it ? The people but not the people as composing one 



VIRGINIA CONVENTION OF 1788. 135 

great body ; but the people as composing thirteen sovereignties. 
Were it, as the gentleman asserts, a consolidated government, 
the assent of the majority of the people would be sufficient for 
its establishment ; and as a majority has adopted it already, the 
remaining States would be bound by the act of the majority, 
even if they unanimously reprobated it. Were.it such a gov- 
ernment as suggested, it would now be binding upon the people 
of this State, without their having had the privilege of deliberating 
upon it. 131 But, sir, no State is bound by it, as it is without its 
own consent. Should all the States adopt it, it will thtn be a 
government established by the thirteen States of America, not 
through the intervention of the legislature, but by the people at 
large. In this particular respect the distinction between the ex- 
isting and proposed governments is very material. The existing 
system has been derived from the dependent derivative au- 
thority of the legislatures of the States ; whereas this is derived 
from the superior power of the people. If we look at the man- 
ner in which alterations are to be made in it, the same idea is in 
some degree attended to. By the new system a majority of the 
States cannot introduce amendments; nor are all the States re- 
quired for that purpose. Three-fourths of them must concur in 
alterations ; in this there is a departure from the federal idea. 
The members to the national House of Representatives are to 
be chosen by the people at large, in proportion to the numbers 
in the respective districts. When we come to the Senate, its 
members are elected by the States in their equal and political 
capacity. But had the Government been completely consolidated, 
the Senate would have been chosen by the people in their indi- 
vidual capacity, in the same manner as the members of the other 
house. Thus it is of a complicated nature, and this complica- 
tion will, I trust, be found to exclude the evils of absolute con- 
solidation, as well as of a mere confederacy. If Virginia was 
separated from all the States, her power and authority would ex- 
tend to all cases ; in like manner, were all powers vested in the 
general Government it would be a consolidated government; but 
the powers of the Federal Government are enumerated ; it can 



131 This is an obvious sophism. Each State is called upon in the usual 
mode to say whether a particular system, be that system what it may, 
shall be henceforth its plan of government. Its mode of assent or 
dissent from the scheme cannot be called a part of the scheme itself. 



136 VIRGINIA CONVENTION OF 1788. 

only operate in certain cases ; it has legislative powers on de- 
fined and limited objects, beyond which it cannot extend its juris- 
diction." 

This reasoning of Madison, in seeking to establish the nature 
of a government from the mode of conducting elections pre- 
scribed by the rule creating it, is sophistical and unjust, and wars 
at once with sound philosophy and simple truth. Had William 
the Third been elected under the declaration of right by the 
people of Great Britain, assembled at the polls, instead of a con- 
vention of both houses of Parliament, the nature of the govern- 
ment which he was invited to administer would not have been 
altered by the change, rie would still have been the King of 
England, the occupant of a hereditary throne, bound to rule 
according to the instrument which contained his right to the 
crown. Nor is the case altered by the frequent recurrence of 
elections under a particular system. The mode of electing the 
agents of that system cannot affect the nature of the system 
itself, which is fixed and unalterable except in the way agreed upon 
by its framers. It is evident that Madison believed the new 
government to be a consolidated system. The favorite term of 
a complete consolidation is a mere play upon words. A govern- 
ment must be either integral or federal. In can no more be both 
than an individual can like the fabulous centaur of antiquity, be 
at one and the same time half a man and half a brute. If he is 
human at all he is human all over; if he is a brute at all he is a 
brute all over. So with a collection of human beings united in 
a political system. If that system is integral at all it is wholly 
integral ; if federal at all it is wholly federal. Details may com- 
plicate and disguise, but cannot alter the nature of the thing. 

Thus the new constitution was the chart of a strictly federal 
system. Had not Madison been swayed by early prepossessions, 
his admirable powers of analysis and his unrivalled stores of 
historic lore would have enabled him to furnish a conclusive 
answer to the arguments of Mason and of Henry, and to force 
those able men from their strongest ground to a contest on the 
mere details of the constitution a ground peculiarly his own. 
Ten years later the true argument would instantly have risen to 
his lips. He would have said that compacts between States, like 
compacts between private persons, might be as various as the 
necessities or interests of the parties should require ; that a com- 



VIRGINIA CONVENTION OF 1788. 137 

pact which should embrace an infinite variety of details bearing 
directly or indirectly on persons and things, however voluminous, 
was as strictly a federal alliance as an ordinary treaty of a few 
sections. Under the Confederation, he might have said, the legis- 
lative, judicial and executive powers were vested in a single body 
which might exercise them in the manner most conducive to the 
public welfare ; that revenue was obtained by requisitions on the 
States ; and that all control over the customs was denied to Con- 
gress ; that the same parties which made these arrangements 
could abolish them and substitute others in their place ; might 
decree that the legislative, judicial and executive powers should 
be exercised by separate bodies under certain limitations ; that 
money should be obtained by levying a tax on persons and things 
in any given mode ; that the entire revenue accruing from customs 
should be appropriated by the central agency ; that these and 
other changes might be made, and that the nature of the federal 
alliance, however changed in outward form, would be no more 
changed in reality than an individual would be changed by throw- 
ing off the clothing of one season and putting on the clothing of 
another. 

When Madison had concluded his review of the nature of the 
proposed Government, he adverted to the argument of Henry 
against the large powers which had been conferred by the Consti- 
tution on Congress. "I conceive," he said, "that the first ques- 
tion on this subject is whether these powers be necessary; if they 
be, we are reduced to the dilemma of either submitting to the 
inconvenience or of losing the Union. Let us consider the most 
important of these reprobated powers ; that of direct taxation is 
most generally objected to. With respect to the exigencies of 
government, there is no question but the most easy mode for 
providing for them will be adopted. When, therefore, direct 
taxes are not necessary they will not be recurred to. It can be 
of little advantage to those in power to raise money in a manner 
oppressive to the people. To consult the conveniences of the 
people will cost them nothing, and in many respects will be ad- 
vantageous to them. Direct taxes will only be recurred to for 
great purposes. What has brought on other nations those im- 
mense debts, under the pressure of which many of them labor ? 
Not the expenses of their governments, but war. If this country 
should be engaged in war and I conceive we ought to provide 



138 VIRGINIA CONVENTION OF 1788. 

for the possibility of such a case how would it be carried on ? 
By the usual means provided from year to year? As our im- 
ports will be necessary for the expenses of government and other 
common exigencies, how are we to carry on the means of de- 
fense? How is it possible a war could be supported without 
money or credit ? And would it be possible for a government to 
have credit without having the power of raising money ? No ; 
it would be impossible for any government in such a case to de- 
fend itself. Then, I say, sir, that it is necessary to establish 
funds for extraordinary exigencies, and to give this power to the 
general Government ; for the utter inutility of previous requisi 
tions upon the States is too well known. Would it be possible 
for those countries, whose finances and revenues are carried to 
the highest perfection, to carry on the operations of government 
on great emergencies, such as the maintenance of a war, without 
an uncontrolled power of raising money? Has it not been 
necessary for Great Britain, notwithstanding the facility of the 
collection of her taxes, to have recourse very often to this and 
other extraordinary methods of procuring money ? Would not 
her public credit have been ruined if it was known that her power 
to raise money was limited? Has not France been obliged on 
great occasions to use unusual means to raise funds ? It has 
been the case in many countries, and no government can exist 
unless its powers extend to make provisions for every contin- 
gency. If we were actually attacked by a powerful nation, and 
our general Government had not the power of raising money, 
but depended solely on requisitions, our condition would be truly 
deplorable ; if the revenue of this Commonwealth were to de- 
pend on twenty distinct authorities, it would be impossible for it 
to carry on its operations. This must be obvious to every mem- 
ber here; I think, therefore, that it is necessary, for the preser- 
vation of the Union, that this power shall be given to the general 
Government." 

It had been urged by Henry and Mason that the consolidated 
nature of the Government, combined with the power of direct 
taxation, would eventually destroy all subordinate authority, and 
result in the absorption of the State governments. Madison 
thought that this would not be the case. " If the general Gov- 
ernment," he said, " were wholly independent of the govern- 
ments of the particular States, then indeed, usurpation might be 



VIRGINIA CONVENTION OF 1788. 139 

expected to the fullest extent. But, sir, on whom does this gen- 
eral Government depend ? It derives its authority from these 
governments, and from the same sources from which their au- 
thority is derived. The members of the Federal Government 
are taken from the same men from whom those of the State leg- 
islatures are taken. If we consider the mode in which the fed- 
eral representatives will be chosen, we shall be convinced that 
the general will never destroy the individual governments ; and 
this conviction must be strengthened by an attention to the con- 
struction of the Senate. The, representatives will be chosen 
probably under the influence of the members of the State legis- 
latures ; but there is not the least probability that the election of 
the latter will be influenced by the former. One hundred and 
sixty members represent this Commonwealth in one branch of 
the legislature, are drawn from the people at large, and must ever 
possess more influence than the few men who will be elected to 
the general legislature." 

He concluded by showing that the members of Congress 
would depend for their election on the popular men in the differ- 
ent counties, and the members of the Senate, appointed by the 
legislatures, would not be likely to forget or defy the source of 
their existence ; that the biennial exclusion of one-third of the 
number of Federal senators would lessen the facility of combi- 
nations ; that the members of Congress had hitherto "signalized 
themselves by their attachment to their seats," and were not 
likely to neglect the interests of their constituents : closing this 
remarkable speech in these words: "I wish this Government 
may answer the expectation of its friends, and foil the apprehen- 
sions of its enemies. I hope the patriotism of the people will 
continue, and be a sufficient guard to their liberties. I believe 
its tendency will be that the State governments will counteract 
the general interest and ultimately prevail. The number of rep- 
resentatives is yet sufficient for our safety and will gradually in- 
crease ; and if we consider their different sources of information, 
the number will not appear too small." 

It must ever be a source of regret to the student of history 
that a more extended report of this speech, revised by its author, 
has not been preserved. With all the faithful care of Robertson 
the existing report is hardly more than an outline of the original. 
The beautiful philosophy with which he illustrated the various 



140 VIRGINIA CONVENTION OF 1788. 

causes which led to the loss of liberty among the nations of the 
earth wholly escaped the reporter ; and when, forty years later, 
an opportunity was presented on the republication of the debates 
to fill the void, a refined sense of delicacy, which we may admire 
while we deplore the result, impelled him to decline it. 

But, however attractive and eloquent was the performance of 
Randolph ; however rich in the philosophy of history and in its 
application to the subject in hand, and in its wonderful display 
of the probable working of the new system, was the effort of 
Madison ; the speech which was now to be made, was, in logical 
vigor and practical sense, and in its present force on a popular 
body, perhaps more effective than either of its predecessors of 
this remarkable day. 

George Nicholas succeeded Madison in the debate. Of all 
the friends of the Constitution he was the most formidable to 
Henry. His perfect acquaintance with all the local and domestic 
topics of State policy, and especially of the whole system of 
legislation, in which he was a prominent actor since the dawn of 
the Commonwealth; his connections by descent and affinity with 
the old aristocratic families ; his physical qualities, which made 
him equally fearless in the House and out of the House, were 
evinced by his civil and 'military career since manhood ; his great 
powers of minute and sustained argumentation, so minute and so 
sustained that posterity in perusing the debates of the Convention 
will hesitate in awarding the palm of superiority to Madison; his 
expositions of the Constitution more elaborate in their details 
than those of Madison, added to his character of a thorough and 
unflinching representative of the patrimonial feuds and preju- 
dices with which from his early life Henry had been continually 
battling, made his opposition not only unwelcome but galling to 
the opponents of the new system. It was alike difficult to evade 
and repel his attacks. Henry would neutralize the speeches of 
Madison by the thunders of his oratory, and he could throw 
Randolph from his balance by a covert sarcasm discernible only 
by the person who felt its sting ; but neither oratory nor sarcasm 
availed in a contest with Nicholas, who was as potent in the war 
of wit as he was irresistible by the force of his logic. Not that 
Nicholas possessed or coveted wit in its higher manifestations ; 
but his knowledge of his opponents had supplied him with such 
an array of facts bearing on their past history, that, by a mar- 



VIRGINIA CONVENTION OF 1788. 141 

shalling of their absurdities and inconsistencies, he could pro- 
duce in the way of argument an effect similar to that wrought by 
a faculty which he did not possess, and of which in his busy and 
speculating life he never felt the want. He now rose to address 
himself specially to Henry, and analyzed his arguments with a 
severity of discrimination that neither Madison, who never forgot 
the statesman in the debates, nor Randolph, who, under the 
pressure of the interminable topics crowding upon him, was 
compelled to pass over many, and to touch lightly upon others, 
could not well imitate. On this occasion, as on others, Nicholas 
was fortunate in his reporter. He discussed a single topic at a 
time ; his style of argument was clear and was within the reach 
of the stenographer, who, by the aid of his recollections and by 
his own skill in argument, could impart a completeness to a speech 
of Nicholas, which is almost wholly wanting to the speeches of 
Henry and Randolph, and even of Madison. 

He began by saying that if the resolution taken by the House 
of going regularly through the system, clause by clause, had 
been followed, he could have confined himself to one particular 
paragraph; but as, to his surprise, the debates have taken a dif- 
ferent turn, he would follow the train of the argument of the 
gentleman in opposition. Then, addressing himself to Henry, 
1 ' the worthy gentleman, ' ' he said, " entertained us very largely on 
the impropriety and dangers of the powers given by this plan 
to the general Government; but his argument appears to me in- 
conclusive and inaccurate. It amounts to this : that the powers 
given to any government ought to be small ; a new idea in poli- 
tics. Powers being given for some certain purpose ought to be 
proportionate to that purpose, or else the end for which they 
were delegated will not be assured. If a due medium be not 
observed in the delegation of such powers, one of two things 
must happen : if they be too small, the Government must moulder 
and decay away ; if too extensive, the people must be oppressed. 
As there can be no liberty without government, it must be as 
dangerous to make powers too limited as too great. He objects 
to the expression ' We, the people,' and demands the reason 
why they had not said, ' We, the United States of America.' In 
my opinion, the expression is highly proper: it is submitted to 
the people, because on them it is to operate ; till adopted, it is but 
a dead letter, and not binding on any one ; when adopted, it 



142 VIRGINIA CONVENTION OF 1788. 

becomes binding on the people who adopted it. It is proper on 
another account. We are under great obligations to the Federal 
Convention for securing to the people the source of all power." 
He then animadverts on the difficulties apprehended from two 
sets of collectors, from direct taxes, from a reduction of the 
number of representatives, from being taxed without our con- 
sent, from the suspension of the writ of habeas corpus, and from 
the want of responsibility, discussing each topic with syllogistic 
force, and following Henry step by step throughout his speech. 
One argument on the subject of Northern influence has an inter- 
est at this day. " The influence," he observed, "of New Eng- 
land and the .other Northern States is dreaded; there are appre- 
hensions of their combining against us. Not to advert to the 
improbability and illiterality of this idea, it must be supposed 
that our population will in a short period exceed theirs, as their 
country is well settled, and we have very extensive uncultivated 
tracts. We shall soon outnumber them in as great a degree as 
they do us at this time ; therefore, this Government, which, I 
trust, will last to the remotest ages, will be very shortly in our 
favor." His answer to the argument on the want of responsi- 
bility in the representatives of the new Constitution shows the 
summary manner in which he dealt with the objections of Henry. 
" We are told," he said, "that there is wanting in this Govern- 
ment that responsibility which has been the salvation of 
Great Britain, although one-half of the House of Commons pur- 
chase their seats. It has already been shown that we have much 
greater security from our federal representatives than the people 
in England can boast. But the worthy member has found out a 
way of solving our difficulties. He tells us that we have nothing 
to fear if separated from the adopting States ; but to send on our 
money and men to Congress. In that case, can we receive the 
benefits of the union ? If we furnish money at all, it will be our 
proportionate share. The consequence will be that we shall pay 
our share without the privilege of being represented. So that, 
to avoid the inconvenience of not having a sufficient number of 
representatives, he would advise us to relinquish the number we 
are entitled to, and have none at all." This speech would have 
been received in such a body as the House of Commons with 
heartier applause than either the speech of Randolph or the 
speech of Madison. It is, however, the speech rather of a wily 



VIRGINIA CONVENTION OF 1788. 143 

logician whose paramount object is to overthrow his opponent, 
than of a politician who embraces in his view the interests of a 
remote posterity. It is the speech of an emissary of Westmin- 
ster Hall entering St. Stephen's on a special retainer, and in- 
structed to answer Burke's speech on American conciliation. 

At the close of the speech of Nicholas, the House rose and 
cordial greetings were exchanged by the friends of the Constitu- 
tion. Even their opponents could not deny that three such 
speeches as had been delivered at that sitting had never before 
been heard in a single day in a deliberative assembly of Virginia. 
A contemporaneous account has come down to us. Immediately 
on the adjournment, Bushrod Washington wrote to his uncle 
that Governor Randolph made an able and elegant harangue of 
two hours and a half; that Madison followed with such force of 
reasoning and a display of such irresistible truths that opposition 
seemed to have quitted the field, and that Nicholas concluded 
the day with a very powerful speech inferior to none that had 
been made before as to close and connected argument. Wash- 
ington went so far as to say that Madison's speech had made 
several converts to the Constitution. 132 

On the following day (Saturday, the seventh of June), as soon 
as some election details were disposed of, Wythe was called to 
the chair of the committee, the first and second sections of the 
Constitution still under consideration. While the expectation 
of the public was eager to hear the reply of Henry to the three 
powerful opponents who had spent the whole of the previous day 
in answering his objections to the Constitution, a young man 
whose person was unknown to the elder spectators, rose and pro- 
ceeded to address the House in defence of the new plan. Francis 
Corbin m was descended from an ancestor who, near the middle 

132 B. Washington to G. Washingtofi, June 6, 1788 . Writings of Wash- 
ington, IX, 378, note. When Nicholas made this speech he was thirty- 
two ; Madison and Randolph, both of whom were born in 1751, were 
thirty-seven. 

133 Of the lineage of Robert Corbion or Corbin, who gave lands to 
the Abbey of Talesworth in 1154 and 1161. Francis Corbin was third 
in descent from Henry Corbin (and his wife, Alice Eltonhead), born 
1629; came to Virginia 1654; member of the House of Burgesses for 
old Lancaster county, 1658-9 and of the Council from 1663 to his death, 
January 8, 1675 ; acquired a great landed estate, his seat being " Buck- 



144 VIRGINIA CONVENTION OF 1788. 

of the seventeenth century, had emigrated to the Colony, who 
had acquired great wealth, and who had risen to distinction in 
the public councils. From the date of the arrival of the ancestor 
to that of the Revolution the family which he founded had en- 
joyed high consideration, and in the public acts and in the civil 
and religious proceedings relative to the county of Middlesex the 
name of Corbin always appears with honor. 134 Inheriting from 
the patriarch of his race a reverence for kingly government, the 
representative of the family at the Revolution, then advanced in 
life, had been suspected of co-operating with some of his rela- 
tives who had taken sides with the Bristish, and had been placed 
under surveillance by the Convention of 1775. Francis, then a 
mere lad, was sent over to England and had spent the entire 
period of the war of the Revolution in attendance on British 
schools and at the University. On his return, he soon entered 
the Assembly, where his fine person, his polished manners, his 
talents in debate, his knowledge of foreign affairs, aided by the 
prestige of an ancient name, were observed and applauded. He 
was not far from thirty and had opposed the passage of the reso- 
lution convoking the meeting of Annapolis; 135 but, fascinated 
by its supposed beauties, had given in his adhesion to the new 
system. The speech which he made sustains the reputation 
which he had acquired in the House of Delegates and fully 
evinces the zeal and success with which, amid the allurements of 
a fashionable residence abroad, he had cultivated the powers of 
his mind and the strict observation with which he had surveyed 
the political systems of that age. He made a neat apology for 
engaging in a debate in which so many older and abler men had 
taken part and replied in detail to the arguments of Henry. His 

ingham House," in Middlesex county. He was born in 1760; sent to 
England at an early age and educated at Canterbury school, Cambridge, 
and at the Inner Temple ; returned to Virginia about 1783 and resided at 
"Buckingham House," and subsequently at "The Reeds," Caroline 
county ; memoer of the House of Delegates from Middlesex county 
1787-1793 and other years, and of the Convention of 1788; died June 
15, 1821; married Anne Munford, of " Blandfield," Essex county, 
Virginia. ED. 

134 Bishop Meade's Old Churches, &c., I, 357. 

135 Mr. Madison states that Meriwether Smith and Corbin were the 
only persons who spoke against the Annapolis resolution. Madison to 
Monroe, January 22, 1786. See the letter in Rives' Madison, II, 65. 



VIRGINIA CONVENTION OF 1788. 145 

definition of the new system was ingenious. "There are contro- 
versies," he observed, "about the name of this Government. It 
is denominated by some, federal ; by others, a consolidated gov- 
ernment. The definition given of it by my honorable friend (Mr. 
Madison) is, in my opinion, accurate. Let me, however, call it 
by another name a representative federal republic as contra- 
distinguished from a confederacy. The former is more wisely 
constructed than the latter. It places the remedy in the hands 
which feel the disorder ; the other places the remedy in those 
hands which cause the disorder." Another view of this young 
statesman displayed a perspicuity which was not so fully appar- 
ent among his more prominent coadjutors and deserves to be 
recorded. The hostility manifested by the opponents of the 
Constitution was founded very much upon the belief that the 
ordinary revenues of the new Government would be drawn from 
that source ; and had such been the result, it is hardly probable 
that the new system would have survived the last century. Cor- 
bin saw the danger to which the Constitution was exposed from 
such a quarter, and having examined with uncommon pains and 
research all the records and other sources of intelligence within 
his reach, showed that " the probable annual amount of duties 
on imported articles throughout the continent, including West 
India produce, would, from the best calculation he could procure, 
exceed the annual expenses of the administration of the general 
Government, including the civil list, contingent charges, and the 
interest of the foreign and domestic debts, by eighty or ninety 
thousand pounds ; which would enable the United States to dis- 
charge in a few years the principal debts due to foreign nations ; 
and that in thirty years that surplus would enable the United 
States to perform the most splendid enterprises." He then con- 
cluded that no danger was to be apprehended from the power 
of direct taxation "since there was every reason to believe that 
it would be very seldom used " a prediction which, but for two 
special exceptions of short duration, would have almost been 
strictly verified. 136 

we Written in 1857. Corbin, in describing Henry's style, speaks of 
" the elegance of his periods," and he was familiar with the best 
models of that age. He also alludes to a motion made in the House 
of Delegates in 1789, which Henry approved, of vesting in Congress 



146 . VIRqiNIA CONVENTION OF 1788. 

He spoke nearly an hour, and, on taking his seat was warmly 
congratulated on his chaste and statesmanlike effort. Henry 
then rose and expressed a wish that Randolph should continue 
his observations left unfinished the day before, and that he would 
now give him, as he had already done, a most patient hearing, as 
he wished to be informed of everything that gentlemen could 
urge in defence of that system which appeared to him so defect- 
ive. Randolph resumed his remarks, and spoke at great length 
and, perhaps, with even greater ability than he had yet done, 
reviewing what had been said by his opponents, pointing out in 
detail the defects of the Confederation, and stating some of the 
defects of the proposed system which had led him to withhold 
his signature from it in the General Convention. He gave way 
to Madison, who made, perhaps, the most elaborate and the most 
profound speech delivered during the entire session of the Con- 
vention, in which he exhibited with the skill of a political phil- 
osopher the nature and defects of the Amphyctionic and Achaian 
leagues of the Germanic body of the Swiss Confederation, and 
of the confederate government of Holland, not overlooking the 
ancient union of the colonies of Massachusetts, Bristol, Con- 
necticut, and New Hampshire, quoting his authorities in full, and 
concluding with an application of all the facts and reasons of his 
grand argument to the case in hand. Henry rose in reply. He 
spoke of the value of maxims, which have attracted the admira- 
tion of the virtuous and the wise in all nations, and have stood 
the shock of ages that the bill of rights of Virginia contains 
those admirable maxims dear to every friend of liberty, of virtue 
and manhood ; that their observance was essential to our security; 
that it was impiously inviting the avenging hand of Heaven, 
when a people, who are in the full enjoyment of freedom, launch 
out in the wide ocean of human affairs, and desert those maxims 
which alone can preserve liberty. " Now, sir," he said, " let us 
consider whether the picture given of American affairs ought to 
drive us from those beloved maxims. The honorable gentle- 
man (Randolph) has said it is too late in the day for us to reject 
this new plan. That system which was once execrated by the 
honorable member must now be adopted, let its defects be ever 

the power of forcing delinquent States to pay their respective quotas, 
without, however, alluding to Henry's course on that occasion. 



VIRGINIA CONVENTION OF 1788. 147 

so glaring. That honorable member will not accuse me of want 
of candor, when I cast in my mind what he has given the pub- 
lic, 137 and compare it with what has happened since. It seems to 
me very strange and unaccountable that that which was the 
object of his execration should now receive his encomiums. 
Something extraordinary must have operated so great a change 
in his opinion. It is too late in the day ! I never can believe, 
sir, that it is too late to save all that is precious. At present, we 
have our liberties and privileges in our own hands. Let us not 
adopt this system till we see them secure. There is some small 
possibility that should we follow the conduct of Massachusetts, 
amendments might be obtained. There is a small possibility of 
amending any government ; but, sir, shall we abandon our most 
inestimable rights, and rest their security on a mere possibility ? 
If it be amended every State will accede to it ; but by an impru- 
dent adoption in its defective and dangerous state, a schism must 
inevitably be the consequence. I can never, therefore, consent 
to hazard our most inalienable rights on an absolute uncer- 
tainty. You are told that there is no peace, although you fondly 
flatter yourselves that all is peace; no peace a general cry and 
alarm in the country commerce, riches and wealth vanished 
citizens going to seek comfort in other parts of the world laws 
insulted many instances of tyrannical legislation. These things 
are new to me. The gentleman has made the discovery. As to 
the administration of justice, I believe that failure in commerce 
cannot be attributed to it. My age enables me to recollect its 
progress under the old government. I can justify it by saying 
that it continues in the same manner in this State as it did under 
the former government. As to other parts of the continent, I 
refer that to other gentlemen. As to the ability of those who 
administer our Government, I believe that they could not suffer 
by a comparison with those who administered it under the royal 
authority. Where is the cause of complaint that the wealthy go 
away ? Is this, added to the other circumstances, of such enor- 
mity, and does it bring such danger over this Commonwealth as 
to warrant so important and so awful a change in so precipitate a 

137 Governor Randolph's letter to the Speaker of the House of Dele- 
gates of Virginia, heretofore alluded to, which may be seen in Elliot's 
Debates, I, 482. 



148 VIRGINIA CONVENTION OF 1788. 

manner? As to insults offered to the laws, I know of none. In 
this respect, I believe this Commonwealth would not suffer by a 
comparison with the former government. The laws are as well 
executed and as patiently acquiesced in as they were under the 
royal administration. Compare the situation of the country 
compare that of our citizens to what it was then and decide 
whether persons and property are not as safe and secure as they 
were at that time. Is there a man in this Commonwealth whose 
person can be insulted with impunity ? Cannot redress be had 
here for personal insults or injuries, as well as in any part of the 
world ? as well as in those countries where aristocrats and mon- 
archs triumph and reign ? Is not the protection of property in 
full operation here ? The contrary cannot with truth be charged 
on this Commonwealth. Those severe charges which are exhib- 
ited against it appear to be totally groundless. On a fair investi- 
gation we shall be found to be surrounded with no real dangers." 
He adverted to the case of Josiah Philips, which Randolph had 
introduced, and, overlooking the fact that he had been tried on 
an indictment for highway robbery and not under the act of at- 
tainder, justified his execution on the ground of his being an out- 
law and enemy of the human race. He insisted that the middle 
and lower ranks of the people were not discontented; that if 
there were discontents, they existed among politicians whose 
microscopic vision could see defects in old systems, and whose 
illuminated imaginations discovered the necessity of a change. 
He urged that by the confederation the rights of territory were 
secured ; that under the new system, you will most infallibly 
lose the Mississippi. He declared that we might be confederated 
with the adopting States without ratifying this system. "You 
will find no reductions of the public burdens by this system. 
The splendid maintenance of the President, and of the members 
of both houses, and the salaries and fees of the swarm of officers 
and dependents of the Government, will cost the continent im- 
mense sums. Double sets of collectors will double the expenses ; 
to those are to be added oppressive excise men and custom- 
house officers. The people have an hereditary hatred of cus- 
tom-house officers. The experience of the mother country leads 
me to detest them." 138 

138 The hostility to tax gatherers of all kinds, which Henry here ex- 
pressed, as on several other occasions during the session, reminds us 



VIRGINIA CONVENTION OF 1788. 149 

An incident in the delivery of this speech should be noted, not 
so much on its own account, as tending to show the temper of 
Randolph and Henry toward each other, which resulted the fol- 
lowing day in one of the most celebrated parliamentary explo- 
sions in our annals. In the course of his remarks Henry had 
animadverted upon the words "We, the people," as designed to 
appeal to the prejudices of the people. " The words," he con- 
tended, "were introduced to recommend it to the people at 
large to those citizens who are to be levelled and degraded to a 
herd, and who, by the operation of this blessed system, are to be 
transformed from respectable independent citizens to abject de- 
pendent subjects or slaves. The honorable gentleman (Ran- 
dolph) has anticipated what we are to be reduced to by degrad- 
ingly assimilating us to a herd." Here Randolph rose and 
said that he did not use that word to excite any odium, but 
merely to convey an idea of a multitude. Henry replied that 
the word had made a deep impression on his mind, and that he 
verily believed that system would operate as he had said. He 
then said : " I will exchange that abominable word for requisi- 
tions requisitions which gentlemen affect to despise, have noth- 
ing degrading in them. On this depends our political prosperity. 
I will never give up that darling word requisitions. My country 
may give it up. A majority may wrest it from me ; but I will 
never give it up till my grave. Requisitions are attended with 
one singular advantage. They are attended by deliberation." 

When Henry concluded his remarks the House rose. Thus 
closed the first week of the Convention, during which we have 
seen that Henry stood alone in opposition to a phalanx of the 
ablest men of that era ; for, with the exception of a speech from 
Mason, he had received no assistance from his friends. It was 
easy, however, to perceive, from his last effort as well as from 
the tone of his opponents, that, instead of losing ground, he was 
evidently advancing ; that his arguments were more compact and 
guarded ; that his sarcasm, though within the limits of the 
strictest decorum, wore a keener edge, and that he would either 



of Dr. Johnson's definition of the word excise "a hateful tax levied 
upon commodities, and adjudged, not by the common judges of prop- 
erty, but wretches hired by those to whom excise is paid." Johnson's 
Folio Dictionary, Ed. 1765. 



150 VIRGINIA CONVENTION OF 1788. 

ultimately triumph or make the victory of his opponents hardly 
worth the wearing. 139 

139 It was often remarked by the contemporaries of Henry that his 
best school of preparation on any great question was listening to the 
speeches of those who engaged in the debate. A friend informs me 
that he " spent several days with the late James Marshall, of Fauquier, 
a brother of the Chief Justice, a gentleman of almost as high intellect 
as the Judge, and of more various accomplishments, who told him that 
Henry's opponents in debate, to contrast their knowledge with his 
want of it, would often display ostentatiously all they knew respecting 
the subject under discussion, and that, consequently, when they were 
done speaking Mr. Henry knew as much of the subject in hand as they 
did. Then the superiority of his intellect would show itself in the per- 
fect mastery which he would evince over the whole subject. 'And if,' 
said Mr. Marshall, 'he spoke three times on the same subject, which 
he sometimes did, his last view of it would be the clearest and most 
striking that could be conceived.'" C. C. Lee, Esq., letter dated De- 
cember 6, 1856. 




CHAPTER IV. 

On Monday, the ninth of June, the combatants, refreshed by 
the rest of the Sabbath, returned with new vigor to the field. 
The House had now gone through with the election details 
which had heretofore consumed the first half hour of the morn- 
ing, and immediately went into committee. The first and second 
sections of the first article of the Constitution were still the nom- 
inal order of the day ; but the debate from the first had compre- 
hended the entire scope of that instrument. The rumors of 
great debates had spread over the neighboring counties, and the 
crowd that pressed the hall and the galleries seemed rather 
to increase than diminish. Henry and Mason, who had, 
according to their usual habit, walked arm in arm from the Swan, 
were seen to pause a few moments at the steps of the Academy, 
evidently engaged in consultation, and with difficulty made their 
way to their seats in the house. 140 

Wythe had just taken the chair, when Henry rose to conclude 
his unfinished speech of Saturday. His first sentences were 
short and broken, as if uttered to assure himself of his voice and 
position. He then introduced a topic which had long been 
dreaded by his opponents, but which startled them like a clap 
of thunder in a clear sky. "There is one thing," he said, 
" that I must mention. There is a dispute between us and the 
Spaniards about the right of navigating the Mississippi. This 
dispute has sprung from the Federal Government. I wish a 
great deal may be said upon the subject. In my opinion, the 
preservation of that river calls for our most serious considera- 
tion. It has been agitated in Congress. Seven States have 

140 On the authority of the Rev. Mr. Clay, of Bedford, who was a 
member of the Convention. 



152 VIRGINIA CONVENTION OF 1788. 

% 

voted so, as that it is known to the Spaniards, that under our 
existing system the Mississippi shall be taken from them. Seven 
States wished to relinquish this river to them. The six Southern 
States opposed it. Seven States not being sufficient to convey 
it away, it remains ours. If I am wrong, there is a member on 
this floor who can contradict the facts ; I will readily retract. 
This new government, I conceive, will enable those States who 
have already discovered their inclination that way to give 
away this river. Will the honorable gentleman (Randolph) 
advise us to relinquish this inestimable navigation, and to place 
formidable enemies on our backs ? I hope this will be explained. 
I was not in Congress at the time these transactions took place. 
I may not have stated every fact. Let us hear how the great 
and important right of navigating that river has been attended 
to, and whether I am mistaken that Federal measures will lose it 
to us forever. If a bare majority of Congress can make laws, the 
situation of our Western citizens is dreadful." 

Of the connection of the Mississippi with the interests of Vir- 
ginia we will treat at length when the memorable discussion of 
the subject took place a few days later ; at present it is only 
necessary to say that Kentucky, whose western boundary 
impinged on that river, was then a part of Virginia, and was rep- 
resented in the Convention by twelve members, whose votes 
might decide the fate of the new plan. 

Henry then proceeded to reply to the arguments of Randolph, 
Madison, and Corbin in detail, with a force of logic and with a 
fullness of illustration which he had not before evinced in his 
speeches. He reviewed the dangers likely to flow from the non- 
payment of the debt due to France, bestowing an elegant com- 
pliment on Mr. Jefferson, whom he called " an illustrious citizen, 
who, at a great distance from us, remembers and studies our 
happiness ; who was well acquainted with the policy of European 
nations, and who, amid the splendor and dissipation of courts, 
yet thinks of bills of rights and those despised little things 
called maxims ;" and speaking of Louis the Sixteenth as " that 
great friend of America. ' ' He reviewed our relations with Spain 
and with Holland, and showed with great plausibility that we had 
nothing to fear from them. He then examined the arguments of 
Randolph, drawn from our position in respect of the neighboring 
States, and gave his reasons for concluding that neither Mary- 



VIRGINIA CONVENTION OF 1788. 153 

land nor Pennsylvania would give us serious trouble. He 
reviewed our Indian relations, and showed that there was no 
cause for alarm in that quarter, closing this branch of this sub- 
ject in these words : ' ' You will sip sorrow, to use a vulgar phrase, 
if you want any other security than the laws of Virginia." 

He adduced the authority of several eminent citizens to prove 
the consolidating tenderness of the new plan, and asked " if any 
one who heard him could restrain his indignation at a system 
which takes from the State legislatures the care and the preserva- 
tion of the interests of the people. One hundred and eighty 
representatives, the choice of the people of Virginia, not to be 
trusted with their interests ! They are a mobbish, suspected herd. 
So degrading an indignity, so flagrant an outrage on the States, 
so vile a suspicion, is humiliating to my mind, and to the minds 
of many others/' He ridiculed the notion that a change of gov- 
ernment could pay the debts of the people. " At present," he 
said, "you buy too much, and make too little to pay. The evils 
that attend us lie in extravagance and want of industry, and can 
only be removed by assiduity and economy. Perhaps we shall 
be told by gentlemen that these things will happen, because the 
administration is to be taken -from us and placed in the hands of 
the luminous few, who will pay different attention, and be more 
studiously careful than we can be supposed to be." 

With respect to the economical operation of the new govern- 
ment, he urged that the national expenses would be increased by 
it tenfold. " I might tell you," he said, " of a standing army, of 
a great powerful navy, of a long and rapacious train of officers 
and dependents, independent of the president, senators, and 
representatives, whose compensations are without limitation. 
How are our debts to be discharged when the expenses of gov- 
ernment are so greatly augmented? The defects of this system 
are so numerous and palpable, and so many States object to it, 
no union can be expected unless it be amended. Let us take a 
review of the facts." He then examined the condition of the 
different States at length, ending his remarks on this topic with 
these words : " Without a radical alteration of this plan, sir, the 
States will never be embraced in one federal pale. If you attempt 
to force it down men's throats and call it union dreadful conse- 
quences must follow." 

He now urged upon Randolph the inconsistency of his course 



15 i VIRGINIA CONVENTION OF 1788. 

in relation to the adoption of the Constitution. "The gentle- 
man has said a great deal of disunion and the dangers that are 
to arise from it. When we are on the subject of union and dan- 
gers, let me ask him how will his present doctrine hold with what 
has happened ? Is it consistent with that noble and disinter- 
ested conduct which he displayed on a former occasion ? Did he 
not tell us that he withheld his signature? Where then were the 
dangers which now appear to him so formidable? He saw all 
America eagerly confiding that the result of their deliberations 
would remove our distresses. He saw all America acting under 
the impulses of hope, expectation, and anxiety arising from our 
situation, and our partiality for the members of that Convention; 
yet, his enlightened mind, knowing that system to be defective, 
magnanimously and nobly refused to approve it. He was not 
led by the illumined, the illustrious few. He was actuated by 
the dictates of his own judgment, and a better judgment than I 
can form. He did not stand out of the way of information. He 
must have been possessed of every intelligence. What altera- 
tions have a few months brought about ? The internal differ- 
ence between right and wrong does not fluctuate. It is immu- 
table. I ask this question as a public man, and out of no par- 
ticular view. I wish, as such, to consult every source of infor- 
mation, to form my judgment on so awful a question. I had the 
highest respect for the honorable gentleman's abilities. I con- 
sidered his opinion as a great authority. He taught me, sir, in 
despite of the approbation of that great Federal Convention, to 
doubt of the propriety of that system. When I found my hon- 
orable friend in the number of those who doubted, I began to 
doubt also. I coincided with him in opinion. I shall be a 
siaunch and faithful disciple of his. I applaud that magnanimity 
which led him to withhold his signature. If he thinks now dif- 
ferently, he is as free as I am. Such is my situation, that, as a 
poor individual, I look for information everywhere." He con- 
tinued : " This Government is so new it wants a name. I wish 
its other novelties were as harmless as this. The gentleman 
told us that we had an American dictator in the year 1781 we 
never had an American President. In making a dictator, we 
followed the example of the most glorious, magnanimous, and 
skillful nations. In great dangers this power has been given. 
Rome had furnished us with an illustrious example. America 



VIRGINIA CONVENTION OF 1788. 155 

found a person worthy of that trust ; she looked to Virginia for 
him. We gave a dictatorial power to hands that used it glori- 
ously ; and which were rendered more glorious by surrendering 
it up. Where is there a breed of such dictators ? Shall we find 
a set of American presidents of such a breed ? Will the Ameri- 
can President come and lay prostrate at the feet of Congress his 
laurels ? I fear there are few men who can be trusted on that 
head. The glorious republic of Holland has erected monuments 
of her warlike intrepidity and valor, yet she is now totally ruined 
by a Stadt-holder a Dutch, president." He then drew some 
seemingly apposite illustrations from the policy of the Dutch in 
favor of his views. He touched one of the arguments of Corbin, 
in passing which that gentleman drew from the domestic legis- 
lation of Virginia. " Why," he said, "did it please the gentle- 
man to bestow such epithets on our country ? Have the worms 
taken possession of the wood, that our strong vessel our politi- 
cal vessel has sprung a leak ? He may know better than I, but 
I consider such epithets to be most illiberal and unwarrantable 
aspersions on our laws. The system of laws under which we 
live has been tried and found to suit our genius. I trust we shall 
not change this happy system." Then, turning to Corbin, he 
said : " Till I see that gentleman following after and pursuing 
other objects than those which prevent the great objects of 
human legislation, pardon me if I withhold my assent." 

When he had discoursed on the subject of forming new codes 
of law, of the nature of the various checks which were regarded 
as sufficient to prevent federal usurpation, of the abuses of im- 
plied powers, of the complicated union of State and Federal 
collectors, he argued with great earnestness in opposition to that 
part of the Constitution which gives to Congress jurisdiction 
over forts and arsenals in the State. " Congress," he said, "you 
sell to Congress such places as are proper for these, within your 
State, you will not be consistent after adoption. It results, there- 
fore, clearly that you are to give into their hands all such places 
as are fit for strongholds. When you have those fortifications 
and garrisons within your State, your State legislature will 
have no power over them, though they see the most dangerous 
insults offered to the people daily. They are also to have mag- 
azines in each State. These depositories for arms, though within 
the States, will be free from the control of its legislature. Are 



156 VIRGINIA CONVENTION OF 1788. 

we at last brought to such a humiliating and debasing degrada- 
tion, that we cannot be trusted with arms for our own defence ? 
If our defence be the real object of having those arms, in whose 
hands can they be trusted with more propriety or equal safety to 
us, as in our own hands ? If our legislature be unworthy of 
legislating for every foot of land in this State, they are unworthy 
of saying another word." 

He showed that by the power of taxation and by the right to 
raise armies, Congress would possess the power of the purse and 
the power of the sword, and sought to prove that, without a 
miracle, no nation could retain its liberty, after the loss of the 
purse and the sword. He contended that requisitions were the 
proper means of collecting money from the States, and appealed 
to Randolph, as he said "he was a childvi the Revolution," 141 
whether he did not recollect with gratitude the glorious effects 
of requisitions throughout the war. 

He thus animadverted upon the definition which Madison had 
given of the new plan : " We are told," he said, " that this new 
government, collectively taken, is without an example; that it is 
national in this part and federal in that part, &c. We may be 
amused, if we please, by a treatise of political anatomy. In the 
brain it is national ; the stamina are federal some limbs are fed- 
eral, some national. The senators are to be voted for by the 
State legislatures ; so far it is federal. Individuals choose the 
members of the first branch ; here it is national. It is federal in 
conferring general powers ; but national in retaining them. It is 
not to be supported by the States the pockets of individuals 
are to be searched for its maintenance. What signifies it to me 
that you have the most curious anatomical description of it on its 
creation ? To all the common purposes of legislation it is a great 
CONSOLIDATION of government. You are not to have the right 
to legislate in any but trivial cases. You are not to touch private 
contracts. You are not to have the rights of having arms on 
your own defences. You cannot be trusted with dealing out 
justice between man and man. What shall the States have to 



141 Randolph opened his speech to which Henry was replying with 
the words: " I am a child of the Revolution." The reader must keep 
in mind Henry's inimitable powers of acting, and his ability by a mere 
accent on a word or a look to raise the laughter of both friends and 
foes. 



VIRGINIA CONVENTION OF 1788. 157 

do ? Take care of the poor, repair and make highways, erect 
bridges, and so on, and so on. Abolish the State legislatures at 
once. What purposes should they be continued for? Our Leg- 
islature will indeed be a ludicrous spectacle. One hundred and 
eighty men marching in solemn farcical procession, exhibiting a 
mournful proof of the lost liberty of their country, without the 
power of restoring it. But, sir, we have the consolation that it 
is a mixed government ; that is, it may work sorely on your 
neck ; but you will have some comfort by saying that it was a 
federal government on its origin !" 142 

"I am constrained," he added, "to make a few remarks on 
the absurdity of adopting this system, and relying on the chance 
of getting it amended afterwards. When it is confessed to be 
replete with defects, is it not offering to insult your understand- 
ings to attempt to reason you out of the propriety of rejecting 
it till it be amended ? Does it not insult your judgments to tell 
you adopt first and then amend ? Is your rage for novelty so 
great that you are first to sign and seal and then to retract ? Is 
it possible to conceive a greater solecism ? I am at a loss what 
to say. You agree to bind yourselves hand and foot for the sake 
of what? Of being unbound, You go into a dungeon for what? 
To get out. Is there no danger when you go in that the bolts of 
federal authority shall shut you in ? Human nature will never 
part from power." After illustrating his position by facts drawn 
from the history of Europe, and paying a compliment to the 
younger Pitt on account of his opinions favorable to reform in 
the British Constitution, he closed his argument on this point 

U2 I have heard that this passage, of which we have but a condensed 
report, and which blended irony and pathos in a remarkable degree, 
was delivered with transcendant effect. On one of the occasions which 
the reporter passes over with some such remark as, " Here Mr. Henry 
declaimed with great pathos on the loss of our liberties," I was told by 
a person on the floor of the Convention at the time, that when Henry 
had painted in the most vivid colors the dangers likely to result to. the 
black population from the unlimited power of the general government, 
wielded by men who had little or no interest in that species of prop- 
erty, and had filled his audience with fear, he suddenly broke out with 
the homely exclamation : " They'll free your niggers !" The audience 
passed instantly from fear to wayward laughter ; and my informant said 
that it was most ludicrous to see men who a moment before were half 
frightened to death, with a broad grin on their faces. 



158 VIRGINIA CONVENTION OF 1788. 

with the inquiry : " I ask you again, where is the example that a 
government was amended by those who instituted it? Where is 
the instance of the errors of a government rectified by those who 
adopted them ?" 

He closed the most brilliant argument which he had then ever 
made with this affecting and patriotic peroration : " Perhaps I 
shall be told that I have gone through the regions of fancy 
that I deal in noisy exclamations and mighty professions of pa- 
triotism. Gentlemen may retain their opinions; but I look on 
that paper as the most fatal plan that could possibly be conceived 
to enslave a free people. If such be your rage for novelty, take 
it and welcome, but you never shall have my consent. My sen- 
timents may appear extravagant ; but I can tell you that a num- 
ber of my fellow-citizens have kindred sentiments. And I am 
anxious, that if my country should come into the hands of ty- 
ranny, to exculpate myself from being in any degree the cause ; 
and to exert my faculties to the utmost to extricate her. Whether 
I am gratified or not in my beloved form of government, I con- 
sider that the more she is plunged into distress the more it is my 
duty to relieve her. Whatever may be the result, I shall wait 
with patience till the day may come when an opportunity shall 
offer to exert myself in her cause." 

Before the pathetic tones of Henry's voice had died away, and 
when every eye was fixed on Randolph, who could not conceal 
his emotions under Henry's frequent and pointed assaults, Henry 
Lee obtained possession of the floor. In conducting a campaign, 
whether in the field or in a deliberative assembly, no member of 
the body had a keener sense of the policy to be pursued in a 
great conjuncture than this daring young man ; and it was ob- 
served by those who knew him well that, if his attention had 
been as early and as ardently devoted to civil as to military em- 
ployments, he would not have fallen behind the most distin- 
guished of his contemporaries. He now felt that no majority, 
however large, could long withstand the glowing appeals of 
Henry, and that it was of vital importance to the cause which he 
embraced to break that spell which for the last three hours had 
been cast by his eloquence over the house. He also knew that 
if argument could accomplish such a result, the admirable 
speeches of Pendleton, of Madison, and of Nicholas, would 
have left nothing to be desired. He accordingly, as on a former 



VIRGINIA CONVENTION OF 1788. 159 

occasion, adopted a different mode of tactics. He said that, 
when he was up before, he had called upon that gentlemen 
(Henry) to give his reasons for his opposition in a systematic 
manner ; and he had done so from respect to the character of 
that gentleman. He had also taken the liberty to tell him that 
the subject belonged to the judgments of the members of the 
committee, and not to their passions. He felt obliged to him for 
his politeness in the committee; "but," he added, "as the hon- 
orable gentleman seems to have discarded in a great measure 
solid argument and strong reasoning, and has established a new 
system of throwing those bolts which he has so peculiar a dex- 
terity in discharging, I trust I shall not incur the displeasure of 
the committe by answering the honorable gentleman in the de- 
sultory manner in which he has treated the subject. I shall 
touch a few of those luminous points he has entertained us with. 
He told us the other day that the enemies of the Constitution 
were firm supporters of liberty, and implied that its friends were 
not republicans. I conceive that I may say with truth that the 
friends of that paper are true republicans, and by no means less 
attached to liberty than their opponents. Much is said by gen- 
tlemen out of doors. They ought to urge all their objections 
here. In all the rage of the gentleman for democracy, how often 
does he express his admiration of the king and parliament over 
the Atlantic ? But we republicans are contemned and despised. 
Here, sir, I conceive that implication might operate against 
himself. He tells us that he is a staunch republican, and adores 
liberty. I believe him, and when I do I wonder that he should 
say that a kingly government is superior to that system which 
we admire. He tells you that it cherishes a standing army, and 
that militia alone ought to be depended upon for the defence of 
every free country. There is not. a gentlemen in this house- 
there is no man without these walls not even the gentleman 
himself, who admires the militia more than I do. Without 
vanity I may say that I have had different experience of their 
service from that of the honorable gentleman. It was my for- 
tune to be a soldier of my country. In the discharge of my 
duty I knew the worth of militia. I have seen them perform 
feats that would do do honor to the first veterans, and submitting 
to what would daunt German soldiers. I saw what the honora- 
ble gentleman did not see our men fighting with the troops of 



160 VIRGINIA CONVENTION OF 1788. 

that king which he so much admires. I have seen proofs of the 
wisdom of that paper on your table. I have seen incontroverti- 
ble evidence that militia cannot always be relied on. I could 
enumerate many instances, but one will suffice. Let the gentle- 
man recollect the action of Guilford. The American troops 
behaved there with gallant intrepidity. What did the militia do? 
The greatest numbers of them fled. The abandonment of the 
regulars occasioned the loss of the field. Had the line been 
supported that day, Cornwallis, instead of surrendering at York, 
would have laid down his arms at Guilford." 143 

In replying to the argument of Henry, that the States would 
be left without arms, he said he could not understand the impli- 
cation of the gentleman that, because Congress may arm the 
militia, the States cannot do it. The States are, by no part of 
the plan before you, precluded from arming and disciplining the 
militia should Congress neglect it. He rebuked Henry for his 
seemingly exclusive attachment to Virginia, and uttered the fol- 
lowing manly sentiment: "In the course of Saturday, and in 
previous harangues, from the terms in which some of the North- 
ern States were spoken of, one would have thought that the love 
of an American was in some degree criminal, as being incom- 
patible with a proper degree of affection for a Virginian. The 
people of America, sir, are one people. I love the people of the 
North, not because they have adopted the Constitution, but be- 
cause I fought with them as my countrymen, and because I con- 
sider them as such. Does it follow from hence that I have 
forgotten my attachment to my native State? In all local matters 
I shall be a Virginian. In those of a general nature I shall never 
forget that I am an American." In referring to the proposed 
surrender of the navigation of the Mississippi, he said that he 



143 The reader familiar with our early history will discover several 
covert allusions to Henry's military character in the above-cited pas- 
sage The military officers of the United States were sometimes in- 
clined to assume rather too much authority in the States at particular 
times. The correspondence between Colonel Edward Carrington and 
Henry (when Governor) shows this very plainly. The ultimate result 
was the triumph of the civilians in putting down the Cincinnati Society, 
and the triumph of the military in effecting a ratification of the Federal 
Constitution, especially by Virginia, where it was opposed by our ablest 
and wisest statesmen, and probably by three-fourths of the people. 



VIRGINIA CONVENTION OF 1788. 161 

" was in Congress at the time, and that there was not a member of 
the body who had an idea of such a surrender. They thought 
of the best mode of securing that river, some thinking one way, 
some another. There was no desire to conceal any of the trans- 
actions on that important question. Let the gentleman write to 
the President of Congress for information. He will be gratified 
fully " He then reviewed the opinions of the States on the sub- 
ject of ratification. " The gentleman says Rhode Island and 
New Hampshire have refused to ratify. Is that &fact? It is not 
a fact. He says that New York and North Carolina will reject 
it. Here is another of his facts. As he dislikes the veil of 
secrecy^ I beg that he would tell us the high authority from 
which he gets this fact. Have the executives of those States in- 
formed him ? I believe not. I hold his unsupported authority 
in contempt" He thus closed his survey of the arguments of 
Henry: " I contend for myself and the friends of the Constitution 
that we are as great friends to liberty as he or any other person, 
and that we will not be behind him in exertions in its defence 
when it is invaded. For my part I trust, young as I am, I will 
be trusted in the support of freedom as far as the honorable 
gentleman. I feel that indignation and contempt with respect to 
his previous amendments which he expresses against posterior 
amendments. I can see no danger from a previous ratification. 
I see infinite dangers from previous amendments. I shall give 
my suffrage for the former, because I think the happiness of my 
country depends upon it. To maintain and secure that happiness, 
the first object of my wishes, I shall br ( ave all storms and politi- 
cal dangers." 1 ** 

u * The bold and unsparing severity of Lee's speech was silently rel- 
ished by his friends, but its tone towards Henry cannot be justified. 
Now that Henry and Lee are dead and their whole lives are before us, 
it is worth knowing that Lee, in a year or two after the adoption of the 
Constitution, was elected Governor of Virginia, and that when a va- 
cancy occurred in the Senate of the United States which he was re- 
quested to fill, his first act was to make out a commission for Henry, 
which I have seen, and to despatch it by express to him in Prince Ed- 
ward. Their personal relations subsequently were most intimate and 
cordial. It is said that Lee, in aiding Henry to exchange his Dismal 
Swamp lands for some valuable Saura Town lands, greatly improved 
the fortunes of his friend. It is also worth noting that Henry made no 
reply to Lee. 
n 



162 VIRGINIA^ CONVENTION OF Ij88. 

We now come to the only severe personal quarrel to which 
the discussions of the Convention gave birth, which made a 
strong sensation at the time, and the details of which will be 
eagerly read by posterity. As soon as Lee took his seat, Ed- 
mund Randolph with evident emotion rose to reply to Henry. 
He began by saying that having consumed so much of the time 
of the committee, he did not intend to trouble it so soon ; " but," 
he said, " I find myself attacked in the most illiberal manner by 
the honorable gentleman (Henry). I disdain his aspersions and 
his insinuations. His asperity is warranted by no principle of 
parliamentary decency, nor compatible with the least shadow of 
friendship. And if our friendship must fall, let it fall like Luci- 
fer, never to rise again. Let him remember that it is not to 
answer him, but to satisfy this respectable audience, that I now 
get up. He has accused me of inconsistency in this very respect- 
able assembly. Sir, if I do not stand on the bottom of integrity, 
and pure love for Virginia, as much as those who can be most 
clamorous, I wish to resign my existence. Consistency consists 
in actions, and not in empty specious words. Ever since the 
first entrance into that Federal business, I have been invariably 
governed by an invincible attachment to the happiness of the 
people of America. Federal measures had been before that 
time repudiated. The augmentation of Congressional powers 
was dreaded. The imbecility of the confederation was proved 
and acknowledged. When I had the honor of being deputed to 
the Federal Convention to revise the existing system, I was 
impressed with the necessity of a more energetic government, 
and thoroughly persuaded that the salvation of the people of 
America depended on an intimate and firm union. The honor- 
able gentlemen there 145 can say that when I went thither, no man 
was a stronger friend to such an union than myself. I informed 
you why I refused to sign. I understand not him who wishes 
to give full scope to licentiousness and dissipation, and who 
would advise me to reject the proposed plan, and plunge us into 
anarchy." 

(Here His Excellency read the conclusion of his public letter, 146 



145 Meaning Mason, Wythe, Madison and John Blair, his colleagues 
in the general Federal Convention, and also members of the present 
Convention. 

146 Addressed to the Speaker of the House of Delegates. 



VIRGINIA CONVENTION OF 1788. 1C3 

wherein he says that notwithstanding his objections to the Con- 
stitution, he would adopt it rather than lose the Union), and 
proceeded to prove the consistency of his present opinion with 
his former conduct, when Henry rose and declared that he had 
no personal intention of offending anyone ; that he did his 
duty, but that he did not mean to wound the feelings of any 
gentleman ; that he was sorry if he offended the honorable gen- 
tleman without intending it ; and that every gentleman had a 
right to maintain his opinion. Randolph then said that he was 
relieved by what the honorable gentleman had said ; that were 
it not for the concession of that gentleman, he would have made 1 
some men's hair stand on end by the disclosure of certain facts. 
Henry then requested that if he had anything to say against him 
to disclose it. Randolph continued, that as there were some 
gentlemen there who might not be satisfied with the recantation 
of the honorable gentleman, without being informed, he should 
give them some information on the subject ; that his ambition 
had ever been to promote the Union ; that he was no more 
attached to it now than he ever had been ; and that he could in 
some degree prove it by the paper which he held in his hand, 
which was a letter which he had written to his constituents. 
After some further explanation of his course, he threw down the 
letter on the clerk's table, and declared that it might lie there 
for the inspection of the curious and the malicious. 

With those who look impartially at this passage of arms be- 
tween these two eminent and accomplished statesmen, there 
cannot well be at this day but one opinion, and that opinion 
wholly adverse to the conduct of Randolph. In no respect had 
Henry overleaped the strictest rules of parliamentary decorum. 
He had exhibited what he regarded as inconsistency in the course 
of a public man, who had been charged by the Commonwealth 
with an important trust, and in the arguments which he had 
used on the subject of the adoption of the Constitution. There 
was not the slightest personal reflection or allusion in anything 
that he had said. And when Randolph recited his charge 
against Henry, it was mainly that he had accused him of incon- 
sistency before that very respectable assembly. Now there is 
not in the whole armory of forensic warfare a more legitimate 
weapon than that which is used to demonstrate the inconsistency 
of the arguments of an opponent with each other, or with other 



164 VIRGINIA CONVENTION OF 1788. 

arguments urged by him in different stages of the same case. 
This process is sometimes very unpleasant to the person whose 
character is at stake, and not a little annoying ; but the only 
honorable mode of defence is a proper exposition of the alleged 
inconsistency, and a similar retaliation on the offending party. 
Indignation, hard names, and downright insult have here nc 
more place than in any other mode of logical refutation. Henry 
had also used the word " herd" in a different sense from that in 
which Randolph had used it, but upon an explanation of the 
meaning passed to another topic. He had also quoted the 
remark of Randolph that " he was a child of the Revolution," 
and had used it argumentatively ; but such a quotation was 
neither inappropriate nor indecorous. Indeed, the only shadow 
of unfairness, if in truth it be as palpable as a shadow, was the 
use of the word " herd" on a single occasion after the explana- 
tion of Randolph, and when Henry may be supposed to have 
used it in its ordinary meaning ; but if the use of this word 
afforded ground for animadversion, it was the least possible, and 
when regarded as a ground whereon to fasten a mortal quarrel 
upon an opponent, it was utterly contemptible. It is honorable 
to the temper of Henry that he did not interrupt Randolph in 
the harsh, unjust, and ungenerous remarks with which he began 
his speech ; and above all, it is honorable to his character that, 
in despite of such grievous provocation, he subsequently rose, 
disavowed in the strongest terms any personal allusion, and 
expressed his sorrow that he had unintentionally given offence to 
Randolph. He had thus made all the reparation which one gen- 
tleman can well receive from another. His course was in the 
highest degree magnanimous, and ought to have been in the 
highest degree satisfactory. Randolph, on the other hand, 
accepted the explanation of Henry, but in one and the same 
breath insulted Henry, not by showing any discrepancy in his 
arguments, not by attacking the inconsistencies of his public 
career, not by referring to any topic or incident that had occurred 
in any deliberative assembly of which Henry had been a member, 
but by uttering a threat to the effect that if the gentleman had 
not recanted Henry having recanted nothing, having merely 
explained his original meaning he would have made revelations 
which would not have merely affected him as a member of a 
public body, but would have blasted his reputation as a gentle- 



VIRGINIA CONVENTION OF 1788. 165 

man and as a man. If anything could have enhanced this most 
wanton, this most unparliamentary, and wholly unjustifiable 
threat, it was the withholding from the instant demand of Henry 
those charges which would involve his character in infamy, and 
which he professed to be able to make, and which he would have 
made but for the explanation. Nor did Randolph cease to fling 
insult upon Henry with what he had thus far done. He gave a 
new, uncalled for, and most aggravated insult to Henry when, 
throwing down his own public letter on the table of the clerk, he 
declared that it should lie there for the inspection of the curious 
and the malicious. This taunting and somewhat theatrical 
remark could apply only to Henry, who now saw that the dis- 
pute had passed beyond the walls of the House. He saw that 
he was involved in an unpleasant predicament ; but he felt that 
he had been placed there by no fault of his own. His entire life 
had been free from personal quarrels. He was declining in the 
vale of life. He had passed his fifty-second year, had a young 
and dependent family, and was poor. Randolph was in the vigor 
of manhood, not having reached his thirty-seventh year, and had 
also a young family; and, if not poor, his life, even in a pecu- 
niary view, was of the last importance to his family. A hostile 
meeting between two such men, whose lives were wrapped up in 
so many endearing domestic ties, whose distinguished talents, 
as they were the common property, so they were the pride of 
their country, and who had lived up to that time in the relations 
of friendship, would have appalled the public mind ; and accord- 
ingly when on Tuesday morning it was known that Col. William 
Cabell had the evening before, as the friend of Henry, waited 
on Randolph ; that the unpleasant affair had been settled with- 
out a resort to the field, and that a reconciliation between the 
parties had been effected, 347 both the great divisions in the House 
were sensibly relieved. 



147 The most direct personal charge of inconsistency that I have ever 
seen in a public body was that made in the Convention of 1829-30 by 
Colonel John B. George, of Tazewell, against General William F. Gor- 
don, of Albemarle. Colonel George rose directly from his seat to 
make the charge, made it in as few and as forcible words as he could 
utter, and instantly sate down. General Gordon, who saw at once 
what the occasion required, defended his course with eminent grace 
and skill, and gained eclat by the affair. When John Randolph, in the 



166 VIRGINIA ^CONVENTION OF 1788. 

When the personal altercation was past, Randolph, as if re- 
lieved from a weight that hung heavily upon him, spoke with 
great freedom in defence of the Constitution, analyzed in detail 
the objections of Henry, and made one of the longest, most 
learned, and, at the same time, one of the most brilliant speeches 
of his life. 1 * 8 

He was followed by a member in the opposition, who had not 
yet engaged in the discussion, who was as yet a very young man, 
almost wholly unknown to many of the leading members of the 
House ; who had none of those outward advantages which stand 
in the stead of a letter of introduction ; but whose name, indis- 
solubly connected with the great events of the first third of a 
century of that government, the adoption of which he now rose 
to resist, is destined to survive the names of some whose fair 
reputations were then in full leaf, and to become a household 
word to succeeding generations. It was not in the roll of a re- 
mote ancestry, or in the splendor of patrimonial wealth, or even 
in the fostering care of those who enjoyed such advantages, 
that the youthful speaker looked for his titles to success in the 
world, and to the approbation ot his country. So far from hav- 

same body, marshalled what he deemed the inconsistencies of Chap- 
man Johnson in thick array against him, that great and good man took 
the first opportunity of replying ; but no friend of Johnson dreamed 
that the affair ought to have been transferred elsewhere. 

148 In a note on the preceding page I alluded to the subsequent con- 
nections of Lee and Henry. Those between Randolph and Henry 
were not so intimate. Randolph became the first Attorney-General 
under the new plan, and succeeded Mr. Jefferson as Secretary of State 
in the Cabinet of Washington. Henry went into opposition, as, in- 
deed, in a certain sense, was Randolph himself. Both were eager to 
obtain amendments, and were equally disappointed in their efforts. 
Randolph soon withdrew from the State department under the most 
painful circumstances, and went into full opposition. Henry, who had 
warmly opposed the British Treaty, became alarmed at what he deemed 
the rash measures of his old opponents in the Convention, who had 
assumed the name of republicans, and rallied in support of the admin- 
istration of Washington. And it happened singularly enough that 
when Randolph withdrew from the Cabinet, Henry was invited to take 
his seat. These topics will be discussed more at length when I come 
to treat of the general course of Henry and Randolph, as well as the 
nature of the charges which Randolph threatened to throw at the head 
of Henry. 



VIRGINIA CONVENTION OF 1788. 167 

ing been born in that elevated position in which he now stood 
side by side with the most illustrious men to whom the State had 
given birth he was the son of a Scotchman, or of Scotch descent, 
a carpenter, wno had settled in Westmoreland, and who was en- 
abled by his industry to gratify an honorable passion of the 
Scotch by affording to his son all the advantages of education 
within his reach. And in this praiseworthy purpose he was 
aided to the fullest extent by his son. 

From the first, whether in the old-field school house, in the 
camp, in ihe college, which in his case instead of preceding suc- 
ceeded the camp, or in the council, or when, as it sometimes, 
though rarely, happened, he was in neither the one nor the 
other, James Monroe never lost an advantage. He had attended 
a country school with John Marshall, in company with whom 
he was to travel, in war and in peace, the trail of a long and 
honored career, and had spent a term in William and Mary ; 
but his elementary stock of knowledge was exceedingly small, 
and his real education was on the stage of busy life. In his 
eighteenth year he entered the army as a cadet, became in due 
time a lieutenant and captain, and alternately an aid to a general 
officer. From the beginning of the war to nearly its close he 
was in active service, and he numbered among the battles in- 
which he was engaged those of Harlem Heights and White 
Plains, of Princeton and Trenton, in which last he was wounded 
in the shoulder, of Brandywine, Germantown arid Monmouth. 
As a military commissioner of Virginia he visited the Southern 
army under De Kalb, and in 1782 he was returned from King 
George to the House of Delegates. At the age of twenty-four 
he was deputed to Congress, having been the youngest member 
which the Assembly had ever elected to that body, in which, as 
in the House of Delegates, and in many other high appointments, 
in the course of a long life, he had been preceded by Madison. 
He plunged at once into affairs, and displayed that firm purpose, 
that moral hardihood, which, attributed by Sydney Smith to 
Lord John Russell, would lead the English statesman, though 
ignorant of seamanship, to take command of the Channel fleet, 
which is one of the greatest qualities of a public man, and which 
even impelled Monroe to meet rather than avoid difficult topics, 
and to push them to a practical conclusion ; and which, we may 
add, is more nearly allied to wisdom than to folly, inasmuch as 



168 VIRGINIA CONVENTION OF 1788. 

^ 

in the affairs of a nation the prompt settlement of a disputed 
question, however dangerous to the propects of the individual, 
is not unfrequently of far greater importance to the general wel- 
fare than the particular mode by which that settlement was 
effected. He was now thirty ; he was tall and erect in person ; 
his face with its high cheek bones betokening his Caledonian 
descent, and not uncomely ; his manners kind and affectionate, 
which had not yet lost their martial stiffness, and which, even in 
the midst of courts and cabinets, at home and abroad, never 
attained the easy freedom of a well-bred man. His demeanor 
was marked by a gravity, another trait of his Scotch extraction, 
which is not uncommon with those on whom the heavy responsi- 
bilities of life are early cast, and which concealed from the com- 
mon observer a warm and generous heart. These qualities were 
not more perceptible to the public than his intense application 
to business, the entire concentration of all his faculties to the 
case in hand, his sincerity of purpose, his truthfulness, his utter 
want of those accomplishments which amuse, instruct and adorn 
the social sphere, and perhaps his incapacity of appreciating 
them in another, his slowness in comprehending a subject, 
equalled only by the soundness of the conclusions which he ulti- 
mately reached, 149 his faculties invigorated by the exercise to 
which they had been subjected, but neither very large nor very 
bright, nor highly cultivated by art, nor much enriched by learn- 
ing drawn from books, yet vigorous and eminently practical, 
were recognized by those who knew him well. Yet, in this 
unfriended, not half- educated, unpolished youth the elements of 
political success were mingled in an amazing degree. Inferior 
to Randolph in genius, in eloquence, in literature, and in that 
social position which made the wealth, the talents, and the influ- 
ence of a vast family connection ancillary to his views ; to Madi- 
son in the early culture of the faculties under the most favorable 
auspices, in acquirements, and in universality of intellectual 
power ; to Henry Lee in the extent and caste of domestic rela- 
tionship, in early and thorough instruction in military talents as 
well as in martial fame, and in a ready and striking elocution ; 
to Marshall in unbounded vigor of mind as well as in the knowl- 



149 Patrick Henry always thought well of Monroe, and used to say of 
him " that he was slow, but give him time and he was sure." 



VIRGINIA CONVENTION OF 1788. 169 

edge of the law to which they had served an apprenticeship to- 
gether, as they had done in the Northern army ; to Innes, 
another colleague in the Northern army, in classical literature, in 
general learning, and, above all, in a splendid eloquence ; to 
Grayson, another compatriot of the Northern army, in fasci- 
nating manners, in humor, in wit, in a perfect mastery of the 
science of political economy, in an almost unrivalled play of the 
intellectual powers, and in that exquisite taste in letters, which 
imparts even to consummate statesmanship an attractive and ever 
living grace ; to George Nicholas in those subtle faculties and in 
that profound acquaintance with the law which enabled him to 
pass instantly from an opinion on a land warrant shingled three 
deep to the discussion of the most intricate questions in govern- 
ment and in the laws of nations ; to Corbin in habits of public 
speaking, in political research, and in elegant learning ; to Ralph 
Wormeley in a critical knowledge of the entire compass of Eng- 
lish literature as in that honorable lineage which as early as King 
Charles' time held the keys of the public treasure ; 15 inferior to 
these, and not to these only of that galaxy of genius and worth 
which then appeared on the Virginia horizon, and which our 
later statesmen, themselves now passed away, were wont to point 
at and to dwell upon with conscious pride, this remarkable young 
man succeeded in winning and wearing at his pleasure every 
honor which public office at home or abroad could bestow, from 



150 The Wormeley family can be traced to 1312, when they were seated 
in Yorkshire, England. The first in Virginia was Captain Christopher 
Wormeley, Governor of Tortuga in 1632-5; was granted 1.420 acres of 
land in Charles River (York) county January 27, 1638; member of the 
Council ; married, and had issue : Captain Ralph Wormeley of York 
county, member of the Council in 1640 ; patented land, and settled at 
" Rosegill," Middlesex county ; died before 1669, leaving issue : Ralph. 
His widow Agatha married secondly Sir Henry Chicheley, Governor 
of Virginia. Ralph Wormeley, second of the name, died 1700, leaving 
issue: John Wormeley, of "Rosegill," and Judith, married Colonel 
Mann Page, of " Rose well." Of the issue of John was Ralph Worme- 
ley, of " Rosegill," married, 1736, Sarah Berkeley of " Barn Elms "; Bur- 
gess for Middlesex county 1748-1758; member of the Council 1756-1761. 
Of their issue was Ralph Wormeley, Jr., of the text, a scholar who pos- 
sessed one of the choicest libraries in Virginia ; married Eleanor Tay- 
loe, sister of Colonel John Tayloe, of "Mount Airy" ; died January 
19, 1806, in the 62nd year of his age. ED. 



170 VIRGINIA^CONVENTION OF 1788. 

that of Governor of the Commonwealth and Senator of the 
United States, from repeated missions to the most distinguished 
courts of Europe, from a seat in the Department of War and in 
the Department of State, to that most exalted of all the honors 
to which an American citizen can aspire, the Presidency itself; 
while of his early compatriots, as well as those who had already 
reached a high position as those who, like himself, were pluming 
their wings for the new scene soon to open upon them, some 
dropped almost immediately out of sight, or, enamoured of rural 
life, clung to the domestic hearth and declined public trusts, or 
devoted their time to State affairs, or were lost in the haze of a 
local celebrity, or soared for a time only in the fresh azure of a 
Federal sky, upborne on untiring wings, or voluntarily to de- 
scend after a season to the perch from which they had risen, or, 
stricken by the hostile arrow, to be precipitated with a disas- 
trous fall, and others who were content to accept from his hands 
those offices which they not only did not aspire to bestow, 
but were thankful to receive ; three only of that entire number 
running continuously with him the long race of fifty years with 
equal though various distinction ; and of those three one only 
attaining to the first office of the nation. 151 

The secret of this unparalleled success is difficult to find only 
because it lies on the surface. Industry, integrity, personal in- 
trepidity, whether it was to be exhibited amid the clashing of 
swords or the more fearful clashing of tongues, a satisfaction with 
smalrthings, which kept him within the range of affairs till great 
things were ready, one by one, to fall into his lap, so that, though 
sometimes not in office, he may be said, in a certain sense, never 
to have been out of office the great office of his life, strong 
common sense, which, though more than once begrimed by the 
fallacies and passion of interested partisans, enabled him at last 
to see things as they were, and to recover himself ere it was too 
late, and a firmness of purpose and a constancy of pursuit which 
kept the great object of his ambition steadily before his eyes. 
These were the means on which he relied, and in which he was 
not deceived. Nor was his career unmarked by fluctuations 
which even at this distance of time appear formidable. His re- 
call from the French mission by Washington, was one of those 



151 Bushrod Washington, John Marshall, and James Madison. 



VIRGINIA CONVENTION OF 1788. 171 

ominous incidents in his history which would have proved fatal 
to the ambition of a less-determined spirit than his own. And 
at a later day, when, on his return from the court of St. James, 
he found himself almost unconsciously at the head of a small but 
influential faction which had stolen off rather than broke off from 
the great party to which he had devoted his life, and which sought 
to put him forward for the succession. In ordinary times no eye 
would have detected sooner than his own the specious snare 
which was spread for his destruction ; but his long absence from 
home, which had precluded him from a correct knowledge of 
affairs, the noise made by his advocates in public bodies, and 
especially in the social circles of Virginia, which he now made 
his residence, and some private griefs which, if they had been 
left alone, would have soon healed without a scar, but which, by 
the chirurgery of his new allies, were made to inflame and fester, 
obscured for a season his better judgment, and he lent for a while 
a not unwilling ear to the tempter. From the predicament, the 
most dangerous in his whole career, in which he was now placed, 
and which was regarded with unfeigned delight by his old ene- 
mies and with mortification by his old friends, he was rescued by 
one of those trivial incidents which are usually thought beneath 
the dignity of history, but which sometimes explain results other- 
wise beyond the keenest vision. But even here, in this fortunate 
reconciliation with his late and successful rival in the game of 
presidential honors, it was the distinctive peculiarity of his char- 
acter and the honesty of his nature which effected his deliver- 
ance. 152 

Our view of the character of Monroe would be incomplete, so 
far as our present theme is concerned, if it did not embrace his 
qualities as a public speaker. He had acquired the habit of de- 
bate in the House of Delegates and in the Congress of the Con- 
federation, but he had never studied the art of speech. Pronun- 
ciation, emphasis, gesture, in their full significancy, never crossed 
his mind as things deserving a moment's consideration ; and, as 
he did not value them himself, so he set a very slight value upon 
them in the speaking of others. Like a workman who, in 
choosing from the forest a shaft for his present purpose, heeds 



152 I do not feel altogether at liberty to state the circumstances which 
led to the reconciliation between Mr. Madison and Colonel Monroe, 
but it will be known in due time. 



172 VIRGINIA CONVENTION OF 1788. 

Bj 

not the elevation and grandeur of the tree which he is about to 
fell, or the magnificent sweep of those branches which have 
wrestled with the tempests of ages, or in the shadow of which, 
ere the foot of the Anglo-Saxon had touched the shores of the 
New World, the Indian hero had wooed his dusky mate, or the 
tremulous glory of its leaf, he disregarded that splendid illustra- 
tion which invests the speeches of an Everett with the dignity 
of an epic, and looked to the staple of a speech as the only ob- 
ject that could justify a rational creature in expending his own 
breath and the time of other people. Hence there is hardly a 
perceptible change, certainly no improvement, in his oratorical 
powers from the beginning to the end of his parliamentary 
course. As he spoke now, so he spoke forty years later, when, 
in the midst of an august assembly whose passions were roused 
by a prolonged discussion of the most exciting topics, he most 
unexpectedly rose to present his views of the subject under de- 
bate. Now, as then, his manner, if indeed he may be said to 
have had any manner at all, was to the last degree awkward, 
warring at once with the common laws of motion and the estab- 
lished rules of pronunciation ; while in both instances his matter 
was sterling, his purposes were manifestly sincere, and his aims 
were those of a statesman who had reflected profoundly upon his 
theme. What seemed at the first view to be a defect, really con- 
tributed no little to his success in public bodies. The temper of 
mind which made him overlook the mere drapery of rhetoric 
rendered him ever ready to take the floor. He had no idea of 
the mollia temporafandi. He could not conceive why a man 
who had anything to say could not say it at one time as well as 
another. The same temper rendered him invulnerable to the 
gibes of wit and to the sword of sarcasm ; and, free from ner- 
vous palpitations, and unhurt in the wildest storm of party mis- 
siles, he was an invaluable leader in times of trouble. 

It is not an unworthy office to hold up the example of Monroe 
for the imitation of the young, and especially of the friendless 
young, who are entering on the public stage. It is a beacon, the 
light of which may not necessarily, in the shifting changes of the 
world, conduct to ultimate triumph in politics, but will lead to 
personal improvement, certainly to distinction, and as certainly 
to the esteem and love of mankind. And even this view of the 
subject appears low when we look abroad and embrace within 



VIRGINIA CONVENTION OF 1788. 173 

the scope of our vision those grand arrangements of Providence 
which control the operation of human affairs, which so frequently 
confound the schemes of a vain imagination and even of brilliant 
genius, and which stamp the moral virtues with a far deeper im- 
press of approval than those more alluring and more dazzling 
qualities which men are so eager to cultivate and rely upon as 
the foundation of success in the business of life. 

We have said that the training of Monroe was effected mainly 
by his commerce with the world; and to him the scene now 
shifting its many-colored hues around him was the best of schools. 
Before he entered the Convention he had studied the new plan 
carefully, aided by the lights which, from both sides, had been cast 
upon it ; and during the present discussion he had listened at- 
tentively, making notes of the arguments and referring to the 
cited authorities ; and his speech is a wonderful proof of the 
success with which he prosecuted his labors. Viewed apart from 
the discussions of the period, both in and out of the House, both 
on the rostrum and from the press, it evinces not only a thorough 
acquaintance with the instrument itself, perfect logical consis- 
tency, and no little familiarity with the more abstruse illustra- 
tions drawn from ancient and modern history, with which it was 
sustained or opposed, but such a comprehensive grasp of his 
subject as to lead to the conviction that he had demonstrated the 
true cause of the existing troubles of the country, that he was 
ready to apply an immediate, safe, and effective remedy. His 
introduction was modest and appropriate : "I cannot avoid ex- 
pressing," he said, "the great anxiety which I feel upon the 
present occasion an anxiety that proceeds not only from a high 
sense of the importance of the subject, but from a profound respect 
for this august and venerable assembly. When we contemplate 
the fate that has befallen other nations, whether we cast our eyes 
back into the remotest ages of antiquity, or derive instruction 
from those examples which modern times have presented to our 
view, and observe how prone all human institutions have been to 
decay ; how subject the best formed and wisely organized gov- 
ernments have been to lose their checks and totally dissolve ; 
how difficult it has been for mankind, in all ages and countries, 
to preserve their dearest rights and best privileges, impelled, as 
it were, by an irresistible fate to despotism ; if we look forward 
to those prospects that sooner or later await our country, unless 



174 VIRGINIA CONVENTION OF 1788. 

we shall be exempted from the fate of other nations, even to a 
mind the most sanguine and benevolent, some gloomy apprehen- 
sions must necessarily crowd upon it. This consideration is suffi- 
cient to teach us the limited capacity of the human mind how 
subject the wisest men have been to error. For my own part, sir, 
I come forward here, not as the partisan of this or that side of the 
question, but to commend where the subject appears to me to 
deserve commendation, to suggest my doubts where I have any, 
to hear with candor the explication of others, and, in the ulti- 
mate result, to act as shall appear for the best advantage of our 
common country." 

He called attention to the spectacle of a people about to frame 
a new plan of government as in striking contrast with the history 
of Europe for the last twelve centuries ; pointed out the distinct- 
ive elements of our colonial settlement, and the change effected 
by the Revolution, which put the government into the hands of 
one class only not of nobles and freemen as in other systems, 
but of freemen only ; that the success of the American polity 
could only be sustained by the union of the States, and that this 
union was dearly cherished by all the States except Rhode 
Island, 103 and that the question now was on what principles the 
union should be constructed. With a view of reaching a cor- 
rect result, he reviewed the Federal alliances of ancient and 
modern times, and especially the construction of the Amphyc- 
tionic Council, and showed the causes of its downfall ; he next ad- 
verted to the Achaian league, and pointed out its closer analogy 
with the Articles of Confederation, arguing with seeming force 
from that resemblance that our Confederation was not as weak 
as was contended by the friends of the new plan, and seeking to 
sustain his argument by quotations from Polybius, which he read 
to the House. He successively reviewed in detail the constitu- 
tion of the Germanic body, of the Swiss Cantons, of the United 
Netherlands, and of the New England Confederacy, and inferred 
that as the destruction or inadequacy of the foreign federal asso- 
ciations arose from a dissimilarity of structure in the individual 
members, the facility of foreign interference, and the recurrence 



153 The conduct of Rhode Island during the Revolution and subse- 
quently, met with no quarter from either side of the House throughout 
the debates. 



VIRGINIA CONVENTION OF 1788. 175 

to foreign aid, which were not applicable to us, there was no pro- 
priety in rejecting a federal system and in accepting a consoli- 
dated government in its stead. This view was enforced at great 
length, and with an intimate knowledge of the circumstances of 
the country. He then discussed the question, " What are the 
powers which the Federal Government ought to possess?" 
arguing from various considerations that the entire control of 
commerce ought to be given to the new plan, and that the power 
of direct taxation, from its inexpediency, from the impracticability 
of its use, and from its peculiarity, should be withheld from it, 
demonstrated that the present pressure on the Confederation was 
from obvious causes not likely to occur again, but temporary, 
and would soon pass away ; and that the means of relief, in addi- 
tion to the control of commerce and the imposts which at five 
per cent, it was estimated would exceed a million of dollars, 
would be found in the sale of public lands which were rapidly 
settling, in loans, which would be readily negotiated at a low 
rate under the auspices of a large and certain revenue, and in 
the last resort to requisitions upon the States. These topics 
were argued deliberately and with great tact. He then pro- 
ceeded to analyze the new. scheme of government, and concluded 
that it was dangerous ; that a bill of rights was necessary ; that 
the doctrine that all powers not ceded were retained might prove 
utterly delusive, as by an evasion the Congress, under the clause 
which gives power to pass all laws necessary for carrying the 
plan into effect, might pass what laws they pleased, and might 
destroy trial by jury, and the liberty of the press, and other 
precious rights. He considered the alleged probability of har- 
mony between the General Government and the States, conclud- 
ing that, as history did not afford a single instance of the con- 
current exercise of powers by two parties without producing a 
struggle between them, such would certainly be the case with us. 
He then objected to the construction of the executive depart- 
ment as violating the correct idea of a legislative power, and of 
other parts of the new plan, ending in these words, ' ' upon review- 
ing this government, I must say, under my present impression, 
I think it a dangerous government and calculated to secure 
neither the interests nor the rights of our countrymen. Under 
such an one I shall be averse to embark the best hopes and 
prospects of a free people. We have struggled long to bring 






176 VIRGINIA ^CONVENTION OF 1788. 

about this Revolution by which we enjoy our present freedom 
and security. Why then this haste, this wild precipitation?" 

Monroe was immediately succeeded on the floor by a tall 
young man, slovenly dressed in loose summer apparel, with 
piercing black eyes, that would lead the observer to believe that 
their possessor was more destined to toy with the Muses than to 
worship at the sterner shrine of Themis, his senior by three 
years ; who had been his colleague in the old-field school, in the 
army of the North through a long and perilous war, in the col- 
lege, and at the bar ; who, as on the present occasion, differed 
with him in opinion, as on all others, during their continuous race 
of half a century, and who was destined, like him, to fill the 
mission to France when one of the greatest political mael- 
stroms of modern times was in full whirl, and to preside in the 
Department of War and in the Department of State under the 
Federal Constitution. But when one of them withdrew from the 
House of Representatives and the other from the Senate of the 
United States, their paths diverged, the elder devoting himself 
entirely to politics, the younger to law, each with such success 
that the pen which traces the history of James Monroe as 
the head of the Federal Executive, will record on the same 
page the history of John Marshall as the head of the Fed- 
eral Judiciary. Marshall was in his thirty-third year, and 
from the close of the war to the meeting of the Convention, had 
applied himself, with the exception of an occasional session in 
the House of Delegates, to the practice of the law. His manners, 
like those of Monroe, were in strange contrast with those of Ed- 
mund Randolph or of Grayson, and had been formed in the 
tutelage of the camp, without, however, a tinge of that martinet 
address which derides the rule of Hogarth, and consists in 
making a stiff vertebral column the line of beauty and of grace ; 
his habits were convivial almost to excess ; and he regarded as 
matters beneath his notice those appliances of dress and de- 
meanor which are commonly considered not unimportant to ad- 
vancement in a public profession. Nor should those personal 
qualities which cement friendships and gain the affections of 
men, and which he possessed in an eminent degree, be passed 
over in a likeness of this young man qualities as prominently 
marked in the decline of his honored life, when his robe had 
for a third of a century been fringed with ermine, as when, in 



VIRGINIA CONVENTION OF 1788. 177 

the heyday of youth, dressed in a light roundabout, he won his 
way to every heart. Nor, as it is our duty as well as our plea- 
sure to dwell on the domestic relations of our subjects, should 
we fail to say that he had married, some years before, a charming 
woman, whose loveliness was the least of her perfections ; who 
was the guardian angel of his earlier years, beckoning him from 
the snares which thickly beset his amiable temper and social pro- 
pensities ; who was the delight of his long life ; whom, when 
laid for years upon that bed from which she was never to rise, 
he tended with the watchfulness of early love; and whom, 
when taken from him after an union of near half a century, he 
commemorated, on the first anniversary of her death, in a tri- 
bute which never saw the light till he was no more, written with 
such exquisite pathos as to touch the sternest heart, and which, 
in a mere literary point of view, excels the productions, not only 
of his own pen, but the pen of almost all his illustrious contem- 
poraries. 15 * 

His speech now delivered has the peculiar marks which were 
visible in his subsequent speeches in the House of Delegates, 
and especially in that most celebrated of all his speeches the 
speech delivered in the case of Jonathan Robbins in the House 
of Representatives, of which Gallatin, when pressed by a leading 
politician to answer it, said in his then broken English: "An- 
swer it yourself; for my part I think it unanswerable." It will 
afford in after times a worthy theme to those who are curious in 
watching the development of a great mind in the several stages 
of its progress. Nothing could be more directly to the point 
than its exordium. " I conceive," he said "that the object of 
the discussion now before us is whether democracy or despotism 
be most eligible. I am sure that those who framed the system 
submitted to our investigation, and those who now support it, 
intend the establishment and security of the former. The sup- 

154 The maiden name of Mrs. Marshall was Mary Ambler, who was 
married to the Judge on the 3d of January, 1783, and died on the 25th 
day of December, 1831. The paper alluded to was written on the 25th 
of December, 1832, and may be found in Bishop Meade's "Old 
Churches," Etc., II, 222. The letter of Mr. Jefferson to John Adams is 
another specimen of tender affection, and shows, in connection with 
the paper in question, that long and almost exclusive attention to pub- 
lic affairs does not always deaden the kindlier feelings of the heart. 
12 



178 VIRGINIA CONVENTION OF 1788. 

porters of the Constitution claim the title of being firm friends 
of liberty and of the rights of mankind. They say that they 
consider it as the best means of protecting liberty. We, sir, 
idolize democracy. Those who oppose it have bestowed eulo- 
giums on monarchy. We prefer this system to any monarchy, 
because we are convinced that it has a greater tendency to se- 
cure our liberty and promote our happiness. We admire it, 
because we think it a well-regulated democracy. It is recom- 
mended to the good people of this country ; they are, through 
us, to declare whether it be such a plan of government as will 
establish and secure their freedom. Permit me to attend to what 
the honorable gentleman (Henry) has said. He has expatiated 
on the necessity of a due attention to certain maxims, to certain 
fundamental principles from which a free people ought never to 
depart. I concur with him in the propriety of the observance 
of such maxims. They are necessary in any government, but 
more essential to a democracy than to any other. What are the 
favorite maxims of democracy ? A strict observance of justice 
and public faith, and a steady adherence to virtue. These, sir, 
are the principles of a good government. No mischief no mis- 
fortune ought to deter us from a strict observance of justice and 
public faith. Would to heaven that these principles had been 
observed under the present government ! Had this been the 
case, the friends of liberty would not be so willing now to part 
with it. Can we boast that our government is founded on these 
maxims ? Can we pretend to the enjoyment of political freedom 
or security, when we are told that a man has been, by an Act 
of Assembly, struck out of existence without a trial by jury, 
without examination, without being affronted by his accusers 
and witnesses, without the benefits of the law of the land ? 
Where is our safety, when we are told that this act was justifi- 
able, because the person was not a Socrates ? 155 What has be- 
come of the worthy member's maxims ? Is this one of them ? 



153 Nothing shows more plainly the desire of the friends of the Con- 
stitution to undermine the influence of Henry than the repetition of 
this charge, which is not only false in every respect, but which, if true, 
would only prove mal-administration in the State government, which 
the new plan, if adopted, could neither punish nor prevent a repetition 
of. The belief at the time was, though wholly wrong, that Henry, as 
Governor, had recommended the measure. 



VIRGINIA CONVENTION OF 1788. 179 

Shall it be a maxim that a man shall be deprived of his life with- 
out the benefit of law ? Shall such a deprecation of life be justi- 
fied by answering that the man's life was not taken secundum 
artem, because he was a bad man ? Shall it be a maxim that 
government ought not to be empowered to protect virtue? " 

His purpose was to follow in the track of Henry ; and pro- 
ceeded to controvert the views of that gentleman on the Missis- 
sippi question; on the relative expediency of previous and subse- 
quent amendments, and on the propriety of vesting the power of 
direct taxation in Congress, which he discussed at considerable 
length. He agreed with Henry that a government should rest 
on the affections of the people, and that the Constitution, founded 
upon their authority, and resting upon them, deserved and would 
receive their cordial support ; showed that the argument derived 
from the union of the purse and the sword in the same hands 
would apply to every government as well as the one under con- 
sideration; that the objection urged against the Constitution from 
the construction of the British government, which requires war to 
be declared by the executive and the resources for carrying it on 
to be provided by Parliament, was inapplicable, and that in fact 
the new plan gave a far greater and more reliable security to the 
people ; and closed with an able and critical comparison of the 
British Constitution with the plan under discussion, which last, 
he contended, was superior in every respect to the British, and 
peculiarly adapted to the wants and to the genius of the people 
of America. 

When we look to the subsequent career of Monroe and Mar- 
shall, their speeches delivered successively in the same debate 
have an interest which might not attach to them in an abstract 
view. The speech of Marshall is direct and conclusive, never 
departing a hair's breadth from the line of his argument. The 
objection which he wishes to overcome is stated fairly and fully, 
and he proceeds forthwith to remove it, using when possible the 
concessions of his antagonist for his purposes, and sometimes 
with such effect that an honest antagonist, confiding in his own 
maxims, feels inclined to accept the hostile commentary in place 
of his own. But his speech on this occasion, though in passing 
judgment the circumstances of its delivery must be kept in view, 
is plainly rather that of a lawyer than a statesman. He demon- 
strates with apparent conclusiveness the propriety of adopting 



180 VIRGINIA^CONVENTION OF 1788. 

the Constitution, but he seeks to effect his object not so much by 
arguments derived from the state of affairs, or from an examina- 
tion of the different Federal systems analogous to our own, or 
from a statesmanlike survey of the instrument itself, but mainly 
from the weakness of the arguments urged against it by its oppo- 
nents, a mode of argumentation as applicable to the defence of 
the worst as well as the wisest political system. 

In drawing the auguries of subsequent success from these 
speeches of the young debaters, while it is evident that each, as 
an intellectual effort, exhibited abilities likely to attain distinction 
in any sphere of public employment, the speech of Marshall 
indicates those qualities which become rather the bar and the 
bench than the Senate and the cabinet, while the opposite con- 
clusion would probably be drawn from the speech of Monroe. 
It will be observed that these speeches, although following con- 
secutively in the same debate, have no relation to each other, 
each speaker having arranged his line of argument before he 
entered the House. 

Those who have come upon the stage since this illustrious man 
has descended to his grave, have a right to inquire into his 
habits of public speaking. Of his intellectual powers, the 
speeches, few indeed, but signally representative, which he has 
left behind him, 158 his celebrated letter to Adet, and his diplo- 
matic correspondence, his arguments in the Virginia reported 
cases, and above all, his judicial opinions, which from the first 
abounding in strength, became more elaborate and more elegant 
as he advanced in life, afford imperishable materials for the for- 
mation of a critical judgment. But not only have his equals 
and rivals, who heard his finest speeches at the bar and in public 
assemblies, passed away with him, but nearly all of that brilliant 
second growth of eminent men who took their places at the bar, 
and on whose ears the echoes of his speeches were almost as 
distinct as the original sounds which gave them birth, now rest 
beneath the sod. There is not more than one man living in Vir- 
ginia, himself distinguished, who heard his speeches in the House 
of Delegates during Washington's administration, nor, perhaps, 

156 j re g r et to say that with the exception of his speech in the present 
Convention, in the case of Jonathan Robbins, and those in the Conven- 
tion of 1829-30, I fear all are lost ; but even in this respect he is more 
fortunate than most of his compeers. 



VIRGINIA CONVENTION OF 1788. 181 

with the exception of an eminent citizen of Massachusetts, who, 
in extreme old age but with unimpaired faculties, appeared to 
honor a literary festival recently held in his native State, 107 who 
heard the speech of Marshall in the case of Jonathan Robbins. 
Yet, we are rejoiced to say that so prolonged was his life, so 
prominent was his position as the head of the Federal Judiciary 
and the presiding judge of his circuit for the first third of the 
present century, so accessible by the young as well as the old, by 
the poor as well as the rich, by the fair sex as well as the manlier, 
the former of which he treated with a true and a high chivalrous 
courtesy, which Bayard could not have surpassed a courtesy 
the more sincere, as it was but the reflection of his own guileless 
bosom that there are hundreds yet living who can recall with 
delight the modest and the deep thoughtful lines of his benignant 
face, those piercing black eyes which never let the image of a friend 
any more than the semblance of an argument escape his vision, 
and his lofty figure clothed in the plainest dress of an ordinary 
citizen, and mingling constantly and kindly with his fellow-men 
in the street, in the market, on the quoit-ground, or reverently 
bent in the humblest posture at the Throne of Grace. But, in- 
timate as was his knowledge of the human heart, gathered from 
a long experience in the camp and at the bar, those fruitful 
schools of human nature, it was not by appeals to the interests 
and to the passions of men that he sought to lay the stress of 
his public efforts. Indeed, so utterly did he disregard all such 
appeals, that he launched in the opposite extreme, and as if 
conscious of the true sources of his power, he avoided every- 
thing that might influence the mind through the eye. Indeed, 
like his friend Monroe, he had no manner at all as a public 
speaker, if by manner we mean something deliberate and studied 
in action ; and he might be as readily expected to speak in a 
court-room with his hands on a chair, or with one of his legs 
over its back, or within two feet of a presiding officer in a public 
body, as in any other way. We have heard in early life from 
those who knew him at the bar, that his manner did not differ 

)T The Hon. Josiah Quincey, who said in his speech on the occasion 
alluded to that he was the only living member of Congress of the last 
century. Governor Tazewell entered the House of Representatives 
in 1800 to fill Judge Marshall's unexpired term. 



182 VIRGINIA CONVENTION OF 1788. 

% 

essentially from what it was when, forty years later than our 
present period, in the Convention of 1829-30, at several im- 
portant conjunctures, under a sense of deep responsibility, and 
pressed by powerful opponents, he engaged in discussion. In 
the common parts of his discourse he spoke with a serious 
earnestness and with an occasional swing of his right arm, but 
when he became animated, as we once beheld him, by the de- 
livery of his theme, which was the true import of certain words 
of the Federal Constitution relating to the Judiciary, and by the 
presence of several of the most astute men of that age who were 
opposed to him in debate, and who were watching him to his 
destruction, he rose to the highest pitch of pathetic declamation 
thoroughly blended with argument, the most powerful of all 
declamation ; and he might have been seen leaning forward with 
both arms outstretched towards the chair, as if in the act of 
calling down vengeance on his opponents, or of deprecating 
some enormous evil which was about to befall his country; while 
the tones of his voice, exalted above his usual habit, were in 
plaintive unison with his action. The report of this remarkable 
debate may be found elsewhere. 158 The triumph of Marshall's 
eloquence was heightened by the almost unequalled talents which 
were arrayed against him by the subtle and terrible strength of 
Tazewell, by the severe and sustained logic of Barbour, by the 
versatile and brilliant but vigorous sallies of Randolph, whose 
fame as the chairman of the Judiciary committee of 1802, which 
reported the bill of repeal of the law passed by the Fed- 
eralists altering the judiciary system to the House of Repre- 
sentatives, was at stake, and by the extraordinary skill and 
blasting sarcasm of Giles, heightened and stimulated by the 
recollections of ancient feuds which still burned brightly in the 
breast of his antagonist and in his own, and from a sense of 
personal reputation which was involved in the passage of the 
act of repeal in the House of Representatives, which he mainly 
carried through that body. Of all the scenes which occurred in 
the Convention of 1829-30, varied, animated, and intellectual as 
they were, whether we respect the exciting nature of the topic 
in debate, the zeal, the abilities, the public services, the venerable 



In the Debates of the Virginia Convention of 1829-30. 



VIRGINIA CONVENTION OF 1788. 183 

age, and the historical reputation of those who engaged in the 
discussion all enhanced in interest by the unequal division of 
the combatants in the field, this was, perhaps, the most striking 
which occurred in that body. And we feel the solemnity of this 
scene the more, when we recall the fact that in less than five 
years from the date of this eloquent exhibition of their faculties, 
every member who participated in the discussion, with the ex- 
ception of one who is yet living, was consigned to the grave. 

Now on such an occasion, opposed as we were to his views, 
and familiar with the topic as we then were a topic which had 
been so thoroughly discussed in Congress as to be incapable of 
novelty we could but accord the palm of eloquence to Mar- 
shall ; and as that eloquence did not consist in the strength of 
his argument for we thought his opponents had the better of the 
argument, or at least the right side of the question it was the 
triumph of his action, at once unexpected to his audience, 
unpremeditated by himself, and affording an unequivocal proof 
of what he was capable of accomplishing on a proper occasion 
and in the prime of his powers. 

As soon as Marshall had resumed his seat, and while the 
members were exchanging opinions respecting the relative merits 
of the two young men who had just appeared for the first time 
on the floor, there arose a large and venerable old man, elegantly 
arrayed in a rich suit of blue and buff, a long queue tied with 
a black ribbon dangling from his full locks of snow, and his long, 
black boots encroaching on his knees, who proceeded, evidently 
under high excitement, to address the House. He had been 
so long a member of the public councils that even Wythe and 
Pendleton could not easily recall the time when he had not been 
a member of the House of Burgesses. His ancestors had landed 
in the Colony before the first House of Burgesses had assembled 
in the church on the banks of the James, and had invoked in 
the presence of Governor Yeardley the blessing of heaven on 
the great enterprise of founding an Anglo-Saxon colony ori the 
continent of America. One of his ancestors had been governor 
of Somer's Islands, when those islands were a part of Virginia. 
Others had been members and presidents of the Council of Vir- 
ginia from the beginning of the seventeenth century to that 
memorable day in August, 1774, when the first Virginia Conven- 



184 VIRGINIA CONVENTION OF 1788. 

tion met in Williamsburg, and appointed the first delegation to 
the American Congress. 159 Of that delegation, whose names are 
familiar to our school-boys, and will be more familiar to the youth 
of future generations, this venerable man had been a member, 
had hastened to Philadelphia, and had declared to John Adams 
that, if there had been no other means of reaching the city, he 
would have taken up his bed and walked. But this was not his 
first engagement in the public service. Educated at William 
and Mary, when that institution was under the guardianship of 
Commissary Blair, he entered at an early age the House of 
Burgesses, and in the session of 1764 was a member of the com- 
mittee which drafted the memorials to the king, the lords, and 
the commons of Great Britain against the passage of the Stamp 
Act. During the following session of the House of Burgesses, in 
1765, he opposed the resolutions of Henry, not from any want 
of a cordial appreciation of the doctrines asserted by them, but 
on the ground that the House had not received an answer to the 
memorials which he had assisted in drawing the year before, 
which were daily expected to arrive. In the patriotic associa- 
tions of those times his name was always among the first on the 
roll. He was a member of all the Conventions until the inaugu- 
ration of the Commonwealth, and in the first House of Delegates 
gave a hearty co-operation in accommodating the ancient polity 
of the Colony to the requisitions of a republican system. But 
his most arduous services were rendered in the Congress, and 
as a representative of Virginia in that body he signed the Decla- 
ration of American Independence. While in Congress he had 
presided on the most important committees, especially on those 
relating to military affairs, and on the Committee of the Whole 
during the animated discussions on the formation of the Articles 
of Confederation, and had been repeatedly deputed by Congress 
on various missions at critical periods to the army and to the 
States. On his return home he had been regularly a member of 
the House of Delegates, of which he was almost invariably the 
Speaker while he had a seat in the Assembly. He was in the 



159 That delegation consisted of Peyton Randolph, George Wash- 
ington, Benjamin Harrison, Edmund Pendleton, Patrick Henry, and 
Richard Bland. 



VIRGINIA CONVENTION OF 1788. 185 

chair of the House when, in 1777, the bill attainting Philips had 
been passed, and he knew that the bill had been drawn by Jeffer- 
son, his old colleague in the House of Burgesses, in the Conven- 
tions, and in Congress, in whose judgment and patriotism he had 
unlimited confidence. He remembered what a dark cloud was 
resting upon his country when the miscreant Philips with his 
band was plundering and murdering the wives and daughters of 
the patriotic citizens of Norfolk and Princess Anne, who were 
engaged elsewhere in defending the Commonwealth, attacking 
them in the dead of night, burning their habitations, perpetrating 
the vilest outrages, and then retreating at daybreak into the 
recesses of the swamp ; and that all the Assembly had done 
under such provocation was to provide that, if the wretch did 
not appear within a certain time and be tried by the laws of the 
Commonwealth for the crimes with which he was charged, he 
should be deemed an outlaw ; and he felt indignant that such a 
patriotic measure, designed to protect the lives and property of 
the people, should be wrested from its true meaning by the quib- 
bles of attorneys, and receive such severe condemnation. Before 
he took his seat he declared his opposition to the Constitution, 
little dreaming that the half-grown boy whom he had left at 
Berkeley blazing away at the cat- birds in the cherry-trees, or 
angling from a canoe for perch in the river that flowed by his 
farm, would one day wield the powers of that executive which 
he now pronounced so kingly. 

When Benjamin Harrison Jraa pronounced the accusation of 
the General Assembly in respect to Josiah Philips, unjust, he 
declared that it had been uniformly lenient and moderate in its 
measures, and that, as the debates would probably be published, 
he thought it very unwarrantable in gentlemen to utter expres- 
sions here which might induce the world to believe that the 
Assembly of Virginia had perpetrated murder. He reviewed in 
a succinct manner the proposed plan of government, declared 
that it would infringe the rights and liberties of the people; that 
he was amazed that facts should be so distorted with a view of 
effecting the adoption of the Constitution, and that he trusted 
they would not ratify it as it then stood. This aged patriot did 
not engage in debate during the subsequent proceedings of the 
Convention. He felt that his time of departure was near, and in 
less than three years after the adjournment of the Convention, at 



186 VIRGINIA CONVENTION OF 1788. 



Berkeley his patrimonial seat on the James, he was gathered to 
his fathers. 160 

George Nicholas replied to Harrison that in the case of Philips, 
the turpitude of a man's character was not a sufficient reason to 
deprive him of his life without a trial that such a doctrine was 
a subversion of every shadow of freedom. He then passed to 
an examination of the various arguments which had been urged 
by Henry in his last speech, taking them up one by one, and 
sought to demonstrate that they were either unsound in them- 



160 1 have represented Harrison as a large man, over six feet; but the 
reader will not confound him with his namesake and relative, Benjamin 
Harrison, who removed to Georgia, where he died in 1818, aged forty- 
five, and who measured seven feet two inches and a-half in his stock- 
ings I frequently allude to the stature of our early statesmen, not 
only because their physical qualities are proper subjects for remark, 
but because of the theory of the French philosopher about the dwindling 
of the human race on this side of the Atlantic was a playful subject 
with our fathers. Every member of the first deputation to Congress 
reached six feet or over. Randolph. Washington, Henry, Pendleton, 
R. H. Lee, Bland, and Harrison were six feet their average height 
being over six feet, and their average weight would have been two 
hundred. 

In another place I have spoken of Herman Harrison as one of the 
early governors of Virginia; I should have said of the Somer's Islands. 
By the way, it was during the term of Herman Harrison that tobacco 
worms and rats became popular on our plantations, as will be seen by 
the tract of Captain John Smith on the " Confusion of Rats," Vol. II, 141. 
From copies of records in the British State Paper Office, made by my 
friend Conway Robinson, Esq., I perceive that the Harrisons were 
among the earlier settlers. I ought to allude to the harsh comments 
on Colonel Harrison, which appear in the diary of John Adams, recently 
published in the edition of his works by his son. It was evidently a 
hasty entry, made under some casual provocation, and never revised. 
There could be, however, but little congeniality between the two men. 
from their tastes and prejudices, and their modes of life, but it is 
known that there was something like a feud in the Virginia delegation 
at the time the entry was made, and Adams sided warmly with Richard 
Henry Lee and against Harrison. Perhaps this notice is all the entry 
requires and deserves. Harrison corresponded with Washington 
during the war, and in one of his letters commended Edmund Ran- 
dolph to him as a promising young man, when that young man, in 1775, 
visited Cambridge with a view of entering the army. A copy of this 
letter, which is too racy for publication, I have in my collection, and am 
indebted for it to George M. Conarroe, Esq., of Philadelphia. 



VIRGINIA CONVENTION OF 1788. 187 

selves or inapplicable to the plan under consideration. On the 
conclusion of the speech of Nicholas, the House adjourned. 

On Wednesday, the eleventh of June, the first and second sec- 
tions still nominally the order of the day, and Wythe in the 
chair, Madison took the floor and discussed the subject of direct 
taxation in all. its bearings, replying by the way to the argu- 
ments of Henry against the expediency of vesting that power in 
the Constitution, and delivered the most elaborate speech of his 
whole life. It will ever afford an admirable commentary on that 
part of the Constitution which it was designed to expound. But 
our limits will allow us only to refer to a topic he touched upon, 
which has a singular interest in connection with his subsequent 
career in the administration of the Federal Government. When 
he had showed the importance of a certain and adequate revenue 
to a State in order to guard against foreign aggression, he said : 
<l I do not want to frighten the members of this Convention into 
a concession of this power, but to bring to their minds those 
considerations which demonstrate its necessity. If we were 
secured from the possibility or the probability of danger, it 
might be unnecessary. I shall not review that concourse of 
dangers which may probably arise at remote periods of maturity, 
nor all those which we have immediately to apprehend ; for this 
would lead me beyond the bounds which I have prescribed my- 
self. But I will mention one single consideration drawn from 
the fact itself. By the treaty between the United States and his 
most Christian majesty, among other things it is stipulated that 
the great principle on which the armed neutrality in Europe was 
founded, should prevail in case of future wars. The principle is 
this, that free ships shall make free goods, and that vessels and 
goods both shall be free from condemnation. Great Britain did 
not recognize it. While all Europe was against her, she held 
out without acceding to it. It has beer* considered for some 
time past that the flames of war already kindled would spread, 
and that France and England were likely to draw those swords 
which were so recently put up. This is judged probable. We 
should not be surprised in a short time to consider ourselves a 
neutral nation ; France on one side and Great Britain on the other. 
What is the situation of America ? She is remote from Europe 
and ought not to engage in her politics or wars. The American 
vessels, if they can do it with advantage, may carry on the com- 



188 VIRGINIA CONVENTION OF 1788. 

merce of the contending nations. It is a source of wealth 
which we ought not to deny to our citizens. But, sir, is there 
not infinite danger, that in spite of all our caution we may -be 
drawn into the war ? If American vessels have French prop- 
erty on board, Great Britain will seize them. By this means we 
shall be obliged to relinquish the advantage of a, neutral nation, 
or be engaged in a war. A neutral nation ought to be respect- 
able, or else it will be insulted or attacked. America in her 
present impotent situation would run the risk of being drawn in 
as a party in the war, and lose the advantage of being neutral. 
Should it happen that the British fleet should be superior, have 
we not reason to conclude, from the spirit displayed b}^ that 
nation to us and to all the world, that we should be insulted in 
our own ports, and our vessels seized ? But if we be in a respect- 
able situation, if it be known that our government can command 
the whole resources of the nation, we shall be suffered to enjoy 
the great advantages of carrying on the commerce of the nations 
at war, for none of them would be anxious to add us to the num- 
ber of their enemies. I shall say no more on this point, there 
being others which merit your consideration." 

The future historian, when he peruses the speech from which 
we have made an extract, will pause in silent wonder, and will 
hesitate whether most to admire the thorough knowledge of the 
operations of a government yet untried which it displays, the 
vigor of its reasoning, now close, now wide, as the particular 
topic in hand required, or the profound sagacity of its author. 

Madison was succeeded by George Mason. It has been 
remarked by one of the most celebrated orators of the present 
age, that it is an advantage to a speaker of the first order of 
ability, and to such only, to succeed the delivery of a first-rate 
speech, that the attention of the audience is fixed firmly on the 
subject in debate, and that there is a craving for a reply. 161 In 
this respect, Mason could not have been more fortunate, and in 
another not less so ; for the speech which had just been delivered 
was addressed to the reason and not to the passions of the 
House, and the eminent perfection of Mason rested on his logi- 
cal power, in his knowledge of the British polity, and in his 
experience as a statesman. Hitherto Henry had stood alone 



Lord Brougham's Miscellanies, I, 184, note. 



VIRGINIA CONVENTION OF 1788. 189 

alone, but unsubdued exposed to the severest fire which up to 
this moment in our parliamentary history had ever been levelled 
against a single speaker. The maxims drawn by Henry from 
the British Constitution, and so long accepted as undeniable 
truths, the examples cited by him from ancient and modern his- 
tory, the practical doctrines and lessons drawn from our own 
institutions, which he had from time to time reiterated in the 
House, had been examined in detail by the able debaters who 
had successively appeared on the rloor, and had almost been 
frittered away, and in the comparatively brief space of time 
allowed for a reply amid the innumerable arguments against the 
new plan with which his mind was teeming, as the discussion 
advanced, and as the fate of the Constitution was drawing nigh, 
it was impossible for him to reply in detail. Hence the service 
of such a coadjutor as Mason at that time was as appropriate as 
it was welcome. 

After some observations on the propriety of arguing at large 
instead of confining the debate to a particular clause in the 
present condition of the House, he reverted to an argument of 
Nicholas', borrowed from Dr. Price, on the subject of the repre- 
sentation of the British people in the House of Commons, and 
showed that the remark could only apply to a single political 
system a government totus leres alque rotundus\.\\a.t as it was 
admitted by Nicholas that five hundred and fifty members could 
be bribed, then it was as much easier to bribe sixty-five, the 
number of the new House of Representatives, as sixty five was 
less five hundred and fifty ; that the bribery of the House of 
Commons was effected mainly by the distribution of places, 
offices and posts, and that Congress was authorized to create 
these at its discretion, and, as he sought to show, without any 
practical restraint. He proceeded to prove that the unlimited 
power of taxation vested in the Constitution would ultimately 
result in the oppression of the people ; that the concurrent 
power of taxation by two governments would necessarily clash ; 
that the mode of requisitions, while it would promote economy 
in the administration of the Federal Government, would prevent 
any unpleasant collision between the parties, and that he was 
willing to yield the power of taxation as a resource where requi- f 
sitions failed. He showed what would be the subject of taxation 
under the new plan, establishing his point by a quotation from a 



190 VIRGINIA CONVENTION OF 1788. 

letter of Robert Morris, the financier of the government, de- 
nounced the poll-tax, as well as the other taxes proposed in that 
letter, as peculiarly severe upon the slave-holding States, and 
invoking a certain conflict between the governments. He 
denied that Congress would possess the proper information for 
the assessment of direct taxes, especially as it was said that the 
body would be composed of the well-born that aristocratic 
idol, that flattering idea, that exotic plant, which has been lately 
imported from Great Britain and planted in the luxuriant soil of 
this country. 162 He established the position of Henry about the 
difficulty of getting back powers once given away, and showed 
that out of a thousand instances where the people precipitately 
and unguardedly relinquished power, there has not yet been one 
solitary instance of a voluntary surrender of it back by rulers, 
and defied the production of a single case to the contrary. 
Following the line of argument pursued by Randolph, he ex- 
pressed his love of the union and his opinion on another topic 
not devoid of interest at the present time. "The gentleman 
(Randolph) dwelt largely on the necessity of the union. A 
great many others have enlarged upon this subject. Foreigners 
would suppose, from the declamation about union, that there 
was a great dislike in America to any general American govern- 
ment. I have never in my whole life heard one single man 
deny the necessity and propriety of the union. This necessity 
is deeply impressed upon every American mind. There can be 
no danger of any object being lost when the mind of every man 
in the country is strongly attached to it. But I hope it is not to 
the name, but to the blessings of union that we are attached. 
Those gentlemen who are the loudest in their praises of the 
name are not more attached to the reality than I am. The 
security of our liberty and happiness is the object we ought to 
have in view in wishing to establish the union. If, instead of 
securing these we endanger them, the name of union will be but 
a trivial consolation. If the objections be removed if those 
parts which are clearly subversive of our rights be altered no 
man will go further than I will to advance the union. We are 
told in strong language of the dangers to which we will be ex- 



62 The term " well-born " had dropped in conversation from a friend 
of the Constitution. 



VIRGINIA CONVENTION OF 1788. 191 

posed unless we adopt this Constitution. Among the rest, 
domestic safety is said to be endangered. This government does 
not attend to our domestic safety. It authorizes the importation 
of slaves for twenty-odd years, and thus continues upon us that 
nefarious trade. Instead of securing and protecting us, the 
continuation of this trade adds daily to our weakness. Though 
this evil is increasing, there is no clause in the Constitution that 
will prevent the Northern and Eastern States from meddling with 
our whole property of that kind. There is a clause to prohibit 
the importation of slaves after twenty years ; but there is no 
provision made for securing to the Southern States those they 
now possess. It is far from being a desirable property. But it 
will involve us in great difficulty and infelicity to be now deprived 
of them. There ought to be a clause in the Constitution to 
secure us that property, which we have acquired under our for- 
mer laws, and the loss of which would bring ruin on a great 
many people." 

When Mason had replied to most of the arguments of Ran- 
dolph, maintaining his opinions from authorities, which he read 
on the floor, he discussed the objection of the difficulties that 
might result from delay, and referred to the inconsistency of the 
course of that gentleman : " My honorable colleague in the late 
Convention seems to raise phantoms, and to show a singular 
skill in exorcisms, to terrify and compel us to take the new gov- 
ernment with all its sins and dangers. I know he once saw as 
great danger in it as I do. What has happened since to alter 
his opinion ? If anything, I know it not. But the Virginia 
Assembly has occasioned it by postponing the matter ! The 
Convention has met in June, instead of March or April ! The 
liberty or misery of millions yet unborn are deeply concerned in 
our decision. When this is the case, I cannot imagine that the 
short period between the last of September and the first of June 
ought to make any difference. The union between England and 
Scotland has been strongly instanced by the honorable gentleman 
to prove the necessity of acceding to this new government. He 
must know that the act of union secured the rights of the Scotch 
nation. The rights and privileges of the people of Scotland are 
expressly secured. We wish only our rights to be secured. 
We must have such amendments as will secure the t liberty and 
happiness of the people on a plain, simple construction, not on 



192 VIRGINIA CONVENTION OF 1788. 

^ 

a doubtful ground. We wish to give the Government sufficient 
energy on real republican principles ; but we wish to withhold 
such powers as are not absolutely necessary in themselves, but 
are extremely dangerous. We wish to shut the door against 
corruption in that place where it is most dangerous to secure 
against the corruption of our own representatives. 163 We ask 
such amendments as will point out what powers are reserved to 
the State governments, and clearly discriminate between them 
and those that are given to the General Government, so as to 
prevent future disputes and clashing of interests. Grant us 
amendments like these, and we will cheerfully with our hands 
and hearts unite with those who advocate it, and we will do every- 
thing we can to support and carry it into execution. But in its 
present form we can never accede to it. Our duty to God and 
to our posterity forbids it. We acknowledge the defects of the 
Confederation, and the necessity of a reform. We ardently wish 
for an union with our sister States on terms of security. This, I 
am bold to declare, is the desire of most of the people. On 
these terms we will most cheerfully join with the warmest friends 
of this Constitution. On another occasion I shall point out the 
great dangers of this Constitution, and the amendments which 
are necessary. I will likewise endeavor to show that amend- 
ments, after ratification, are delusive and fallacious perhaps 
utterly impracticable." 

There is one passage in this speech which, in a historical view, 
should not be omitted. We have more than once observed that 
the ratification of the Federal Constitution by Virginia was 
effected mainly by the military officers of the Revolution and by 
the judiciary of the State, in opposition to the wishes of a large 
majority of the ablest and wisest statesmen who had engaged in 
the theatre of that contest, and we readily conceive the reasons 
which impelled them to desire a more energetic government than 
could well exist under the Articles of Confederation. Soldiers 
and judges are rarely safe statesmen in great civil conjunctures ; 
but in the present instance their purity of purpose and their 



163 The disclosures made at a late session of Congress show that the 
evil apprehended by Mason is not imaginary. In fact, most of the 
leading opponents of the Constitution in Convention went down to 
their gravest in the full belief that they had witnessed for themselves a 
remarkable case of corruption in Congress. 






VIRGINIA CONVENTION OF 1788. 193 

patriotism were unquestionable. There was, however, another 
class of men friendly to the Federal Constitution, who had mani- 
fested from the dawn of the contest with Great Britain a decided 
reluctance to a change of dynasty, but who, with the object of 
securing their estates from confiscation, determined to take sides 
with the people. These disaffected, on all trying occasions, hung 
on the rear of the friends of freedom, and sought to obstruct 
their progress when they could effect their object safely and 
without suspicion. They opposed the resolution of independence 
in the Convention of 1776, and the Constitution of the Common- 
wealth, and, disinclined to widen the rupture with Great Britain, 
zealously opposed the ratification of the Articles of Confederation 
by the Virginia Assembly. 164 When the independence of the 
United States was recognized by Britain, and a return to the 
rule of the mother country became impracticable, guided by that 
distrust of the people which led them to obstruct the several 
capital stages of the Revolution, they were eager to establish a 
government as nearly allied in form to that which had been over- 
thrown as they could succeed in accomplishing. As these per- 
sons were possessed of high position, wide family connections, 
and abilities, their influence was sensibly felt by those able and 
patriotic rrfen who believed that the Constitution, however wisely 
intended by its framers, would ultimately result in impairing the 
liberties of the people. Yet it was a most delicate and difficult 
task to assail them. It was this aspect of the case which Mason 
had the courage to denounce, when he said: "I .have some 
acquaintance with a great many characters who favor this Gov- 
ernment, their connections, their conduct, their political principles, 
and a number of other circumstances. There are a great many 
wise and good men among them. But when I look around 
the number of my acquaintance in Virginia, the country wherein 
I was born, and have lived so many years, and observe who are 
the warmest and most zealous friends to this new government, it 
makes me think of the story of the cat transformed into a fine 
lady forgetting her transformation, and happening to see a rat, 
she could not restrain herself, but sprung upon it out of the 
chair." 

164 Letter of George Mason to R. H. Lee, May 18, 1776, in the archives 
of the Virginia Historical Society ; and Patrick Henry to R. H. Lee, 
December 18, 1777, in the " Red Hill " papers. 

13 



194 VIRGINIA CONVENTION OF 1788. 



Henry Lee, ever mindful of the tactics of his profession, and 
thinking he saw ah opening for a charge upon the enemy, sprang 
to the floor, and demurred to Mason's illustration of the cat and 
the fine lady. " The gentleman," he said, " has endeavored to 
draw our attention from the merits of the question by jocose 
observations and by satirical allusions. Does he imagine that he 
who can raise the loudest laugh is the soundest reasoner? Sir, 
the judgments and not the risibility of men are to be consulted. 
Had the gentleman followed that rule which he himself proposed, 
he would not have shown the letter of a private gentleman, who, 
in times of difficulty, had offered his opinion respecting the mode 
in which it would be most expedient to raise the public funds. 
Does it follow that since a private individual proposed such a 
scheme of taxation, the new Government will adopt it? But the 
same principle also governs the gentleman, when he mentions 
the expressions of another private gentleman the well-born 
that our representatives are to be chosen from the higher orders 
of the people from the well-born. Is there a single expression 
like this in the Constitution? This insinuation is totally unwar- 
rantable. Is it proper that the Constitution should be thus 
attacked with the opinions of every private gentleman ? I hope 
we shall hear no more of such groundless aspersions. Raising 
a laugh, sir, will not prove the merits nor expose the defects of 
this system." 165 

When Lee had exhausted his fire, there appeared on the floor 
for the first time one of those eminent men, the immediate 
growth of the Commonwealth, who blended in his character the 
qualities of the soldier and the statesman, and whose fame, won 
in various fields and in contact with his most distinguished con- 
temporaries, though obscured by the mists which have so long 
gathered over the memory of our early statesmen, may fitly fill 



165 It is evident from Lee's speech that the cat and the fine lady was 
not the only piece of fun with which Mason relieved one of his ablest 
arguments ; but there is not a shadow of humor in any other part of 
the reported speech. I may say here that it is almost impossible in a 
short synopsis to present fairly the arguments of a speech ranging over 
the entire Constitution, and recurring time and again to the same 
topics. Under such a process all the speeches lose what little savour is 
left by the original reporter, but especially those of Henry, Mason, and 
Grayson, the three great champions of the opposition. 



VIRGINIA CONVENTION OF 1788. 195 

one of the brightest pages in our annals. His military career, 
beginning with the dawn of the Revolution, and pursued for the 
most part under the eye of Washington with whom in early life 
he had hunted foxes over the moors of Westmoreland, and 
whose respect and esteem he enjoyed to the end of his life con- 
tinued nearly to its close, and was marked by enterprise, by 
intrepidity, and by success. But the military services of Wil- 
liam Grayson, prominent as they were, were lost sight of in the 
blaze which his civic accomplishments kindled about his name. 
It is hard to say whether he was more fortunate in his natural 
genius, or in those advantages which enabled him to discipline 
and develop it. Educated at Oxford, 166 to which he early re- 
paired, he not only acquired a correct knowledge of the Latin 
and Greek tongues and of the sciences, but cultivated so 
assiduously the purer literature of England, especially in the 
department of British history, that in his splendid conversa- 
tional debates, and in his speeches at the bar and in public 
bodies, his excellence in this respect was universally confessed. 
The time of his abode in England was opportune. There was 
indeed a momentary pause in the productions of English genius. 
The wits of Queen Anne's time had disappeared, but the glory 
of the Georgian era was yet in its dawn. The Johnsonian 
galaxy yet shone with a moderate lustre. Burke, who was 
known as the author of " a very pretty treatise on the sublime," 
was yet to make his magnificent speeches in the House of Com- 
mons, and Gibbon, who was spoken of in a small circle as the 
author of a clever tract in refutation of one of the ingenious 
theories which Warburton had ventured upon in his Divine 
Legation, had not yet put forth the first volume of the Decline 
and Fall. Even Johnson had not published the most elegant of 
his prose compositions, the Lives of the British Poets. But in 
the sister kingdom of the north there appeared in rapid succes- 
sion a series of literary works which reminded the world that 
Scotland was the home of Buchanan, of Boethius, and of Napier, 
and was now the abode of Hume, of Ferguson, of Kames, of 
Robertson, and of Adam Smith. Grayson, smitten with a love 
of learning, eagerly perused the works of these authors as they 

166 Grayson 's name does not appear in the Alumni Oxienses of the 
eminent antiquary and genealogist, Joseph Foster. ED. 



' 

196 VIRGINIA CONVENTION OF 1788. 

appeared ; but it was to the Wealth of Nations that he devoted 
all the energies of his intellect, and so thoroughly did he master 
the problems of the new philosophy, that in conversation and in 
debate he was proud to declare his allegiance to Adam Smith as 
the founder, or if not the founder, the great modern expositor 
of the science of political economy. 167 

After serving his terms in the Temple, with a mind richly im- 
bued alike with the learning of the law and with the living litera- 
ture of the age, and panting for honorable distinction, he returned 
to Virginia at a time when the opposition to British rule, begun 
in the House of Burgesses, had passed to the people, and when 
Associations were regarded by the colonists as the surest means 
of defending their rights. A rapid and striking panorama then 
passed before his eyes. The Conventions soon began to assem- 
ble ; the royal governor soon fled from his palace ; the House of 
Burgesses soon went down to rise no more ; and the Virginia 
regiments, fully equipped, were to be seen drawn up in the 
square at Williamsburg, or lounging in the shade of Waller's 
grove. Grayson instantly enrolled his name in one of the Asso- 
ciations, and became a candidate for the majority in the new 
corps, but was defeated by Alexander Spotswood. 168 In the 



167 A gentleman who knew Grayson intimately, told me that the 
Wealth of Nations had long been his favorite book, and that a favorite 
expression with him in the House of Delegates, when Virginia regu- 
lated her own commerce, and in Congress, was, " Let commerce alone ; 
it will take care of itself" a version of the answer of the French mer- 
chants to Colbert. 

168 Journal Convention of July, 1775, page 19. The first public act of 
Grayson was his participation in the Westmoreland meeting, which 
adopted the rules of association on the 27th day of February, 1766. 
Va. Hist. Reg., II, 17. I regret that I cannot ascertain his age, which is 
unknown to most of his descendants. As he was buried in a vault, we 
have no tombstone to refer to. and his coffin had no inscription upon 
it, as I learn from one who examined it. I have reason to believe that 
he was in England as late as 1765. One of his descendants states that 
he was educated at Edinburg ; another, equally intelligent and devoted 
to his memory, insists that he was educated at Oxford. Professor 
Tucker says he certainly studied law in the Temple. I have decided, 
from all the facts within my reach, that Oxford was the true place of 
his education. His combined classical and scientific acquirements, and 
especially his skill in Latin prosody, betoken an English training. My 
belief is that he was in his forty eighth year when he took his seat in 



VIRGINIA CONVENTION OF 1788. 197 

following year he was appointed colonel of the first battalion of 
infantry raised for the internal security and defence of the State. 
His spirit and intelligence early attracted the attention of Wash- 
ington, who invited him to become a member of his military 
family. With the affairs at Valley Forge his name is intimately 
connected, and was associated with that of Hamilton in the dis- 
charge of several important trusts. 169 He was at the battles of 
Long Island and White Plains, of Brandywine and Germantown, 
and at Monmouth he is believed to have commanded the first 
brigade in the order of attack. 170 He had been appointed colonel 
of a regiment to be raised in Virginia in January, 1777, and it 
was probably in the command of this regiment that he was 
engaged at Monmouth. 171 In 1779 his regiment was blended 
with Nathaniel Gist's, and, having become a supernumerary, he 
accepted the office of a Commissioner of the Board of War, 
which he had previously declined when a prospect of active 
service was before him, and in December of that year he took 
his seat at that Board, which he ultimately resigned on the loth 
of September, i78i. m In closing this allusion to the military 

the present Convention, as in the year 1775 he was a candidate for the 
office of major, along with such men as Thomas Marshall, the father 
of the Chief Justice, and in the following year was elected a full 
colonel (Journal House of Delegates, 1776, p. 104), while Henry Lee 
and Theodoric Bland were satisfied with captaincies. Colonel Clement 
Carrington told me that when he saw Grayson attending Congress in 
New York, in 1786, he thought he was about fifty, but it is well 
known that very young men are prone to overestimate the age of their 
seniors. The age of an individual may seem unimportant, but in a 
body of men made up of two or three generations, a knowledge of the 
relative ages of the members is indispensable to a correct representa- 
tion of their characters, and of their relative positions towards each 
other. 

169 Writings of Washington. V, 272. He was officially announced as 
aid to Washington in a general order dated "Headquarters at New 
York, 24th August, 1776." 

170 Morse, in a school history of the United States, is the authority of 
this statement 

171 Journals of the Old Congress, Vol. II, pp. 19, 60, 300. His lieu- 
tenant colonel was Levin Powell, also a member of the present Con- 
vention ; born in 1738, in Loudoun county ; representative in Congress > 
1799-1801 ; died at Bedford, Pa., in August, 1810. Ed. 

172 Journals of Congress, IV, 505, 524 ; V, 335; VII, 144. 



198 VIRGINIA CONVENTION OF 1788. 



offices which Colonel Grayson held during the war, one marked 
instance of his intrepidity, taken from the lips of the late and 
ever venerable Bishop White, deserves a record : " I was sitting 
in this house during the war," he said to a friend in conversation 
with him at his residence on Fifth street, Philadelphia, a short 
time before his death, "when a most furious mob of several 
hundred persons assembled on the opposite side of the street, 
and a few doors above this house, and I saw Colonel Grayson 
with some fifteen men, with fixed bayonets, hastily pass. My 
apprehension was that they would be torn to pieces ; but Colonel 
Grayson instantly entered the house of the rioters at the head of 
his small force, and in a few minutes the ringleaders were secured 
and the mob was dispersed." 173 

On his return to Virginia, Grayson continued the practice of 
the law until 1784, when he was deputed to Congress, and in 
March of the following year he took his seat in that body. To 
such a man opportunity was alone wanting to become an expert 
debater; and, although the deliberations of Congress were secret, 
we know that he soon acquired distinction on the floor. During 
his term of service some of the most serious questions that 
sprung up under the Confederation were disposed of. Among 
the number was the Connecticut cession of western lands with 
the Reserve, which he warmly opposed, and the passage of the 
Northwestern Ordinance, which he as warmly sustained. 174 But, 
to pass over his Congressional career, to which we shall revert 
hereafter, although firmly attached to the Government prescribed 
by the Articles of Confederation, he was candid enough to declare 
as early as 1785 that new and extensive powers ought to be 
engrafted upon it, and that the ninth article should be amended 

173 On the authority of a letter from Peter G Washington, Esq., dated 
August 24, 1856. Mr. Washington heard the Bishop narrate the inci- 
dent in the text. Mr. Washington is the grandson of the Rev. Spence 
Grayson, the brother ot the Colonel. I must confess my obligations to 
Mr. Washington for the information contained in his letters to me, which 
are the more valuable from their reference to the proper authorities. 

m i re g re t that I cannot put my finger on the short note of Grayson 
addressed to a friend in Virginia announcing the passage of the Ordi- 
nance. One ground of his satisfaction was, that the Northwestern 
States would not be able to make tobacco. The letter was published 
in the papers in 1845. 



VIRGINIA CONVENTION OF 1788. 199 

and extended, 175 and he was equally explicit in declaring what 
these new powers ought to be, and with what limitations they 
should be granted. Still there was a barrier in the way of his 
approval of the new Constitution which it was impossible to 
remove. It involved, in his opinion, a total change of polity; 
and for this change he felt that he was able to prove that there 
was no real necessity. 

But before we proceed to develop his views of the new plan, 
we must speak of him as he now was, in the meridian of his 
fame as the most elegant gentleman as well as the most accom- 
plished debater of his age. In this respect he had some quali- 
ties which were possessed in no ordinary degree by his great 
contemporaries ; but there were other qualities which he alone 
possessed, and which he possessed in an eminent degree. In 
massive logical power he had his equals ; but his distinctive 
superiority in this respect was marked by the mode of argu- 
mentation which he pursued, and which was peculiar to himself. 
Thoroughly comprehending his theme in all its parts, as if it 
were a problem in pure mathematics, and conscious of his 
strength, he would play with his subject most wantonly, calling 
to his aid arguments and illustrations the full bearing of which 
he saw, and which he knew he could manage, but which to ordi- 
nary hearers were as fraught with danger as they were easy of 
misrepresentation. He was equally wanton in his manner of 
treating the arguments of his adversaries, pushing them to the 
greatest extremes, and, as he worked his way without the slight- 
est intermixture of passion, often producing an effect upon his 
audience most worrying to his opponents, and near akin to the 
exhibition of humor itself. One practical effect was, that men 
laughed as heartily during his most profound arguments at the 
display of the wit of reason, as they are wont to do at the display 
of the wit which in other speakers ordinarily flows from the 
imagination. But there was one result which sometimes fol- 
lowed this sport of dialectics which was embarrassing in itself, 
and which was likely to lead to a loss of the game. He was 
liable to be misunderstood by those who were either unable or 
unwilling to follow him in the course of his flight, and he was 

175 Writings of Washington. Washington to Grayson, August 22, 
1785, IX, 125. 



200 VIRGINIA CONVENTION OF 1788. 

further liable to the wilful misrepresentations of those whose 
arguments he had handled with so little reserve. It exposed 
him also to the suspicion and distrust of a class of men, who, 
though they never engaged in debate, exercised no little influ- 
ence in and out of the House, and who had learned to confound 
gravity with logic, and thought that a man could no more rea- 
son than he could tell the truth with a smile, and who, if they 
had lived at the time of the invention of gunpowder, would have 
denied to the last that a man could be as effectually killed by a 
bullet or a round shot as by a bow and arrow ; or in the time of 
the Holy Wars, that a head could be as completely severed from 
the neck by the scimiter of Saladin as by the sword of Richard. 
But his uncommon versatility of logical power, which made 
every speech a specimen in dialectics, was only one of his accom- 
plishments as a debater. In the more refined departments of 
learning we have already said he was a proficient ; but in a min- 
ute acquaintance with the affairs of Congress since the war, when 
the defects of the Confederation had been fully developed, in a 
knowledge of all questions of commerce and political economy, 
and of the politics of England and of the continental States, 
which had been his favorite study abroad, and in a sound com- 
mon sense, which he did not suffer to be dazzled by his own spec- 
ulations any more than by the speculations of others, or deterred 
by the cumulative terrors of a present crisis, if he may be said to 
have had an equal in the House, he certainly had no superior in 
or out of it. Even these abundant stores of information, applied 
by an unimpassioned intellect to the case in hand, sometimes 
failed to produce their effects upon common minds ; for, as was 
observed of a celebrated English statesman, he was inclined to 
view questions requiring an immediate solution, not as they 
appeared, clogged with the interests and the passions of the 
moment, but as they would appear in the eyes of the next gen- 
eration a trait, which, though favorable to a reputation with 
posterity, is in ordinary cases fatal to a reputation for practical 
affairs, but which was peculiarly adapted to the investigation of 
a new plan of government. 176 

176 One of the most perfect exhibitions in recent times of powers kin- 
dred with those of Grayson was the speech delivered by Governor 
Tazewell in the House of Delegates on the Convention bill of 1816. 
I heard in conversation with Mr. Tazewell the general outline of his 



VIRGINIA CONVENTION OF 1788. 201 

His powers of humor, wit, sarcasm, ridicule, prolonged and 
sustained by argument and declamation, were unrivalled. The 
speech which he now rose to deliver abounds in passages of 
humor and sarcasm, not put forth to excite mirth, but to ad- 
vance his argument, and to annoy his adversaries. Nor did he 
confine himself to those illustrations which, reflected from the 
classics, have a lustre not to be questioned, though sometimes 
hard to perceive, but drew his images from the common life 
around him. When, in proving that the dangers from the neigh- 
boring States, which had been marshalled by the friends of the 
Constitution in dread array as likely to overwhelm Virginia in 
the event of the rejection of that instrument, were imaginary, -he 
ridiculed such apprehensions of alarm, and, turning to South 
Carolina, described the citizens of that gallant State as rushing 
to invade us, mounted, not on the noble Arabian which poetry 
as well as history had clothed with beauty and with terror 
not with the cavalry of civilized nations but upon alligators, 
suddenly summoned from the swamp and bridled and saddled 
for the nonce a cavalry worthy of such a cause that of crush- 
ing a sister Commonwealth his sally was received with roars 

argument twelve years after it was delivered, with a pleasure which I 
have rarely received since from any public effort. The late Philip 
Doddridge, who took a part in the debate, told me that it was not only 
the most extraordinary exhibition of logical power which he had ever 
witnessed in debate, but which he believed was ever delivered in any 
public body in America. There, too, the speech was subjected to the 
misrepresentation of opponents, who fell upon the words " many- 
headed monster," which Mr Tazewell used in animadverting on the 
word k< people," which was contained in the bill, and which he con- 
tended included men, women and children, white, black, and mulatto, 
and every other description and complexion known among men. 
Twenty years afterwards I heard these words, which had been carried 
to the counties and brought back again to Richmond, where they had 
been forgotten, quoted to show that Mr. Tazewell had spoken disre- 
spectfully of the people, of whom he and his large family were a part, 
and whose rights, at a severe pecuniary loss to himself, he had been 
elected without his knowledge to maintain on this very question. To 
have made such an objection in debate would have been to raise loud 
laughter. 

The great speech of Upshur on the basis of representation in the 
Virginia Convention of 1829-30, was another splendid example of Gray- 
son's mode of debate. 



VIRGINIA CONVENTION OF 1788. 

% 

of laughter from both sides of the House. A Latin scholar, 
skilled in prosody, he ever showed a reluctance to let a slip in a 
quotation pass unreproved ; and when a friend of the Constitu- 
tion, in using the words " spolia opima" made the penult of the 
last word short, Grayson whispered in a tone that reached the 
ear of the orator: " Oplma, if you please"; and when another 
friend of the Constitution sought to derive the word contract 
from con and tracto, Grayson, with a lengthened twirl of the lips, 
trolled out in an undertone that was heard by the learned gentle- 
man in possession of the floor: "Tra-ho" And the laugh in 
this case, as in the preceding, passed like a wave from the spot 
where it was raised gradually to the remote parts of the house. 
He was not surprised, he is reported to have said, that men who 
were, in his opinion, about to vote away the freedom of a living 
people, should take such liberties with a dead tongue. 

The physical qualities of Grayson were quite as distinctive as 
the intellectual. He was considered, as we have already said, 
the handsomest man in the Convention. He had a most comely 
and imposing person his stature exceeded six feet, and though 
his weight exceeded two hundred and fifty pounds, such was the 
symmetry of his figure, the beholder was struck more with its 
height than its magnitude. His head was very large, but its 
outline was good ; his forehead unusually broad and high, and 
in its resemblance to that of Chalmer's indicating a predilection 
for the abstract sciences ; his eyes were black and deep-seated ; 
his nose large and curved ; his lips well formed, disclosing teeth 
white and regular, which retained their beauty to the last ; a fine 
complexion gave animation to the whole. When he was walk- 
ing, his head leaned slightly forward as if he were lost in thought. 
Lest our sketch may seem to be overdrawn, although no person 
who, as an adult, had known Grayson, with one exception, is 
now alive, we have fortunately a singular proof of the fidelity of 
the portrait which we have delineated. When Grayson had lain 
forty -six years in his coffin its lid was lifted, and there his majestic 
form lay as if it had been recently wrapped in the shroud. The 
face was uncovered by the hand of a descendant, and its noble 
features, which had frowned in battle, which had sparkled in 
debate, and on which the eyes long closed of tender affection 
had loved to dwell, were fresh and full. The towering forehead ; 
the long black hair the growth of the grave ; the black eye, 



VIRGINIA CONVENTION OF 1788. 203 

N. 

glazed and slightly sunken, yet eloquent of its ancient fire ; the 
large Roman nose ; the finely wrought lip ; the perfect teeth, 
which bespoke a temperate life ended too soon ; the wide 
expanded chest ; the long and sinewy limbs terminating in those 
small and delicate hands that rested on his breast, and in those 
small feet that had been motionless so long ; the grand and 
graceful outline of the form as it was when laid away to its final 
rest, told touchingly with what faithfulness tradition had retained 
the image of the beloved original. 177 

The address of Grayson was winning and courteous. His 
manners, formed abroad at a time when the young American 
was apt to be taken for a young savage, and improved by a 
large experience with the world, were highly polished. He was 



177 One of the descendants of Colonel Grayson represents him as over 
six feet, another quite six, and another, a lady who in her childhood 
knew him, as very tall. A friend, now dead, who knew Grayson, 
thought him over six feet. 

I derive the particulars of the appearance of Colonel Grayson in his 
coffin from Robert Grayson Carter, Esq , of Grayson, Carter county, 
Kentucky, who uncovered the face of Grayson, and examined the 
body. He particularly alludes to the size of the head, and of the 
smallness of hands and feet, the hair, the features, and the teeth. I am 
indebted to Mr. Carter for his efforts to obtain information respecting 
his illustrious grandfather. The father of Colonel Grayson was named 
Benjamin ; was, it is believed by some of my correspondents, a Scotch- 
man, and married a lady whose maiden name was Monroe; and it is 
thought that Grayson and James Monroe were first or second cousins. 
Grayson himself married Eleanor, sister of General William Smallwood. 

[It is a suggestive coincidence that the Christian name of the father of 
James Monroe and of a brother of Colonel Grayson was Spence in 
such use an uncommon name. ED.] 

I shall trace the career of Grayson more particularly when I come to 
speak of the members at large. Grayson was buried in the vault of 
Belle Air, then the seat of the Rev. Spence Grayson, near Dumfries. 

I must also acknowledge my indebtedness to John M. Orr, Esq., 
another connection of Grayson's, for an interesting letter about Colonel 
Grayson. Mr. Orr thinks that the Graysons are English, and were 
residents of the Colony for several generations before the Revolution. 
He also says that Grayson was educated at Edinburg ; but as Mr. P. G. 
Washington, whose grandfather, Spence Grayson. was a brother of 
Colonel William, and was abroad with him at the same time, may be 
supposed to have heard or learned from authentic sources where his 
grandfather was educated, and affirms that it was at Oxford, I lean to 
his side of the question. 



204 VIRGINIA CONVENTION OF 1788. 

'^^ 

fond of society, and whether he appeared at the fireside of the 
man of one hogshead, 178 or in the aristocratic circles of the Col- 
ony, he was ever a welcome and honored guest. His conversa- 
tion, playful, sparkling, or profound, as the time or topic re- 
quired, or the mood prompted, was not only admired by his con- 
temporaries, but has left its impress upon our own times; and it 
was in conversation that he appeared with a lustre hardly inferior 
to that which adorned his forensic disputations. His humor was 
inexhaustible, and the young and the old, grave statesmen as 
well as young men who are ever ready to show their charity by 
honoring the jests of middle-aged people, were alike captivated 
by it. We are told by a friend who, in 1786, walked from the 
hall of Congress, then sitting in New York, in company with 
Grayson, Colonel Edward Carrington, and Judge St. George 
Tucker on their way to their boarding-house, that Grayson became 
lively, and threw out jests with such an effect that the gentlemen 
were so convulsed with laughter as hardly to be able to walk 
erect through the streets, he quite serious the while, gravitate 
incolumi And in an humbler sphere his loving nature and 
pleasant talk were so relished by the family of a worthy woman 
at whose house, in visiting his mills on Opequon creek, he usually 
stopped, that, when his death was announced, all of them burst 
into tears. 180 Withal there was a dignity about him which the 
ablest and the bravest men would have been the last to trench 
upon. 



178 In early times it was common to designate a planter according to 
the number of hogsheads of tobacco he made annually. 

179 Carrington Memoranda. 

180 1 have received from Robert Grayson Carter, Esq., a reminiscence 
of Colonel Grayson, taken from the lips of the lady mentioned in the 
text, who was living last December (1857) in Lewis county, Kentucky, 
at the age of ninety-three. Her faculties were all nearly entire. Her 
memory was perfect, and she described Colonel Grayson as if she had 
seen him the day before. She says that in 1784 his hair was slightly 
gray, though originally very black ; that he was a very large man; that 
"he had a bright and intelligent black eye, and that he was altogether 
the handsomest man she ever laid her eyes upon " ; that he used fre- 
quently to stay at her house on his way to his mills at Opequon, and 
that he said he was so pleased to find at her house a bed so much 
better than any he could get at the mills. She thought him in 1784 
betw.een fifty and sixty ; that he was universally beloved, and that her 
brother, Captain William Helm, thought "that there was no such man 



VIRGINIA CONVENTION OF 1788. 205 

We have spoken of his mode of debate ; and it is fit that we 
should say something of his manner of speaking. It should 
seem improbable that a man of good address, of rare reasoning 
powers, and of undaunted spirit, should be destitute of the ordi- 
nary qualities of an orator, unless he had some impediment in 
his speech, or lost all self-possession the moment he stood upon 
his feet. Such was not the case with Grayson. It was his self- 
possession, acquired partly by his speeches in the English clubs 
and at the bar, partly by his early essays in the House of Bur- 
gesses, 181 but mainly by his service in the Congress of the Con- 
federation, which, as it was a small body, and consisted of the 
first men of the Union, exacted from those who addressed it a 
severity of manner as well as of matter, and a degree of prepara- 
tion and research rarely exhibited in popular assemblies, and 
which was one of the best schools of our early statesmen, 182 and 



as Colonel Grayson for every faculty and virtue that could adorn a 
human being." She says that 4< he was remarkably temperate in his 
diet took for breakfast coffee, butter and toast ; for dinner, a slice of 
mutton or a piece of chicken, with vegetables, and no dessert ; and 
that he would take a cup of tea afterwards, but never ate supper." 
She says that "his portly form and dignified appearance filled her with 
such reverence that but for his agreeable and bland manners she would 
have felt restraint in his presence, but that she was entirely relieved by 
the affectionate manner in which he spoke and acted." Mr. Carter 
rode through a storm to secure the information of this venerable lady. 
I ought to add that the name of the lady is Mrs. Lucy Bragg, and that 
she further says, that Colonel Grayson always rode to her house in his 
carriage, attended by his negro man, Punch, who used to rub his mas- 
ter's feet, who reclined on the bed. Grayson had the gout, and 
ultimately died of it. 

181 Several of my correspondents mention his having been a member 
of the House of Burgesses ; but I cannot find his name in the Journals. 
This absence of his name on the face of the Journals is not conclusive 
evidence of his not having been a member, as there is no list of mem- 
bers prefixed to the Journals, and the ayes and noes were not taken 
until after the formation of the Constitution of the State. The only 
means of ascertaining the membership of individuals must be found 
in the annual almanacs, which I do not possess, and know not where 
to seek. 

182 Mr. Jefferson expressed the opinion that if Mr. Madison had not 
been a member of a small body like the old Congress, his modesty 
would have prevented him from engaging in debate. 





206 VIRGINIA CONVENTION OF 1788. 

not a little from his mode of argumentation, which, anticipating 
from the first all possible objections to the case in hand, made 
him eager to court them from the lips of an adversary ; it was 
this self-possession that appeared to the observer not the least 
characteristic of. his manner. He had also studied oratory as a*i 
art, at a time when Wedderburne, though in full practice at the 
bar, deemed it not unworthy to become a pupil of Sheridan, and 
in listening to the eloquence of Dunning, of Townsend, of Burke, 
of Mansfield, and of the elder Pitt, he had formed conceptions 
of the art which it was the tendency as well as the ambition of 
his life to develop and to practice. His person, as has been said 
already, was commanding. His voice was clear, powerful, and 
under perfect control, and had been disciplined with care, and 
in sarcastic declamation its tones were said to be terrible ; but it 
had not the universal compass of Henry's, nor those musical 
intonations which made the voice of Innes grateful to the most 
wearied ear. He spoke at times with great animation ; but his 
stern taste, as well as his peculiar range of argument, in some 
measure interdicted much action, in the mechanical sense of the 
word. But it was only when the hour of reflection came that 
such thoughts occurred to the hearer, who was borne along, 
while the orator was wrapped in his subject, unresistingly by the 
ever-abounding, ever-varying and transparent current of his 
speech. Yet it is rather in the highest rank of debaters than in 
the highest rank of orators we should place the name of Grayson. 

In his present position on the floor, when he rose to make the 
only one of his great speeches that have come down to us, he 
had an advantage which is necessary to a speaker on a great 
occasion, and of which he knew how to avail himself he well 
knew his opponents. Nicholas, Randolph, Lee, and Marshall 
were his juniors in the army, and his juniors in years. With 
two of them he had served in Congress, and he had encountered 
them all at the bar. He began his speech with an apology for 
the desultory way in which, from the previous debate, he would 
be compelled to treat his subject, and with a declaration of his 
confidence in the patriotism and worth of the members of the 
General Convention who were members of the House. He 
hoped that what he designed to say might not be misapplied. 
He would make no allusions to any gentleman whatever. 

He admitted the defects of the Confederation, but he appre- 



VIRGINIA CONVENTION OF 1788. 207 

bended they could not be removed, because they flowed from 
the nature of that government and from the fact that particular 
interests were preferred to the interests of the whole. He con- 
tended that the particular disorders of Virginia ought not to be 
attributed to that source, as they were equally beyond the* reach 
of the Federal Government and of the plan upon the table ; that 
the present condition of Virginia was a vast improvement upon 
the Colonial system ; that the Judiciary was certainly as rapid as 
under the royal government, where a case had been thirty-one 
years on the docket. He then detailed the state of public feeling 
on the subject of a change in the Federal Government before the 
meeting of the General Convention, and showed that in Virginia 
alone was there any dissatisfaction. He then reviewed, with a 
full knowledge of the subject, the dangers alleged to exist from the 
hostility of foreign powers and of the neighboring States, show- 
ing that they were wholly imaginary. " As for our sister States,' ' 
he said, " disunion is impossible. The Eastern States hold the 
fisheries, which are their cornfields, by a hair. They have a 
dispute with the British government about their rights at this 
moment. Is not a general and strong government necessary for 
their interest? If ever nations had any inducements to peace, 
the Eastern States now have. New York and Pennsylvania are 
looking anxiously forward to the fur trade. How can they 
obtain it but by union? How are the little States inclined? 
They are not likely to disunite. Their weakness will prevent 
them from quarreling. Little men are seldom fond of quarrel- 
ing among giants. Is there not a strong inducement to union, 
while the British are on one side and the Spaniards on the other? 
Thank heaven, we have a Carthage of our own. But we are 
told that if we do not embrace the present moment to adopt a 
system which we believe to be fatal to our liberties, we are lost 
forever. Is there no difference between productive States and 
carrying States? If we hold out, will not the tobacco trade 
enable us to make terms with the carrying States ? Is there 
nothing in a similarity of laws, religion, language and manners ? 
Do not these, and the intercourse and intermarriages between 
people of the different States invite them in the strongest man- 
ner to union ? 

" But what would I do on the present occasion to remedy the 
defects of the present Confederation ? There are two opinions 



' 

208 VIRGINIA CONVENTION OF 1788. 

prevailing in the world ; the one that mankind can only be gov- 
erned by force ; the other that they are capable of freedom and 
a good government. Under the supposition that mankind can 
govern themselves, I would recommend that the present Con- 
federation be amended. Give Congress the regulation of com- 
merce. Infuse new spirit and strength into the State govern- 
ments ; for when the component parts are strong, it will give 
energy to the government, although it be otherwise weak. This 
may be proved by the union at Utrecht. Apportion the public 
debts in such a manner as to throw the unpopular ones on the 
back lands. Call only for requisitions for the foreign interest, 
and aid them by loans. Keep on so until the American charac- 
ter be marked with some certain features. We are yet too 
young to know what we are fit for. The continual migration of 
people from Europe, and the settlement of new countries on our 
western frontiers, are strong arguments against making new ex- 
periments now in government. When these things are removed, 
we can with greater prospect of success devise changes. We 
ought to consider, as Montesquieu says, whether the construction 
oi a government be suitable to the genius and disposition of the 
people, as well as a variety of other circumstances. 

" But, if this position be not true, and men can only be gov- 
erned by force, then be as gentle as possible. What then would 
I do ? I would not take the British monarchy for my model. 
We have not materials for such a government in our country, 
although I will be bold to say, that it is one of the governments 
in the world by which liberty and property are best secured. 
But I would adopt the following government. I would have a 
president for life, choosing his successor at the same time ; a 
Senate for life, with the powers of the House of Lords, and a 
triennial House of Representatives. If, sir, if we are to be con- 
solidated AT ALL, we ought to be fully represented, and governed 
with sufficient energy, according to numbers in both Houses. 

"Will this new plan accomplish our purposes? Will the 
liberty and property of the country be secure under it ? It is a 
government founded on the principles of monarchy with three 
estates. Is it like the model of Tacitus or Montesquieu ? Are 
there checks on it like the British monarchy ? There is an ex- 
ecutive fettered in some parts, and as unlimited in others as a 
Roman Dictator. Look at the executive. Contrary to the 



VIRGINIA CONVENTION OF 1788. 209 

opinion of all the best writers, it is blended with the legislative. 
We have asked for water, and they have given us a stone. I am 
willing to give the government the regulation of trade. It will 
be serviceable in regulating the trade between the States. But I 
believe it will not be attended with the advantages generally 
expected." 

He then spoke of the inexpediency of giving up the power of 
taxation. "As to direct taxation," he said, "give up this, and 
you give up everything, as it is the highest act of sovereignty. 
Surrender this inestimable jewel and -you throw a pearl away 
richer than all your tribe." When he had proved that the ex- 
ercise of this power would result in a conflict between the Gen- 
eral and the State Government, in opposition to the opinion 
expressed by Pendleton, and established his position by examples, 
and had critically surveyed the construction of the new House of 
Representatives, which he contended was defective, he concluded: 
" But my greatest objection is, that in its operation it will be 
found unequally grievous and oppressive. If it have any efficacy 
at all, it must be by a faction a faction of one part of the Union 
against the other. I think that it has a great natural imbecility 
within itself too weak for a consolidated, and too strong for a 
confederate government. But if it be called into action by a 
combination of seven States, it will be terrible indeed. We need 
to be at no loss to determine how this combination will be 
formed. There is a great difference of circumstances between 
the States. The interest of the carrying States is strikingly different 
from that of the productive States. I mean not to give offence 
to any part of America, but mankind are governed by interest. 
The carrying States will assuredly unite, and our situation then 
will be wretched indeed. Our commodities will be transported 
on their own terms, and every measure will have for its object 
their particular interest. Let ill-fated Ireland be ever present 
to our view. We ought to be wise enough to guard against the 
abuse of such a government. Republics, in fact, oppress more 
than monarchies. If we advert to the page of history, we will 
find this disposition too often manifested in republican govern- 
ments. The Romans in ancient, and the Dutch in modern times, 
oppressed their provinces in a remarkable degree. I hope that 
my fears are groundless ; but I believe it as I do my creed, that 
this Government will operate as a faction of seven States to 

14 



210 VIRGINIA CONVENTION OF 1788. 

4^ 

oppress the rest of the Union. But it may be said that we are 
represented, and cannot, therefore, be injured a poor represen- 
tation it will be. The British would have been glad to take 
America into the union, like the Scotch, by giving us a small 
representation. The Irish may be indulged with the same 
favor by asking for it. Will that lessen our misfortunes ? A 
small representation gives a pretense to injure and destroy. 
But, sir, the Scotch union is introduced by an honorable gentle- 
man, as an argument in favor of adoption. Would he wish his 
country to be on the same foundation as Scotland ? She has but 
forty-five members in the House of Commons, and sixteen in the 
House of Lords. They go up regularly in order to be bribed. 
The smallness of their number puts it out of their power to carry 
any measure. And this unhappy nation exhibits, perhaps, the 
only instance in the world where corruption becomes a virtue. 
I devoutly pray that this description of Scotland may not be 
picturesque of the Southern States in three years from this time. 
The committee being tired, as well as myself, I will take another 
time to give my opinion more fully on this great and important 
subject." 183 



183 Grayson was born in Prince William county, and died at Dumfries, 
Va., March 12, 1790. He married Eleanor Smallwood, sister of General 
and Governor Wm. Smallwood, of Maryland. He left issue : i George 
W., of Fauquier county, died before 1832 (leaving issue : i. Frances mar- 
ried Richard H. Foote; 2. George W.; 3, William); ii. Robert H. married 

(and left issue : r. Wm. P. ; 2. Hebe C. married William P. Smith ; 3. 

Ellen S); iii. Hebe Smallwood; iv. Alfred W. died before 1829; mar- 
ried (and left issue : John Breckinridge, Brigadier-General Confederate 
States Army, from Kentucky) ; v. William J., statesman, born at Beau- 
fort, S. C., Nov., 1788, died in Newberne, N. C., Odober4, 1863, was grad- 
uated at the College of South Carolina in 1809, and bred to the legal 
profession. Entering on the practice of law at Beaufort he became a 
Commissioner of Equity of South Carolina, a member of the State 
Legislature in 1813, and Senator in 1831. He opposed the Tariff Act 
of 1831, but was not disposed to push the collision to the extreme of 
civil war. He served in Congress from December 3, 1833, to March 3, 
1837, and in 1841 was appointed Collector of Customs at Charleston, S. 
C. In 1843 he retired to his plantation. During the secession agita- 
tion of 1850 he published a letter to Governor Seabrook deprecating 
disunion, and pointing out the evils that would follow. He was a fre- 
quent contributor to the Southern Review, and also published " The 
Hireling and Slave," a poem (Charleston, S. C, 1854); " Chicora, and 



VIRGINIA CONVENTION OF 1788. 211 

Monroe, seconded by Henry, moved that the committee should 
rise, that Grayson should have an opportunity of continuing his 
argument next day ; and the House adjourned. Its session had 
been protracted. The heat had been intense, but it was a day 
which posterity will recall with pride ; for in its course Madison, 
Mason, Lee, and Grayson made such speeches as have been 
rarely heard in a single day in any deliberative assembly. 

On Thursday, the twelfth of June, as soon as the House went 
into committee, Wythe in the chair, and the first and sec- 
ond sections of the Constitution still nominally the order of 
the day, Grayson resumed his speech. His first few sentences 
told that he felt a greater freedom than even the most adroit 
debaters are apt to feel in addressing an august assembly for the 
first time, which had been listening to a succession of able men, 
and which was destined to unmake as well as make reputations. 184 

" I asserted yesterday," he said, " that there were two opinions 
in the world the one that mankind were capable of governing 
themselves, the other that it required actual force to govern 
them. On the principle that the first position was true, and 
which is consonant to the rights of humanity, the House will 
recollect that it was my opinion to amend the present Confed- 
eration, and to infuse a new portion of health and strength into 
the State Governments, to apportion the public debts in such a 

other Poems"; "The Country," a poem; "The Life of James L. Pet- 
tigru," (New York, 1866), and is supposed to have been the author of 
a narrative poem entitled " Marion." Colonel William Grayson, by his 
will, emancipated all negroes owned by him who were born after the 
Declaration of Independence. The executors of his will were: Benj. 
Orr Grayson, Robert Hanson Harrison, and it was witnessed by Spence 
Grayson. Benjamin Orr Grayson married Miss Bronaugh. He was the 
second of Armistead Thomson Mason in the fatal duel of the latter 
with his cousin, John Mason McCarty. ED. 

184 This fear of the House, if I may so call it, was plainly perceptible 
in the manner of those who came forth early in the debate on the basis 
of representation in the Convention of 1829-30. There was a tremu- 
lousness even in Randolph in his first speech. Other men of real 
ability absolutely failed in that debate ; but, as the fear of the House 
wore off, and the debate passed from the basis question into a more 
limited range, the number and the freedom of the speakers were 
quite as great as was desirable, and the same result to a certain extent 
will presently appear in this body. 



212 VIRGINIA CONVENTION OF 1788. 

manner as to throw the unpopular ones on the back lands, to 
divide the rest of the domestic debt among the different States, 
and to call for requisitions only for the interest of the foreign 
debt. If, contrary to this maxim, force is necessary to govern 
men, I then did propose as an alternative, not a monarchy like 
that of Great Britain, but a milder government; one which, 
under the idea of a general corruption of manners and the con- 
sequent necessity of force, should be as gentle as possible. I 
showed, in as strong a manner as I could, some of the principal 
defects in the Constitution. The greatest defect is the opposition 
of the component parts to the interest of the whole. For let 
gentlemen ascribe its defects to as many causes as their imagina- 
tions may suggest, this is the principal and radical one. I urged 
that to remedy the evils which must result from this new gov- 
ernment, a more equal representation in the legislature, and 
proper checks against abuse, were indispensably necessary. I 
do not pretend to propose for your adoption the plan of govern- 
ment which I mentioned as an alternative to a monarchy, in case 
mankind were incapable of governing themselves. I only meant 
that if it were once established that force was necessary to gov- 
ern men, that such a plan would be more eligible for a free peo- 
ple than the introduction of crowned heads and nobles. Having 
premised thus much to obviate misconstruction, I shall proceed 
to the clause before us with this observation, that I prefer a com- 
plete consolidation to a partial one, but a Federal Government to 
either." 

He proceeded to discuss the sections under consideration, and 
declared that the State which gives up the power of taxation has 
nothing more to give. "The people of that State," he said, 
" which suffer any but their own immediate government to inter- 
fere with the sovereign right of taxation are gone forever. Giving 
the right of taxation is giving the right to increase the miseries 
of the people. Is it not a political absurdity to suppose that 
there can be two concurrent legislatures, each possessing the 
supreme power of direct taxation ? If two powers come in con- 
tact, must not the one prevail over the other? Must it not 
strike every man's mind that two unlimited, co-equal, co-ordinate 
authorities over the same objects cannot exist together ? But we 
are told that there is one instance of co-existent powers in cases 
of petty corporations as well here as in other parts of the world/' 



VIRGINIA CONVENTION OF 1788. 213 

He examined this example, and showed that it was wholly inap- 
plicable to two powers possessing each an unlimited right of 
taxation. He then turned to the case of Scotland, which had 
been brought up by the friends of the Constitution as a case in 
point, and showed that it also was inapplicable, as the limit of 
taxation was fixed in the articles of union, which provide that 
when England pays four shillings on the pound, Scotland only 
pays forty-five thousand pounds sterling. He referred to the 
minor jurisdictions in England, the stannary courts and others, 
and showed that they had no application whatever to the case of 
two supreme legislatures in a single country. After showing 
that the judicious exercise of such a power, according to the 
received maxims of representation, was impracticable, he placed 
his opponents in the dilemma, either of being compelled to with- 
hold this power from the Federal Government, or of surrendering 
the first maxims of representation, that those who lay the taxes 
should bear their proportion in paying them. A tax that might 
with propriety be laid and collected with ease in Delaware, would 
be highly improper in Virginia. The taxes cannot be uniform 
through the States without being oppressive to some. If they 
be not uniform, some of the members will lay taxes, in the pay- 
ment of which they will bear no proportion. The members of 
Delaware may assist in laying taxes on our slaves ; but do they 
return to Virginia ? 

Following closely in the track of Madison's speech, delivered 
the day before, he thus replied to the argument derived from our 
probable position as a neutral power, which had been argued so 
ably by that gentleman : " We are then told," he said, "of the 
armed neutrality of the Empress of Russia, the opposition to it by 
Great Britain, and the acquiescence of other powers. We are 
told that, in order to become the carriers of contending nations, 
it will be necessary to be formidable at sea that we must have a 
fleet in case of a war between Great Britain and France. I think 
that the powers which formed that treaty will be able to support 
it. But, if we were certain that this would not be the case, still 
I think that the profits that would arise from such a transient 
commerce would not compensate for the expense of rendering 
ourselves formidable at sea, or the dangers that would probably 
result from the attempt. To have a fleet in the present limited 
population of America is, in my opinion, impracticable and inex- 



214 VIRGINIA CONVENTION OF 1788. 

pedient. Is America in a situation to have a fleet ? I take it to 
be a rule founded on common sense that manufacturers, as well 
as sailors, proceed from a redundancy of inhabitants. Our 
numbers, compared to our territory, are very small indeed. I 
think, therefore, that all attempts to have a fleet, till our western 
lands are fully settled, are nugatory and vain. How will you 
induce your people to go to sea ? Is it not more agreeable to 
follow agriculture than to encounter the dangers and the hard- 
ships of the ocean ? The same reason will apply, in a great 
degree, to manufacturers. Both are the result of necessity. It 
would, besides, be dangerous to have a fleet in our present weak, 
dispersed, and defenceless situation. The powers of Europe, 
which have West India possessions, would be alarmed at any 
extraordinary maritime exertions ; and, knowing the danger of 
our arriving at manhood, would crush us in our infancy. In my 
opinion, the great objects most necessary to be promoted and 
attended to in America are agriculture and population. First, 
take care that you are sufficiently strong by land to guard against 
European partitions. Secure your own house before you attack 
that of another people. I think that the sailors, who could be 
prevailed upon to go to sea, would be a real loss to the commu- 
nity. Neglect of agriculture and loss of labor would be the 
certain consequence of such an irregular policy. I hope that, 
when these objections are thoroughly considered, all ideas of 
having a fleet in our infant situation will be given over. When 
the American character is better known, and the Government 
established on permanent principles when we shall be suffi- 
ciently populous, and our situation secure then come forward 
with a fleet ; not with a small one, but with one sufficient to meet 
any of the maritime powers." 185 

183 These early opinions on the subject of a navy have much interest 
in connection with the controversies that were soon to be waged on 
that topic. Adam Stephen was the first of our politicians to predict 
glory from the establishment of a navy. In a letter to R. H. Lee, 
dated February 3, 1775, he says: " We only want a navy to give law to 
the world, and we have it in our power to get it." John Adams is 
usually considered the father of the navy ; but in his letters he insists 
that "the navy is the child of Jefferson." The resolutions of 1799 
gave it a blast, which was followed by the action of Mr. Jefferson. 
When one of our prominent politicians, near the close of the last cen- 



VfRGINIA CONVENTION OF 1788. 215 

He next adverted to an opinion of Madison on the revenue 
likely to flow from imposts, and as this passage shows the views 
held by two of the first political economists in the Convention on 
the amount of revenue to be expected from the customs, we will 
give it in full : "The honorable gentleman (Madison)," he said, 
" has told us that the impost will be less productive hereafter, on 
account of the increase of population. I shall not controvert 
this principle. When all the lands are settled and we have manu- 
factures sufficient, this may be the case ; but I believe that for 
a very long time this cannot possibly happen. In islands and 
thickly-settled countries, where they have manufactures, the 
principle will hold good, but will not apply in any degree to our 
country. I apprehend that among us, as the people in the lower 
country find themselves straightened, they will remove to the 
frontiers, which will, for a considerable period, prevent the lower 
country from being very populous, or having recourse to manu- 
factures. I cannot, therefore, but conclude that the amount of 
imposts will continue to increase, at least for a great many 
years." 186 

He next came to the relief of Henry and Mason in sustaining 
the inferences which they had drawn from Holland, and went 
into an explanation of the state of parties in that country the 
party of the Prince of Orange and the Louvestein faction Eng- 
land taking the side of one and France of the other; and main- 



tury, was charged with having said that the union ought to be dissolved, 
he denied that he made the remark, except with the qualification that 
" in the contingency of the Federal Government building three seventy- 
fours." Though now long dead, he lived to read the bulletins of Hull, 
Decatur, Stewart, Perry, McDonough, and their gallant compatriots. 

186 It is not uninstructive to recur to the opinions held by our early 
statesmen on the rate of duties to be laid upon imports. If the States 
had assented to the plan of vesting in the old Confederation the right 
to levy five per cent, upon imports (which Virginia assented to), in all 
human probability the Federal Constitution would not have been called 
into existence. In the course of his present speech Grayson expressed 
the opinion that two and a half per cent, would put more money into 
the treasury than five, as the high rate would encourage smuggling. 
As late as 1792, Pendleton, in his letter on a Federal tariff, thought that 
Jive per cent, was as high as the Federal Government ought to go. It 
is very plain that in framing a government the wisest men sometimes 
see but a very little way ahead. 



216 VIRGINIA CONVENTION OF 1788. 

% 

tained that the difficulties of the Dutch were produced by that 
unnatural contest, and were not the result of the particular con- 
struction of their federal alliance. As for the slowness with 
which our own requisitions were paid, will any patriot blame 
a non-compliance during the war, when our ports were block- 
aded, when all means of getting money were destroyed, when 
our country was overrun by the enemy, when almost every arti- 
cle which the farmer could raise was seized to sustain the armies 
in the field ? And since the war the flourishing States have very 
fairly complied with requisitions. Others have delayed to pay 
from inability to make the payment. Massachusetts attempted 
to correct the nature of things by extracting from the people 
more than they were able to part with ; and what was the result ? 
A revolution that shook that State to its centre ; a revolution 
from which she was rescued by that abhorred and contemned 
system which gentlemen are anxious to supersede ; for it was a 
vote of Congress for fifteen hundred men, which, aided by the 
executors of the State, put down all opposition, and restored 
the public tranquility. 

He adverted to an argument which Pendleton had urged as a 
means of relief against maladministration in the Federal Govern- 
ment : ' ' We are told,' ' he said, " that Conventions gave and Con- 
ventions can take away. This observation does not appear to 
me to be well-founded. It is not so easy to dissolve a government 
like that upon the table. Its dissolution may be prevented by a 
trifling minority of the people of America. The consent of so 
many States is necessary to obtain amendments, that I fear they 
will with great difficulty be obtained." He scanned the clause 
of the Constitution which sets apart the ten miles square. " I 
would not deny," he said, " the propriety of vesting the Govern- 
ment with exclusive jurisdiction over this territory, were it prop- 
erly guarded. Perhaps I am mistaken ; but it occurs to me that 
Congress may give exclusive privileges to merchants residing in 
the ten miles square, and that the same exclusive power of legis- 
lation will enable them to grant similar privileges to merchants 
within the strongholds of the State. Such results are not with- 
out precedent. Else, whence have issued the Hanse Towns, 
Cinque Ports, and other places in Europe, which have peculiar 
privileges in commerce as well as in other matters ? I do not 
offer this sentiment as an opinion, but a conjecture ; and in this 



VIRGINIA CONVENTION OF 1788. 217 

doubtful agitation of mind on a point of such infinite magnitude, 
I only ask for information from the framers of the Constitution 
whose superior opportunities must have furnished them with 
more ample lights on the subject than I am possessed of." 187 He 
discussed the question of the relative safety of the right of navi- 
gating the Mississippi under the old and the new system ; and 
maintained that under the Confederation nine States were neces- 
sary to cede that right away, but that under the new five States 
only were required for the purpose, as ten members were two- 
thirds of a quorum in the Senate, and five States send ten mem- 
bers. 188 "In my opinion," he said, "the power of making 
treaties by which the territorial rights of the States may be 
essentially affected, ought to be guarded against every possi- 
bility of abuse; and the precarious situation to which those 
rights will be exposed is one reason with me, among a number 
of others, for voting against the adoption of this Constitution." 1 

Tradition has represented this speech as one of the most argu- 
mentative, most eloquent, and most effective delivered during the 
session ; and from the meagre skeleton of it that has come down 
to us, we can easily see that it deserved the highest praise. It 
is said that it gave a new impulse to the opposition, and its influ- 
ence may be clearly traced in the subsequent discussions. 

As soon as Grayson took his seat, Pendleton, who, when the 
House was in committee, always sat near the chair, caught the 
eye of Wythe, and, placed upon his crutches, proceeded to deliver 
the most elaborate of all the speeches which he made upon the 
floor. 190 

187 In his vaticinations he came very near embracing the case of the 
Cohens v. the State of Virginia, WH EATON, Vol. . 

,188 The opposition of New England to the acquisition of Louisiana is 
an instance within the range of his fears. 

189 I may say here that I do not refer to the page in Robertson's De- 
bates, partly because the book, which has been out of print for thirty 
years, may be reprinted ere long in a different form, when my refer- 
ences would lead astray ; but mainly because I record each day's ses- 
sion and the order of the speakers on the floor. Elliotts Debates are 
also out of print, and their paging does not correspond with Robertson's. 
If there had been a new edition of the debates, I would have cited the 
page for the convenience of the student. 

190 It was interesting to behold the eagerness of the members on both 
sides of the House in their endeavors to assist Pendleton in his efforts 



218 VIRGINIA CONVENTION OF 1788. 



He began by brushing away the driftwood which had been 
floating on the stream of debate ; and which defiled the face of 
the waters. The venerable speaker had not relished the laugh 
which Henry had raised by ridiculing his scheme of calling a 
Convention to withdraw the powers of a Government, the presi- 
dent of which, at the head of a well-equipped and devoted 
army, was marching against the people of a State which had no 
arms in its possession, and he followed Henry in the course of 
his speech. He regretted that such expression's as those which 
likened the people to a HERD had been used, and he wished the 
gentleman (Henry) had felt himself at liberty to let it pass. 
" We are assembled by the people," he said, " to contemplate in 
the calm lights of mild philosophy what government is best cal- 
culated to promote their happiness and secure their liberty. 
We should not criticize harshly the expressions which may es- 
cape in the effusions of honest zeal. On the subject of govern- 
ment the worthy member (Henry) and myself differ on the 
threshold. I think government necessary to protect liberty. 
He supposes the American spirit all-sufficient for the purpose. 
Do Montesquieu, Locke, and Sidney agree with the gentleman ? 
They have presented us with no such idea. They denounce 
cruel and excessive punishments, but they recommend that the 
ligaments of government should be firmer and the execution of 
the laws more strict in a republic than in a monarchy. Was I 
not then correct in my inference that such a government and 
liberty were friends and allies, and that their common enemy 
was faction, turbulence and violence ? A republican government 
is the nursery of science. It turns the bent of it to eloquence as 
a qualification for the representative character, which is, as it 
ought to be, the road to our public offices. I differ from the 
gentleman in another respect. He professes himself an advo- 
cate for the middle and lower classes of men. I profess to be 
a friend to the equal liberty of all men from the palace to the 
cottage, without any other distinction than between good and 
bad men." He then referred to an expression which Mason had 
quoted from a friend of the Constitution. " Why introduce 

to rise. He took a seat near the chair for the convenience of ascend- 
ing and descending from it at the beginning and at the end of each 
day's session. 



VIRGINIA CONVENTION OF 1788. 219 

such an expression as well-born ? None such are to be found in 
the paper on your table. I consider every man well-born who ^ 
comes into the world with an intelligent mind, and with all his 
parts perfect. Whether a man is great or small, he is equally 
dear to me. I wish for a regular government for the protection 
of the honest and industrious planter and farmer. I am old 
enough to have seen great changes in society. I have often 
known those who commenced life without any other stock than ( 
industry and economy attain to opulence and wealth. This 
could only happen in a regular government. The true princi- 
ple of republicanism, and the greatest security of liberty, is reg- 
ular government. What become of the passions of men when 
they enter society? Do they leave them? No ; they bring 
them with them, and their passions will overturn your govern- 
ment without an adequate check." He recurred to the use of 
the word " illumined " by Henry, and charged him with incon- 
sistency in its use. " The gentleman has made a distinction 
between the illumined and the ignorant. I have heard else- * 
where with pleasure the worthy gentleman expatiate on the 
advantages of learning, among other things as friendly to liberty. 
I have seen in our code of laws the public purse applied to cher- 
ish private seminaries. This is not strictly just; but with me 
the end sanctified the means, and I was satisfied. 191 But did we 
thus encourage learning to set up those who attained its bene- 
fits as butts of invidious distinction? Surely, the worthy mem- 
ber on reflection will disavow the idea. Am I still suspected of 
a want of attachment to my fellow-citizens, whom the gentleman 
calls peasants and cottagers ? Let me rescue them from the 
ignominy to which he consigns them. He classes them with the 
Swiss, who are born and sold as mercenaries to the highest bid- 
der; with the people of the Netherlands, who do not possess 
that distinguished badge of freedom, the right of suffrage; and 
with the British, who have to a small extent the right of suffrage, 
but who sell it for a mess of pottage. Are these people to be 
compared to our worthy planters and farmers who draw food 



191 This is a hit at Henry, but I know not to what it refers, unless to 
Hampden-Sidney, of which Henry was one of the trustees, or to Ques- 
nay, the builder of the first Richmond academy, whom Henry be- 
friended. 



220 VIRGINIA CONVENTION OF 1788. 

and raiment, and even wealth, from the inexhaustible stores 
which a bountiful Creator has placed beneath their feet ?" 

He maintained that the happiness and safety of the people 
were the objects of the plan under consideration, and they were, 
therefore, regarded by it as the source of power. But, as the 
people cannot act in a body, they must act through their repre- 
sentatives ; and he showed that a representative government was 
the only true and safe mode of administering the affairs of a 
people ; that, if the Confederation had rested on a popular basis, 
we should have found that peace and happiness which we are 
now in quest of. In the State Constitution you commit the 
sword to the executive and the purse to the legislature, and 
everything else without a limitation. In both cases the repre- 
sentative principle is preserved, and you are safe. Legislatures 
may sometimes do wrong. They have done wrong. Here his 
voice fell to a low tone, and then became inaudible. His physical 
suffering had for a moment repressed the faculties of his fine 
intellect. It was a scene that appealed to the sensibilities of all 
present. It was the first time that voice, which for the third of 
a century had been the delight of friends and terror of foes, ever 
faltered in debate. When he rallied, he was understood to say 
that his brethren of the judiciary felt great uneasiness in their 
minds to violate the Constitution by such a law. 1Pa They had 
prevented the operation of some unconstitutional acts. Still, 
preserve the representative principle in your government, and you 
are safe. He said he had made his remarks as introductory to the 
consideration of the paper on the table. " I conceive," he said, 
" that in those respects, where our State Constitution has not been 
disapproved of, objections will not apply against that on your 
table. In forming our State Constitution we looked only to our 
local circumstances ; but in forming the plan under consideration 
we must look to our connection with the neighboring States. 



192 He had just mentioned the case of Philips when he ceased to be 
heard. If in continuation he referred to that case, which I hardly think 
is probable, it is one of the most singular instances on record of indi- 
viduals imagining feelings which they never felt ; for it is unquestionable 
that Philips, in company witji four or five others, was indicted for 
highway robbery and condemned, after a fair trial, by the ordinary laws 
of the land, and not by attainder. 



VIRGINIA CONVENTION OF 1788. 221 

We have seen the advantages and blessings of the union. God 
grant we may never see the disadvantages of disunion !" 

On the subject of direct taxation, he said that "if it was 
necessary for our interests to form an union, then it was necessary 
to cede adequate powers to attain the end in view. We must 
delegate the powers appropriate to the end. And to whom do 
we delegate those powers ? To our own representatives. Why 
should we fear more from our representatives there than from our 
representatives here ? But a gentleman (Monroe) has said that 
the power of direct taxation is unnecessary, because the back 
lands and the impost will be sufficient to answer all Federal pur- 
poses. What, then, are we disputing about ? Does the gentleman 
think that Congress will lay direct taxes if other funds are suffi- 
cient ? It will remain* a harmless power on paper, and do no 
injury. If it should be necessary, will gentlemen run the risk of 
the union by withholding it?" When he had rescued the sub- 
ject of requisitions and taxation from the misrepresentations 
which he alleged had been made in the committee, re-established 
his position respecting the probable harmony of the two judi- 
ciary systems, and showed that it was the interest of the General 
Government to strengthen the government of the States, he dis- 
cussed the Mississippi question, then passed to the judiciary, and 
ended with an expression of his opinion, which he sustained by 
arguments in favor of subsequent amendments. 

There was a short intermission while the friends of Pendleton 
were aiding him to resume his seat, and were congratulating him 
on his speech. It was remarked that some of his opponents 
cordially greeted the old man eloquent, and that others gave a 
silent pressure of the hand, which spoke not less sensibly than 
words. In fact, his speech, apart from the speaker, was a really 
fine effort. The rebukes which he dealt to his opponents were 
galling, his points were well-made, the turning of the argument 
of Monroe against his own party was adroit, and the beautiful 
exposition of the theory of a popular representative system in 
averting misrule and in preserving the public liberty in the long 
run intact, and of the defects of the Confederation as resulting 
from the absence of this principle in that instrument, was inge- 
nious and happy. But when we add to the intrinsic worth of the 
speech the picture of the venerable old man, in whose person 
the infirmity of an irreparable accident was added to the infirmi- 



222 VIRGINIA CONVENTION OF 1788. 

ties of age, his high authority, which imparted to every word 
that he uttered an almost judicial dignity, and his still higher 
spirit beneath which his physical powers sank, the occasion must 
have excited uncommon interest. Still there were parts of his 
speech which evinced that the old debater had not forgot his 
ways. His evident misrepresentation of the argument of Henry 
in more than one instance, his ungenerous reflection upon that 
individual for his liberality in lending a helping hand to our 
infant literary institutions, and, perhaps, his imagined sorrow at 
an event that never occurred, indicated that personal feelings 
had mingled with political, and that the man was not wholly lost 
in the sage. 

Madison rose to reply to Grayson. As Grayson had pro- 
pounded a dilemma for the reflection of the friends of the 
Constitution, Madison was resolved to return the compliment. 
The dilemma of Grayson was that, on their own admission, the 
advocates of the new plan must either admit the impracticability 
of laying uniform taxes throughout the States, or surrender the 
great principle on which the doctrine of representation rests, 
that those who lay the taxes should pay them. " The honorable 
gentleman over the way," said Madison, "set forth that by 
giving up the power of taxation we should give up everything, 
and still insists on requisitions being made on the States ; and 
that then, if they be not complied with, Congress shall lay direct 
taxes by way of penalty. Let us consider the dilemma which 
arises from this doctrine. Either requisitions will be efficacious, 
or they will not. If they will be efficacious, then I say, sir, we 
give up everything as much as by direct taxation. The same 
amount will be paid by the people as by direct taxes. But if 
they be not efficacious, where is the advantage of this plan ? In 
what respect will it relieve us from the inconveniencies which we 
have experienced from requisitions ? The power of laying direct 
taxes by the General Government is supposed by the honorable 
gentleman to be chimerical and impracticable. What is the con- 
sequence of the alternative he proposes ? We are to rely upon 
this power to be ultimately used as a penalty to compel the 
States to comply. If it be chimerical and impracticable in the 
first instance, it will be equally so when it will be exercised as a 
penalty. The dilemma of Madison has not the force of the 
dilemma propounded by Grayson. Both of its horns have a 



VIRGINIA CONVENTION OF 1788. 223 

rottenness visible on its surface. He assumes a position which he 
was bound to prove, and which is ,incapable of proof, that the 
amount called for by requisition and the amount to be raised by 
direct taxes levied by the Federal Government could be collected 
with the same convenience and economy from the citizens of 
Virginia. In collecting, the amount of a requisition selected its 
own objects and availed itself of a well-established machinery 
for the purpose, merely adding a certain per centum to the annual 
taxes ; while the General Government would be compelled to 
maintain a staff of officers for carrying into effect a contingency 
which may happen this ye^r, but which may not happen in the 
next seven. There was also another consideration in favor of 
the States in the case of requisitions. The Congress, well know- 
ing the difficulty and delicacy, as well as the uncertainty and 
cost, of collecting a given amount by direct taxation over a region 
of wild country as vast as the whole of Europe, would be 
inclined, in order to avoid an unpleasant alternative, to exact as 
little in the first instaace by requisition as would satisfy the public 
exigencies. It was the difficulty of the remedy that induced 
Grayson to propose it as a penalty, and a penalty it would be to 
the States to the extent of the difference between the two modes 
of collection. Nor was the other horn of the dilemma more 
formidable. It is true that the collection of the direct taxes 
might be equally difficult, whether as an original measure or as a 
penalty ; but the argument of Mason was ad hominem, and 
applied to Madison and to all those who contended that direct 
taxes could be easily collected by the Federal Government. 

Madison replied to the arguments urged by Grayson against 
the policy of creating a navy in prospect of the uncertain and 
ephemeral profits to be derived from a neutral trade. "The 
gentleman has supposed," he said, "that my argument with 
respect to a future war between Great Britain and France was 
fallacious. The other nations of Europe have acceded to that 
neutrality, while Great Britain opposed it. We need not suspect 
in case of such a war that we should be suffered to participate 
of the profitable emoluments of the carrying trade, unless we 
were in a respectable situation. Recollect the last war. Was 
there ever a war in which the British nation stood opposed to so 
many nations ? All the belligerent nations of Europe, with 
nearly one-half the British empire, were united against it. Yet 



f 

224 VIRGINIA CONVENTION OF 1788. 



that nation, though defeated and humbled beyond any previous 
example, stood out against this. From her firmness and spirit 
in such desperate circumstances, we may divine what her future 
conduct may be. I did not contend that it was necessary for the 
United States to establish a navy for that sole purpose, but 
instanced it as one reason out of several for rendering ourselves 
respectable. I am no friend to naval or land armaments in time 
of peace ; but if they be necessary, the calamity must be sub- 
mitted to. Weakness will invite insults. A respectable govern- 
ment will not only entitle us to a participation of the advantages 
which are enjoyed by other nations, but will be a security against 
attacks and insults. It is to avoid the calamity of being obliged 
to have large armaments that we should establish this govern- 
ment. Tne best way to avoid danger is to be in a capacity to 
withstand it." 

As a specimen of fair debating, we annex the reply of Madi- 
son to the arguments of Grayson in relation to the probable 
increase of the revenue from imports: ".The imports, we are 
told, will not diminish, because the emigrations to the westward 
will prevent the increase of population. The gentleman has rea- 
soned on this subject justly to a certain degree. I admit that the 
imports will increase till population becomes so great as to com- 
pel us to recur to manufactures. The period cannot be very far 
distant when the unsettled parts of America will be inhabited. 
At the expiration of twenty-five years hence, I conceive that in 
every part of the United States there will be as great a popu- 
lation as there is now in the settled parts. We see already that 
in the most populous parts of the union, and where there is but 
a medium, manufactures are beginning to be established. Where 
this is the case, the amount of importations will begin to dimin- 
ish. Although the imports may even increase during the term of 
twenty-five years, yet, when we are preparing a government for 
perpetuity, we ought to found it on permanent principles and 
not on those of a temporary nature." He next reviewed the 
Mississippi question, and the explanations of Grayson respecting 
Holland ; and examined the distinction made by Grayson be- 
tween the carrying and the producing States, showing that the 
majority of the States would probably be non-carrying, and 
would unite with Virginia in opposing them when necessary. 
In the course of his speech he answered the inquiry, t( How 



VIRGINIA CONVENTION OF 1788. 225 

came the New England States to object to the cession of the 
navigation of the Mississippi, when the Southern States were 
willing to part with it ? What was the cause of the Northern 
States being the champions of this right, when the Southern 
States were disposed to surrender it ? The preservation of this 
right will be for the general interest of the Union. The West- 
ern country will be settled from the North as well as from the 
South, and its prosperity will add to the strength and security of 
the union." 

Henry followed Madison and observed that, however painful 
it was to be making objections, he was compelled to make some 
observations. He said that the dangers with which we have 
been menaced have been proved to be imaginary; but the 
dangers from the new Constitution were real. Our dearest 
rights would be left in the hands of those whose interest 
it would be to infringe them. He reviewed Mr. Jefferson's 
letter, which had been read by Pendleton, and insisted that 
according to that letter four States ought to reject the Consti- 
tution. Where are the four States to come from if Virginia 
approves the new plan ? Let Virginia instantly reject that instru- 
ment, and all amendments necessary to secure the liberties of 
the people will certainly be adopted. But how can you obtain 
amendments when Massachusetts, the great Northern State, 
Pennsylvania, the great Middle State, and Virginia, the great 
Southern State shall have ratified the Constitution ? He exam- 
ined the doctrine that all powers not expressly granted are re- 
served, and showed that henceforth our dearest rights would 
rest on construction and implication. Did this process satisfy 
our British ancestors ? Look at Magna Charta, at the Bill of 
Rights, and at the Declaration of Rights, which prescribed on 
what terms William of Orange should reign. " The gentleman 
(Randolph) has told us his object is union. I admit that the 
reality of union, and not the name, is the object which most 
merits the attention of every friend of his country. He told you 
that you should hear many sounding words from our side of the 
House. We have heard the word union from him. I have 
heard no word so often pronounced in this House as he did this. 
I admit that the American union is dear to every man. I admit 
that every man who has three grains of information must know 
and think that union is the best of all things. But we must not mis- 



226 VIRGINIA CONVENTION OF 1788. 

% 

take the ends for the means. If he can show that the rights of the 
union are secure, we will consent. It has been sufficiently 
demonstrated that they are not secured. It sounds mighty 
prettily to curse paper money and honestly pay debts. But look 
to the situation of America, and you will find that there are 
thousands and thousands of contracts, whereof equity forbids an 
exact liberal performance. Pass that government, and you will 
be bound hand and foot. There was an immense quantity of 
depreciated paper money in circulation at the conclusion of the 
war. This money is in the hands of individuals to this day. 
The holders of this money may call for the nominal value, if 
this government be adopted. This State may be compelled to 
pay her proportion of that currency pound for pound. Pass 
this government, and you will be carried to the Federal court 
(if I understand that paper right), and you will be compelled to 
pay shilling for shilling. A State may be sued in the Federal 
court, by the paper on your table." 

He reverted to the frequently cited case of Scotland, contend- 
ing that the Scotch, like a sensible people, had secured their 
rights in the articles of union. He said that, if this new scheme 
would establish credit, it might be well enough ; but if we are 
ever to be in a state of preparation for war on such airy and 
imaginable grounds as the possibility of danger, your govern- 
ment must be military and dangerous to liberty. " But we are 
to become formidable," he said, and have a strong government 
to protect us from the British nation. Will that paper on your 
table prevent the attacks of the British navy, or enable us to 
raise a fleet equal to the British fleet ? The British have the 
strongest fleet in Europe, and can strike everywhere. It is the 
utmost folly to conceive that that paper can have such an opera- 
tion. It will be no less so to attempt to raise a powerful fleet. 
He urged the advantage of requisitions, in preference of direct 
taxation by the Federal Government, on the ground that "the 
whole wisdom of the science of government with respect to tax- 
ation consisted in selecting that mode of collection which will 
best accommodate the convenience of the people. When you 
come to tax a great country, you will find ten men too few 
to settle the manner of collection. 193 One capital advantage 

193 The number of representatives to which Virginia would be enti- 
tled in the first Congress was ten. 



VIRGINIA CONTENTION OF 1788. 227 

which will result from the proposed alternative will be this : that 
there will be a necessary communication between your ten mem- 
bers of Congress and your one hundred and seventy representa- 
tives here. We might also remonstrate, if by mistake or design 
the sum asked for is too large. But, above all, the people would 
pay the taxes cheerfully. If it be supposed that this would 
occasion a waste of time and an injury to public credit, which 
would only happen when requisitions were not complied with, 
the delay would be compensated by the payment of interest, 
which, with the addition of the credit of the State to that of the 
general government, would in a great measure obviate that 
objection." He repelled the idea that responsibility was secured 
by direct taxation, maintaining his denial by arguments drawn 
from the construction of the House of Representatives, and that 
the State governments would exercise more influence than the 
general government, contending that the larger salaries and the 
multiplicity of Federal offices would cast the balance against the 
State. He recurred to the argument of Pendleton on the nature 
of representative government, and sought to prove that the prin- 
ciple was only nominally adopted in the new scheme, enforcing 
his views by a reference to the inequality of representation in 
the Senate. Rulers are the servants of the people the people 
are their masters. Is this the spirit of the new scheme ? It is 
the spirit of our State Constitution. That gentleman (Pendleton) 
helped to form that government; and all the applause which it 
justly deserves go to the condemnation of this new plan. The 
gentleman has spoken of the errors and failures of our State 
government. " I do not justify," he said, " what merits censure, 
but / shall not degrade my country. The gentleman did our 
judiciary an honor in saying that they had the firmness to coun- 
teract the Legislature in some cases. Will your Federal judi- 
ciary imitate the example ? Where are your landmarks in this 
government ? I will be bold to say that you cannot find any in 
it. I take it as the highest encomium on Virginia that the acts 
of the Legislature, if unconstitutional, are liable to be opposed 
by the judiciary." 194 He proceeded to show that the two execu- 

194 It is remarkable that Henry rarely replied to any personal remark 
made against him in debate. In this instance he could easily have 
retorted on Pendleton the censure which that gentleman cast upon him 
for helping private literary institutions, but he passed the matter over. 



228 VIRGINIA CONVENTION OF 1788. 

% 

lives and the two judiciaries must necessarily interfere with each 
other, and that of the State must go down in the collision. The 
citizen would be oppressed by the Federal collector, and dragged 
into some distant Federal court, unless there was a Federal court 
in each county, which he hoped would not be the case. 

Madison rose to reply to Henry. He made his usual apology 
for departing from the order of the day, but was compelled to 
follow gentlemen on the other side, who had taken the greatest 
latitude in their remarks. He argued that, if there be that terror 
in direct taxation, which would compel the States to comply 
with requisitions to avoid the Federal legislature, and if, as gen- 
tlemen say, this State will always have it in her power to make 
her collections speedily and fully, the people will be compelled to 
pay the same amount as quickly and as punctually as if raised 
by the Federal Government. "It has been amply proved," he 
said, " that the general government can lay taxes as conveniently 
to the people as the State governments, by imitating the State 
systems of taxation. If the general government has not the 
power of collecting its own revenues in the first instance, it will 
be still dependent on the State governments in some measure ; 
and the exercise of this power after refusal will be inevitably pro- 
ductive of injustice and confusion, if partial compliances be made 
before it is driven to assume it. Thus, without relieving the 
people in the smallest degree, the alternative proposed will im- 
pair the efficacy of the government, and will perpetually endan- 
ger the tranquility of the union." He next combatted with 
great force the charge of the insecurity of religious freedom 
under the new system. " Is a bill of rights," he said, (< a se- 
curity for religion ? Would the bill of rights in this State 
exempt the people from paying for the support of one particular 
sect, if such sect were exclusively established by law ? 195 If there 
were a majority of one sect, the bill of rights would be a poor 
protection for liberty. Happily for the States they enjoy the 
utmost freedom of religion. This freedom arises from that mul- 
tiplicity of sects which pervade America, and which is the best 
and only security for religious liberty in any society. For where 

195 Since the delivery of this speech, the bill of rights has been decided 
to be a part of the Constitution of the State, and the question has lost its 
force. Edmund Randolph declared in this debate that it was not a 
part of the Constitution. 



VIRGINIA CONVENTION OF 1788. 229 

there is such a variety of sects, there cannot be a majority of any 
one sect to oppress and persecute the rest. Fortunately for this 
Commonwealth, the majority of the people are decidedly against 
any exclusive establishment. I think it is so in the other States. 
There is not a shadow of right in the general government to 
intermeddle with religion. Its least interference with it would 
be a most flagrant usurpation. I can appeal to my uniform con- 
duct on this subject, that I have warmly supported religious 
freedom. 196 It is better that this security should be depended 
upon from the general government, than from one particular 
State. A particular State might concur in one religious project. 
But the United States abound in such a variety of sects, that it 
is a strong security against religious persecution, and is sufficient 
to authorize a conclusion that no one sect will ever be able to 
outnumber or depress the rest." He animadverted on the intro- 
duction of Mr. Jefferson's opinions in debate, and sought by an 
appeal to the pride of the House, couched in terms as sarcastic 
as his strict sense of propriety allowed him to indulge, to impair 
the force of Henry's arguments drawn from the contents of the 
letter of that statesman. " Is it come to this, then," he inquired, 
4 'that we are not to follow our own reason? Is it proper to 
introduce the names of individuals not within these walls ? Are 
we, who, in the honorable gentleman's opinion, are not to be 
governed by an erring world, now to submit to the opinion of a 
gentleman on the other side of the Atlantic ?" He then most 
adroitly quoted the authority which he had so explicitly con- 
demned as out of place in that hall. " I am in some measure 
acquainted with his opinions on the question immediately before 
the House. I will venture to say that this clause is not objected 
to by Mr. Jefferson. He approves of it because it enables the 
government to carry on its own operations." He declined to 
follow the gentleman through all his desultory objections, but 
would recur to a few points. He rarely fails to contradict the 
arguments of those on his own side of the question. He com- 
plains that the numbers of the Federal Government will add to 



i% T m ' s i s as near an approach to his own personal acts as Mr. Madi- 
son ever made. He drew the memorial in favor of religions freedom, 
which is one of the finest State papers in our language. Had his mod- 
esty been less, many a letter and State paper in our historical literature, 
now passing under the name of another, would be known to be his. 



230 VIRGINIA CONVENTION OF 1788. 

the public expense a weight too formidable to be borne, while he 
and other gentlemen on the same side object that the number of 
representatives is too small. He inveighs against the govern- 
ment because such transactions . as require secresy may be kept 
private ; yet forgets that that very part of the Constitution is 
borrowed from the Confederation the very system which the 
gentleman advocates. He seeks to obviate the force of my 
observations with respect to concurrent collections of taxes under 
different authorities, and says there is no interference between 
parochial and general taxes because they irradiate from the same 
centre. Do not the concurrent collections under the State and 
general government, to use the gentleman's own term, all 
irradiate from the people at large? The people is the common 
superior. The sense of the people at large is to be the pre- 
dominant spring of their actions. This is a sufficient security 
against interference. He observed that he would reply to other 
arguments offered by the gentleman in their proper places. 

The House then adjourned. 

On Friday morning, the thirteenth day of June, the people 
began to assemble at an early hour in the new Academy. The 
seats set apart for spectators \vere soon filled, and an eager crowd 
had collected about the windows and beset the approaches to the 
hall. At the first stroke of the bell which announced the hour 
of ten every member was in his place. It was observed that the 
voice of Waugh, as he read the collect for the day, had a tone 
of more than usual solemnity. For it was generally known that 
the subject of the navigation of the Mississippi a subject which 
enlisted the passions equally of the rich and the poor, and was 
the absorbing topic of the age in the South would that day be 
discussed in a most imposing form ; and it was thought not 
improbable that under the daring lead of Henry the opponents 
of the Constitution, who had suddenly sprung this mine under 
the feet of its friends, might seek to carry their point by an imme- 
diate vote on the ratification of that instrument. George Nicho- 
las was the first to rise. He was friendly to the Constitution, 
and doubtless desired its success ; but he was deeply connected 
with Kentucky, whither he was soon to remove, and he was 
indisposed from motives of present as well as future policy to 
thwart the wishes of the delegation from the district. He urged 
the Convention either to proceed according to their original 



VIRGINIA CONVENTION OF 1788. 281 

determination of discussing the Constitution clause by clause, or 
to rescind that order, and discuss that paper at large. Henry 
opposed the policy of proceeding clause by clause, and thought 
that the mode of discussion should be at large. He observed 
that there was one question which had taken up much time, and 
he wished before leaving that subject that the transactions of 
Congress relative to the navigation of the Mississippi should be 
communicated to the Convention, in order that the members 
might draw their conclusions from the best source. With this 
view he hoped that those gentlemen who had been then in Con- 
gress, and the present members of Congress in Convention, 
could communicate what they knew on the subject. He declared 
that he did not wish to hurt the feelings of the gentlemen who 
had been in Congress, or to reflect on any private character; 
but that for the information of the Convention, he was desirous 
of having the most authentic account, and a faithful statement of 
facts. Nicholas assented to the proposition of Henry. Madison, 
who had at the commencement of the session written his fears to 
Washington that the topic of the Mississippi might jeopard the 
success of the Constitution, felt indignant at the snare which he 
believed Henry had spread for his destruction, and seemed not in- 
disposed, contrary to his usual habit, to construe the action of that 
individual into a personal reflection upon himself. He rose and 
declared that, if Henry thought that he had given an incorrect 
account of the transactions relative to the Mississippi, he would 
on a thorough and complete investigation find himself mistaken ; 
that it had always been his opinion that the policy which had for 
its object the relinquishment of that river was unwise, and that 
the mode of conducting it was still more exceptionable. He 
added that he had no objection to have every light on the subject 
that could tend to elucidate it. 

The House then resolved itself into a Committee of the Whole, 
"more particularly for the purpose of receiving information con- 
concerning the transactions of Congress relative to the Mis- 
sissippi." Wythe took the chair, and, on motion, the acts and 
resolutions of the Assembly relative to the Mississippi were read. 

We now proceed to record a scene which our fathers were 
wont to rehearse to their sons in subdued tones, as if the crisis 
were imminent, which nearly involved the fate of the Federal 
Constitution, and which, even at this day, when viewed through 



232 VIRGINIA CONVENTION OF 1788. 

the mirage of seventy summers, appears one of the most intensely 
interesting and thrilling scenes in our history. We are to recorcf 
the spectacle of a people, in their highest sovereign capacity, 
holding an inquest into the conduct of their representatives on 
an occasion of vital importance to their own welfare and to the 
welfare of their posterity. It will have been seen that the navi- 
gation of the Mississippi had often been alluded to in debate, and 
had been discussed at some length on both sides of the House. 
At the present day, if we look to the West, we will see many 
young, populous, and prosperous republics, which feel a more 
direct interest in that river than we can possibly feel ; for while 
we can only regard it mainly in a national view, they regard it as 
the source of daily personal convenience and profit as well as in 
its national aspect ; but it was far otherwise with our fathers. 
They cherished the right to navigate that river as the apple of 
their eye. It was with a just pride that they looked to the 
extended limits of the State. Often has the young Virginian, 
when visiting the picturesque seats on the Thames, told to won- 
dering Englishmen how the eastern frontier of the great Com- 
monwealth from which he came rested on the Atlantic, and how 
the western, instead of being traced, as now, by an imaginary 
line running through obscure forests and over hills and creeks, 197 
was bounded by that majestic stream, whose many waters, spring- 
ing from the recesses of far distant and inaccessible mountains, 
whose base the foot of civilized man had never approached, and 
in their course of thousands of miles through an illimitable 
region, into which the fearless La Salle had not ventured to launch 
his canoe, nor the saintly Hennepin to hold up the cross of his 
Heavenly Master, gathering tributes from streams vaster than 
their own, flowed past its entire extent in their triumphal progress 
to the sea. The present Commonwealth of Kentucky, then a 
district of Virginia, was divided into six counties, which, like the 
other counties of the State, sent a delegation of two members 
each to the present Convention. To the prosperity, nay, almost 



197 The word "creek" is an instance of the truth with which the 
origin of a people may be traced in their use of words. It is properly 
applicable to salt water cestuanes only, and its use in connection with 
water-courses a thousand miles distant from tide, shows that the ances- 
tral stock came from the seaboard, and, perhaps, from an island, where 
the word necessarily abounds more than on the mainland. 






VIRGINIA CONVENTION OF 1788. 233 

to the very existence of that territory, which was soon to become 
a State, the navigation of the Mississippi was indispensable ; and 
it was now believed that the twelve members from the district 
held the fate of the Constitution in their hands. If they voted 
for that instrument in a body, its ratification was certain ; and if 
they gave an united vote against it, its rejection was deemed 
almost certain. There were other contingent interests connected 
with the subject which were of grave moment. The emigrants 
to the district were principally Virginians, the sons and daughters, 
and, in some cases, the fathers and mothers, of those whom they 
left behind in their quest of the cheap and fertile lands of the 
west. There was another tie which bound the people of Virginia 
to the new land of promise, even stronger than that of consan- 
guinity. They lived by agriculture ; and the wide area of land, 
shelving gradually from the Blue Ridge to the ocean, had been 
for nearly two centuries in cultivation, and had long ceased to 
retain the virtues of the virgin soil. While such was the case, 
with some exceptions, generally, it was especially so in the 
country not far above tide and nearly all below it, a region of 
country which embraced much of the active capital of the State. 
Large speculations had already taken place in western lands, and 
more than one prominent member of the Convention was cast- 
ing his eyes to Kentucky as the future home of himself and of 
his posterity. But all these flattering hopes would be instantly 
blasted with the loss of the navigation of the Mississippi. The 
poor man might indeed build his cabin in the district, and rear 
his family on the products of his farm and from the chase ; but 
capital there could find no employment unless the proceeds of 
labor could be made to mingle with the commerce of the world. 
It had been well known that the cession of that river to Spain 
had been recently under discussion, and had received the coun- 
tenance of the Secretary of Foreign Affairs, who, it was said, was 
acting in friendly union with Guardoqui, the Spanish minister. 
Rumors only reached the public ear ; for, as the proceedings of 
Congress were secret, no reliable intelligence on the subject was 
generally known. An alarm faintly to be expressed by words 
seized the people generally, irrespective of their place of resi- 
dence. The Ken^'ickians were maddened almost to desperation. 
And it was plain that Kentucky would not only refuse to be a 
party to a treaty of cession, but to acknowledge its obligation. 



231 VIRGINIA CONVENTION OF 1788. 

Fortunately, several of the members of Congress were also 
members of the Convention, and from them the true state of the 
case might be ascertained. What enhanced the interest of the 
present occasion was the belief that the "six easternmost States" 
had seemed to acquiesce in the suggestion of Mr. Jay, the Secre- 
tary of Foreign Affairs, of a cession of the river to Spain for five 
and twenty years; and that, under the new system, as had been 
shown by Grayson, it was possible that as ten members might 
constitute a quorum of the Senate competent to make a treaty, 
and as those ten were returned by five States, the five New Eng- 
land States might seize the lucky moment, and accomplish the 
ruin of the West. The subject was also regarded with peculiar 
emotions by the Convention as a body. The friends of the 
Constitution viewed the whole affair as a plot deliberately de- 
signed for their overthrow, and although they felt the deepest 
indignation, and knew that, though they might lose everything, 
they could not possibly gain a single advantage, they were com- 
pelled from policy to assent to this public exposition. Quite 
different were the feelings of the opponents of the new scheme. 
They regarded that scheme as fraught with untold evils to the 
country, and were ready to avail themselves of all legitimate 
means to prevent its adoption. The navigation of the great 
river of the West had hung by a hair, and the safety of that 
invaluable right alone was of sufficient importance to make or to 
unmake constitutions. They also believed that not only was 
this great right insecure, but that all the other great rights which 
society was formed to protect were in peril from the proposed 
scheme of government. That the scene might not lack the 
proper complement in a solemn public inquisition, Henry acted 
as Attorney for the Commonwealth, and the zeal, the tact, and 
the keenness which he displayed in his self-assumed office, made 
him no unmeaning figure in that exciting drama. 

The members of the Convention who had been in Congress 
during the Mississippi affair were Henry Lee and Madison, who 
were friendly to the Constitution, and Grayson and Monroe, who 
were opposed to it. It is probable that Madison, who was an 
expert parliamentarian, had arranged that Lee should first 
address the committee, reserving for himself the closing of the 
discussion. Lee accordingly took the floor. 

Of the appearance of this brilliant soldier as he then was, in 



VIRGINIA CONVENTION OF 1788. 235 

the prime of manhood, we have already spoken. Now there 
was an evident confusion in his manner. He disliked the subject, 
he disliked the purposes for which it had been introduced, and 
he disliked himself; for he had written to Washington when the 
subject was before Congress, intimating plainly that he was not 
indisposed to cede the river to Spain for a term of years. 198 He 
said a few words only, but strongly asserted that it was the deter- 
mined resolution of Congress not to give up that river, and that 
they earnestly wished to adopt the best possible plan of securing 
it. The testimony of Lee was strictly true, but it was the testi- 
mony of a tactician, not of a statesman. It was true that Con- 
gress did not intend to surrender the right of navigating the 
Mississippi, and that they wished to secure it in what they deemed 
the best possible manner, but it was also true that the assent of 
only three States was wanting to vote the surrender of the navi- 
gation for the term of twenty-five years a period at the expira- 
tion of which half the present population of the globe would be 
in their graves. 

Monroe, who was two years younger than Lee, having just en- 
tered his thirtieth year, and who well deserved the compliment 
of honest and brave which Mr. Jefferson had paid him, was called 
upon to speak. He said he had heretofore preserved silence on 
the subject, and, although he acknowledged his duty to obey the 
wishes of the General Assembly, that body had relieved him, at 
his request, from the necessity of making any disclosure. The 
right of the Convention was even paramount to that of the As- 
sembly ; but he wished it had not been exercised by going into 
committee for that purpose. He objected to the partial repre- 
sentations which had been made in debate as likely to lead into 
error. The policy of Virginia in respect of the navigation of the 
Mississippi had always been the same. It is true that at a se- 
vere crisis she had agreed to surrender the navigation ; but it 
was at a time when the Southern States were overrun and in 
possession of the enemy. Georgia and South Carolina were 
prostrate. North Carolina made but a feeble resistance. Vir- 
ginia was then greatly harassed by the enemy in force in the 
heart of the country, and by impressments for her own defence 
and for the defence of other States. The finances of the Union 

198 Sparks' Washington Correspondence, IV, 137. 



236 VIRGINIA .CONVENTION OF 1788. 

were totally exhausted, and France, our ally, was anxious for 
peace. The object of the cession was to unite Spain in the war 
with all her forces, and thus bring the contest to a happy and 
speedy conclusion. Congress had learned from our minister at 
the Spanish court that our Western settlements were viewed with 
jealousy by Spain. All inferior objects must yield to the safety 
of society itself. Congress passed an act authorizing the ces- 
sion, and our minister at the court of Spain was authorized to 
relinquish this invaluable right to that power on the condition 
already stated. But what was the issue of this proposition ? 
Was any treaty made with Spain that obtained an acknowledg- 
ment of our independence, although she was then at war with 
England, and such acknowledgment would have cost her noth- 
ing? Was a loan of money accomplished? In short, does it 
appear that Spain herself thought it an object of any import- 
ance? So soon as the war was ended, this resolution was re- 
scinded. The power to make such a treaty was revoked. So 
that this system of policy was departed from only for a short 
time, for the most important object that can be conceived, and 
resumed again as soon as it possibly could be. 

After the peace, continued Monroe, Congress appointed three 
commissioners to make commercial treaties with foreign powers, 
Spain inclusive ; so that an arrangement for a treaty with Spain 
had been already taken. While these powers were in force, a 
representative from Spain arrived, who was authorized to treat 
with the United States on the interfering claims of the two na- 
tions respecting the Mississippi, and the boundaries and other 
concerns in which they were respectively interested. A similar 
commission was given to the honorable the Secretary of Foreign 
Affairs on the part of the United States, with these ultimata : That 
he enter into no treaty, compact, or convention whatever, with the 
said representative of Spain which did not stipulate our right to 
the navigation of the Mississippi, and the boundaries as estab- 
lished in our treaty with Great Britain. Thus the late negotia- 
tion commenced under the most flattering auspices. Was it not 
presumable that she intended, from various circumstances, to 
make a merit of her concession to our wishes? But what was 
the issue of this negotiation? Eight or ten months elapsed with- 
out any communication of its progress to Congress, when a let- 
ter was received from the Secretary, stating that difficulties had 



VIRGINIA CONVENTION OF 1788. 237 

arisen in his negotiation with the representative of Spain, which, 
in his opinion, should be so managed as that even their existence 
should remain a secret for the present, and proposing that a 
committee be appointed with full power to direct and instruct 
him in every case relative to the proposed treaty. As the only 
ultimata in his instructions respected the Mississippi and the 
boundaries, it readily occurred that these occasioned the difficul- 
ties alluded to, and were those which he wished to remove. And 
for many reasons, said Monroe, this appeared to me an extra- 
ordinary proposition. By the Articles of Confederation, nine 
States are necessary to enter into treaties. The instruction is 
the foundation of the treaty ; for if it is formed agreeably thereto, 
good faith requires that it be ratified. The instructions under 
which our commercial treaties have been made were carried by 
nine States. Those under which the Secretary now acted were 
passed by nine States. The proposition then would be, that the 
powers, which, under the Constitution, nine States only were 
competent to exercise, should be transferred to a committee, and 
that the object of the transfer was to disengage the Secretary 
from the ultimata in his existing instructions. In this light the 
subject was taken up, and on these principles discussed. The 
Secretary, Mr. Jay, summoned before Congress to explain the 
difficulties mentioned in his letter, presented the project of a 
treaty of commerce containing, as he supposed, advantageous 
commercial stipulations in our favor, in consideration of which 
we were to contract to forbear the use of the navigation of the 
Mississippi for the term of twenty-five or thirty years ; and he 
earnestly advised the adoption of it by Congress. The subject 
now took a decided form. All ambiguity was at an end. We 
were surprised that he had taken up the subject of commerce at 
all. We were still more surprised that it should form the prin- 
cipal object of the project, and that a partial or temporary sacri- 
fice of the very interest, for the advancement of which the nego- 
tiation was set on foot, should be the consideration to be given for 
it. The Secretary urged that it was necessary to stand well with 
Spain ; that the commercial project was highly beneficial ; that a 
stipulation to forbear the use, contained an acknowledgment on 
the part of Spain of our right ; that we were in no condition to 
take the river, and therefore gave nothing for it ; and for other 
reasons. We differed with the Secretary almost in every respect. 



238 VIRGINIA CONVENTION OF 1788. 

We wished to stand well with Spain, but wished to accomplish 
that end on equal terms. We considered the stipulation to for- 
bear the use as a species of barter unbecoming the magnanimity 
and candor of a nation, and as setting a precedent which might 
be applied to the Potomac, the Hudson, or the Chesapeake. 
We thought that there was a material distinction between a stipu- 
lation to forbear the use, and an inability to open the river. The 
first would be considered by the inhabitants of the Western coun- 
try as an act of hostility ; the last might be justified by our 
weakness. And with respect to the commercial part of the pro- 
ject, we really thought it an ill-advised one on its own merits 
solely. The subject was referred to a Committee of the Whole. 
The delegates from the seven easternmost States voted that the 
ultimata in the instructions of the Secretary should be repealed ; 
which was reported to the House, and entered on the Journal by 
the Secretary of Congress, as affirming the fact that the question 
was carried. Upon this entry a constitutional question arose to 
this effect : nine States being necessary, according to the Arti- 
cles of Confederation, to give an instruction, and seven having 
repealed a part of an instruction so given for the formation of a 
treaty with a foreign power, so as to alter its import and autho- 
rize, under the remaining part thereof, the formation of a treaty 
on principles altogether different from what the original instruc- 
tion contemplated, can such remaining part be considered as in 
force and constitutionally obligatory? We pressed on Congress 
for a decision on this point often, but we pressed in vain. Not- 
withstanding this, I understood, said Monroe, that it was the 
intention of the Secretary to proceed and conclude a treaty in 
conformity with his project with the Spanish minister. At 
this stage I left Congress. "I thought it my duty," he said, 
" to use every exertion in Congress for the interest of the 
Southern States. With many of those gentlemen to whom 
I always considered it my particular misfortune to be opposed, 
I am now in habits of correspondence and friendship ; and I 
am concerned for the necessity which has given birth to this 
relation. Whether the delegates of those States spoke the lan- 
guage of their constituents ; whether it may be considered as the 
permanent interest of those States to depress the growth and 
increasing population of the Western country, are points which I 
cannot pretend to determine." He concluded with the expres- 



VIRGINIA CONVENTION OF 1788. 239 

sion of the opinion that the interest of the Western country would 
not be as secure under the proposed Constitution as under the 
Confederation ; because under the latter system the Mississippi 
could not be relinquished without the consent of nine States ; 
whereas by the former a majority of seven States could yield it. 
His own opinion was that it would be given up by a majority of 
the senators present in the Senate, with the president, which 
would put it in the power of less than seven States to surrender 
it ; that the Northern States were inclined to yield it ; that it was 
their interest to prevent an augmentation of Southern influence 
and power ; and that, as mankind in general, and States in par- 
ticular, were governed by interest, the Northern States would 
not fail of availing themselves of the opportunity afforded by. 
the Constitution of relinquishing that river in order to depress 
the Western country, and prevent the Southern interest from 
preponderating. 

Now, little did Monroe reflect, as that august assembly was 
eagerly watching every word that fell from his lips, how vain in 
respect of the future is the wisdom of the wise, and how rarely 
the vaticinations of politicians, founded on the most subtle pro- 
cesses of logical deduction, are fulfilled ! How little did he dream 
that in a few short years Spain should, in an agony of terror, 
cede her dearly cherished province of Louisiana with all its 
appendages to France ; that in less than fourteen years from 
the time when he was speaking, not only the right of navigating 
the Mississippi should be acquired by the United States, but 
the exclusive title to the river itself; and not only the exclu- 
sive title to the river itself, but the exclusive title to the superb 
realm drained by its waters ; that the beneficent treaty which 
was to accomplish such results, which was to settle so many 
dangerous disputes, and which was destined to confer upon 
untold generations the choicest blessings of heaven, should be 
mainly negotiated by himself, and should be ratified by a con- 
stitutional majority of that Senate which he now viewed with 
such stern distrust ; that, before the expiration of the term 
stipulated by Mr. Jay, he should preside in the Federal Govern- 
ment, and that he should, in a heedless moment, in a time of pro- 
found peace, and when surrounded by a Southern cabinet, 199 

199 Mr. Monroe's cabinet consisted of Mr. Adams of Massachusetts ; 
Mr. Crawford, of Georgia ; Mr. Calhoun, of South Carolina ; Mr. 



240 VIRGINIA. CONVENTION OF 178.8. 

virtually cede to Spain a vast and fertile dominion of the South, 
which a succeeding generation, at the sacrifice of thousands of 
valuable lives and of more millions than made up the debt of the 
Revolution, should recover; but not until an infant then puling 
in the nurse's arms in an humble homestead in Orange (General 
Zachary Taylor) had won a series of dazzling victories on the 
soil of the enemy, and not until another Virginia boy, then run- 
ning barefoot on a farm in Dinwiddie (General Winfield Scott), 
had landed, from the decks of ships which had already won dis- 
tinction in contests with the ships of the greatest naval power of 
the globe, his brilliant battalions on the hostile shore, and, mark- 
ing his encampments by battles, and his battles by victories, 
should close his campaign by unfurling in the proud capital of 
the enemy, above those gorgeous structures from which the once 
terrible lions of Spain had for two centuries bade defiance to the 
world, the standard of his country. 

The speech of Monroe was well received. It made upon the 
House a strong impression, which was heightened by the modesty 
of his demeanor, by the sincerity which was reflected from every 
feature of his honest face, and by the minute knowledge which 
he exhibited of a historical transaction of surpassing interest to 
the South. But if the impression was felt by the members gen- 
erally, it was felt most keenly by those who were anxious about 
the sales of their crops and for the prosperity of their families. 
The members from the West were furious. They had just learned 
for the first time the imminent hazard to which their most valued 
privilege had been exposed, 200 and they did not conceal their 
indignation. And that indignation was neither unbecoming nor 
uncalled for. That a Secretary of State, instructed strictly to 
negotiate a treaty for the security of an object of vital importance 
to the South and West, should lose sight of that object altogether 



Thompson, of New York; and Mr. Wirt, of Virginia, as attorney-gen- 
eral ; including Mr. Monroe himself, it was a strong Southern adminis- 
tration. 



200 j n jygg information traveled slowly. In fact, the intelligence 
divulged by Monroe, in compliance with the wishes of the Convention, 
could have been known but to few. Humphrey Marshall saw the 
numbers of The Federalist for the first time in the hands of George 
Nicholas, whom he fell in with on his way from Kentucky to attend the 
present Convention. Butler 's History of Kentucky, 167. 



VIRGINIA CONVENTION OF 1788. 241 

and propose a treaty relating to an object of lesser importance, 
which was beyond his powers, and which, insignificant and value- 
less in itself, could only be obtained by a sacrifice of the invalua- 
ble rights which he was expressly instructed to secure, and that 
such a project should be sanctioned by seven Eastern States in 
direct contravention of the Articles of Confederation, might well 
arouse the astonishment and anger of the West. Nor was the 
time of danger past. The treaty may have been already made, 
and might then be on its way to Spain. 

The alarm thus raised soon extended to the new Constitution. 
For it was plain that the seven States which had so recently voted 
to cede the right of navigating the Mississippi, and which might 
be supposed to retain their opinions unchanged, would certainly 
constitute a majority of the new Senate if every member was in 
his seat, and might at some unexpected moment and in a thin 
house, accomplish by a vote of two-thirds of a quorum their 
decided purpose. Such was the excitement in the Convention 
that men whose opinions were entitled to respect declared after- 
wards that, if the final vote on the Constitution had then been 
pressed, that instrument would have been lost by a majority fully 
as large as that which ultimately adopted it. 

Grayson rose next to give his testimony in the case. In age, 
in eloquence, and in breadth of statesmanship, he stood nearly 
in the same relation to Monroe, to Lee, and to Madison, that in 
a body which sat forty years later in this city Watkins Leigh 
and Chapman Johnson stood to Dromgoole, to Goode, to Mason 
of Southampton, to Mason of Frederick, to Miller of Botetourt, 
and to Moore of Rockbridge. He said that, like Monroe, he 
felt a delicacy in disclosing what had occurred in secret session ; 
but he declared that he had protested against the injunction of 
secrecy on a great constitutional question. He coincided in the 
statement just made, and said that Spain claimed not only the 
absolute and exclusive navigation of the Mississippi, but one-half 
of the State of Georgia and one-half of the district of Kentucky ; 
and that this was the reason of the limitation imposed on the 
Secretary relative to the boundaries recognized in our treaty 
with Great Britain. He said that the Southern States were 
opposed to a surrender of the Mississippi ; that the Northern 
States were once opposed to give it up, but that was when they 
were apprehensive about their fisheries, on which their very 

16 



242 VIRGINIA CONVENTION OF 1788. 

existence depended, and regarding the Mississippi as a counter- 
poise to the fisheries, they apprehended that, if the Mississippi 
were given up, the fisheries might also be relinquished ; that the 
fisheries were now secure, and the result was that the seven 
easternmost States had resolved to release Mr. Jay from the fetters 
which had been imposed upon him by the constitutional majority 
of nine States ; that this determination had been communicated 
to Mr. Jay for his guidance in forming a treaty with the Spanish 
minister ; that this instruction violated the express injunction of 
the Constitution, which required nine States to make a treaty. 
Adhere to the limitations imposed upon Mr. Jay, and Georgia 
was safe, Kentucky was safe, the Mississippi was safe, the Con- 
stitution was safe ; depart from them, and the most precious 
rights and privileges of the South are at his mercy. He said 
that, as the instructions to Mr. Jay were the foundation and sub- 
stance of the treaty, any compact which that gentleman might 
make with the Spanish minister would, if not ratified by Congress, 
give Spain just cause of war ; so that we would be involved in 
the dilemma of violating the Constitution by a compliance with 
it, or, in case of a non-compliance, of incurring the risks of war 
with that power. The South also contended that it had no right 
to dismember the empire, or relinquish to a foreign power the 
exclusive navigation of our rivers. He said that Maryland had 
coincided with the North. He again reverted to the reluctance 
which the Eastern States had at one time evinced toward surren- 
dering the Mississippi, and said that, when their apprehensions 
were removed, the natural instinct of interest revived, and they 
became solicitous of securing a superiority of influence in the 
national councils. Their language, he said, was this : " Let us 
prevent any new States from rising in the Western world, or they 
will outvote us. We will lose our importance, and become as 
nothing in the scale of nations. If we do not prevent it, our 
countrymen will remove to those places instead of going to sea, 
and we will receive no particular tribute or advantage from 
them" 1 When he had expressed his opinions at length, he 
said that whether this great interest would be safe under the 
new Constitution he left it to others to determine. It certainly 
was not safe under the present, though more so than under the 
one proposed for their adoption. 

201 The language and the italics of the quotation are Grayson's. 



VIRGINIA CONVENTION OF 1788. 243 

When Grayson ended, Henry rose to request Monroe to dis- 
cover the rest of the project, and to inform the House what Spain 
was to do on her part as as an equivalent for the cession of the 
Mississippi. Monroe replied that the equivalent was the advan- 
tages of commercial intercourse ; but that Spain conceded nothing 
more in fact than was granted to other nations trading with her. 
When Monroe expressed this opinion, it is said that an expression 
of astonishment was visible on the faces of the members. 

It was at this culminating point of the discussion that Madi- 
son, then in his thirty-seventh year, and in the full possession of 
those admirable powers of debate, which, unused and unob- 
served for more than the third of a century before his death, have 
been almost forgotten in the contemplation of the subsequent 
titles that he acquired to the grateful remembrance of his coun- 
try, was called to the floor. He could not well have been placed 
in a more unpleasant predicament. It was impossible to defend, 
directly and unequivocally, the action of Congress. No speaker 
who would rise and approve the deliberate instruction of seven 
Eastern States to dismember the half of Georgia and the half of 
Kentucky, and to cede with the territory of those States the 
absolute and exclusive navigation of the Mississippi, without an 
equivalent, to a foreign power, could expect for an instant the 
favorable ear of a Southern assembly. Yet some defence was 
required at his hands. The new Constitution was in imminent 
jeopardy. It is evident from his remarks which have come down 
to us, that he was much discomposed. He could neither conceal 
the whole truth nor tell the whole truth without inflicting equal 
injury upon the cause which he had so much at heart. If he 
concealed any part of the truth, there were Grayson and Monroe 
to refresh his memory ; if he told the whole truth, he would 
sustain by his own authority the truth of as palpable an outrage 
as was ever aimed at the liberties of a free people. But it is on 
such occasions that the man of genius appears in strong contrast 
with the mere man of words, however dexterously he may use 
them in common emergencies. What disarranged him the more 
was the belief and certain knowledge that the whole scene had 
been conjured up by Henry to effect the ruin of the new Consti- 
tution, and it was with emotions bordering on disgust that he 
found himself compelled to contribute his share to the entertain- 
ment. As, in the early part of the day, he was disposed to inter- 



244 VIRGINIA* CONVENTION OF 1788. 

pret the conduct of Henry in seeking a full disclosure of the sub- 
ject as, in some measure, personal to himself, so he now reflected 
upon the action of the House in a way that might have led to 
a call to order. He said it was extremely disagreeable to him 
to enter into a discussion which was foreign to the deliberations 
of the House, and which would sully the reputation of our pub- 
lic councils. He admitted the facts as stated by the gentlemen 
who had preceded him, but he differed about the principles in- 
volved in them. He declared that he never approved the ces- 
sion ; that neither the Confederation nor the proposed Constitu- 
tion gave a right to surrender the Mississippi ; that such a sur- 
render was repugnant to the laws of nations ; paid a glowing 
compliment to the virtues and talents of Mr. Jay ; and demon- 
strated that, whatever may have been the opinions of their rep- 
resentatives at a particular time on the subject, it was the per- 
manent interest of the Northern States, which were the carriers 
of our produce, to sustain the navigation of the Mississippi; that 
it would be unwise to argue that, as the South had at one time 
assented to the cession and changed its opinion, the North 
might not do the same ; and spread such an ingenious net- work 
of argument and opinion over the glaring facts of the case as in 
some degree to conceal its deformity. He ended by saying that 
there were circumstances within his knowledge which rendered it 
certain that no effort would be made hereafter unfavorable to the 
navigation of the Mississippi. His speech, even in its present 
form, is an exquisite specimen of the tact and skill with which an 
eminent statesman, wielding the while with extraordinary judg- 
ment the weapons of a debater, may appear to walk steadily 
over ground that was quaking beneath him. 

As soon as Madison took his seat Grayson appeared on the 
floor. He instantly reverted to the considerations which Madi- 
son did not think proper to disclose to the House, stated by way 
of supposition what they were, and sought by a detail of facts 
and by general reasoning to demonstrate that no reliance could 
be placed upon them. He followed Madison step by step, and 
assailed his reasoning in a speech which, by its statesmanlike 
views of domestic policy, by the fervor of its declamation, and 
by the force of its logic, was one of the most fascinating exhibi- 
tions of the day. Madison, as if disinclined to protract the dis- 
cussion, made no reply. 



VIRGINIA CONVENTION OF 1788. 245 

Henry then spoke. A more appropriate time for the display 
of his peculiar powers could not be desired. The occasion, the 
theme, the immeasurable issues which might be swayed by the 
deliberations of a single day, threw such an inspiration over his 
genius that he seemed to be wrapt into a higher sphere, and 
his lips appeared to glow as if touched with the coals from the 
altar. The leading facts of a great question of national policy 
were before him, and it was his duty to press them upon the 
hearts of his audience. He began by throwing the responsi- 
bility of the discussion on Madison, who had gone at large into 
the subject, and, following for a time his train of argument, 
threw himself on his own inexhaustible resources. Elderly men, 
who had heard his most eloquent speeches, and who pronounced 
his speech on this occasion one of the most eloquent of all, 
delighted to recall the lineaments of two pictures which he drew 
with a master's hand. One described the great valley of the 
Mississippi as stretching from the Alleghanies to the nameless 
mountains of the distant West, as teeming with a mighty popu- 
lation, cultivated farms, thriving villages, towns, cities, colleges, 
and churches, filling the vision in every direction the Missis- 
sippi covered with ships laden with foreign and domestic wealth 
the West the strength, the pride, and the flower of the Confed- 
eracy. Such would be the valley of the West with a free navi- 
gation of the Mississippi, and under a Federal system. The 
other picture was a reverse of the scene, and presented a pros- 
pect of unalloyed calamity. The Mississippi no longer alive 
with ships its unburdened waters flowing idly to the sea no 
villages, no towns, no cities, no schools, no churches, no culti- 
vated plains ; the original solitude of the forest unbroken, save 
here and there by the rude hut of the outlaw ; capital flying 
from a land where it would turn to dross. Such would be the 
West with the loss of the Mississippi, and under a consolidated 
government to be controlled by those who had no interest in its 
welfare. The reported speech is more argumentative than elo- 
quent ; but it is plain that the reporter rarely was able to do 
more than record the main points made by the speaker. 

At the close of the speech there was a pause in the House.! 
No Federalist seemed willing to engage in the discussion. It is ( 
said that Pendleton, who was in the body of the House, his 
right hand clenching his crutch, sat silent and amazed. He 



246 VIRGINIA .CONVENTION OF 1788. 

felt that moment more keenly the spell of Henry's genius than 
when, in the House of Burgesses in 1765, he heard him defy 
the king, or when, in the Convention of 1775, he heard him ex- 
claim " Give me liberty, or give me death." 

It was at this fearful moment that there rose to address the 
House one of those remarkable men of whom the Revolution 
was prolific, and who had nearly changed the fortunes of the 
hour. He appeared to be about the middle stature, thick and 
broad ; and though only in his thirty-fifth year, his head was so 
bald as to suggest the impression that in some fierce Indian foray 
he had forfeited his scalp. In his features and in his demeanor 
there was nothing imposing. His voice was the voice of a man 
accustomed to address popular assemblies, but was to be noted 
neither for its power nor its sweetness. His influence lay in 
another direction. He had mingled freely with all classes of 
society, and was as familiar with the camp and the court-green 
as if his feet had never pressed the carpets of " Westover," or his 
lips had never been moistened with the mellow wine from the 
vaults of " Brandon " or of " Shirley." He was one of that bril- 
liant group of soldier-statesmen who had caught their inspiration 
and their love of country from the lips of Wythe. At the bar, to 
the front rank of which he had risen, his tact and knowledge of 
mankind availed himself as much, if not more, than his learning, 
which he had drawn mainly from Blackstone, whose commenta- 
ries had already superceded the elder writers of the law, and had 
been for the past eighteen years in the hands of every educated 
Virginian. He entered the House of Delegates in early life, 
and soon became one of the leaders of the body. He was utterly 
fearless. He shrunk from no duty, and in the midst of a civil 
war he sought to subject to an impeachment a statesman who 
was the second Governor of Virginia, and whose name now 
stands, and will stand forever, second only to that of Washington. 
He bore a name illustrious in the annals of the Colony and of the 
Commonwealth ; but George Nicholas had a genius of his own 
which needed no hereditary endorsement, and was ample enough 
to sustain him in any sphere, military or civil, which might suit 
his fancy. Soon after the separation of Kentucky from Virginia 
he emigrated to the new Commonwealth, where he succeeded in 
attaining the same elevated position which he held at home, and 
blended his name inseparably with the early history of that State. 



VIRGINIA CONVENTION OF 1788. 247 

His influence in his native State and in the State of his adoption 
is felt to this day. He possessed great tact in the management 
of public bodies, and had already participated with great ability in 
the debates of the body. He saw at a glance that the fate of the 
Constitution might depend upon the results of that day's session. 
He well knew that if the Kentucky delegation voted against the 
Constitution, and was joined by a single county on the Western 
waters, the fate of that instrument was sealed. He instantly 
decided on his plan of attack. He saw that all explanations and 
apologies were idle. He determined, instead of resting on the 
defensive, to push into the ranks of the enemy, and make a 
desperate effort to retrieve the fortunes of the day. He said that 
the statements which he had heard that day had filled him with 
astonishment A great, an inestimable right, the right of navi- 
gating the Mississippi, which was necessary, which was indispen- 
sable to the development of the resources of that fertile region 
and to the prosperity of the South, had nearly been sacrificed. 
It was in this strain that he continued until he had disarmed sus- 
picion and had gained the sympathy of a majority of the House, 
when, turning suddenly to Henry, he exclaimed, By whom was 
this fearful act contemplated? By the gentleman's favorite Con- 
federation. Would gentlemen dare to say that this was an 
argument which should induce the West to uphold a system of 
government which might consummate the odious and abominable 
policy which it had already set in train ? It was by this mode of 
argument that he sought to quiet the fears of the members from 
the West, and his argument produced a sensible eftect upon the 
House which Edmund Randolph sought to deepen ; but while 
Corbin, who followed Randolph on the same side, was speaking, 
a storm arose, which rendered speaking impossible, and the 
House adjourned. The result of this day's discussion a dis- 
cussion which, whether we consider the intense interest of the 
subject which called it forth, the various talents which were 
exhibited in its course, and the splendid prize held up to the suc- 
cessful combatants, was one of the most interesting in our 
history was, that of the fourteen members from Kentucky, ten 
voted against the ratification of the Federal Constitution. 

On the morning of Saturday, the fourteenth of June, a painful 
rumor reached the House. Pendleton had fallen suddenly ill the ] 
night before, and was unable to take his seat. The House pro- 

* s 



248 VIRGINIA CONVENTION OF 1788. 

ceeded to the election of a vice-president, which resulted in the 
choice of John Tyler, 202 who was to preside during the inability 
of Pendleton. He was one of the staunchest opponents of the 
new Constitution; but that his appointment might lack no mark 
of honor, and might show conspicuously to future times the 
courtesy of a body, which, though agitated by the strongest pas- 
sions, disdained to look to the opinions of an individual, but re- 
garded only his fitness for the office which he would be called 
upon to fill, the vote was unanimous. Nor could that exalted 
honor have been conferred on a purer statesman, or on one more 
competent in all respects to discharge its duties. The history of 
the vice-president well deserves to be studied by posterity. His 
paternal ancestor of the same name, a youth of seventeen, had 
come over in 1637, had settled in Bruton parish, the official re- 
cords of which attest, until near the close of the seventeenth 
century, his zeal in the cause of the Church, and had founded a 
numerous family, some of the most distinguished members of 
which still reside within a short range of the ancient seat of their 
race. It has been said that he could trace his descent from those 
brave outlaws of Sherwood Forest, who were wont to sally forth 
and levy upon their generation certain rude extemporaneous as- 
sessments, which were respected more from the summary mode 
in which they were exacted than from their consonance with the 
laws of the realm. 

John Tyler, who had just received from his associates so sig- 
nal a mark of their respect, was born in the year 1748 in the 
county of James City, where he grew up to manhood. His 
mother was of French extraction, and he mingled in his veins 
the blood of the Anglo-Saxon with the blood of the Huguenot, 
a mixture not unfriendly to freedom, to genius, to eloquence, 
and to philosophy. 203 From his nearness to Williamsburg, 

202 The Journal of the Convention not only does not contain the name 
of the mover and seconder, but omits all notice of the election. The 
" Debates " mention the appointment, but not the name of the member 
who moved it. It was probably Patrick Henry, who was particularly 
fond of Tyler, and had nominated him to the speakership of the House 
of Delegates on more than one occasion, if I mistake not. The ances- 
tor of John Tyler was believed to be the famous Wat Tyler, of the 
times of Richard II. 

203 The mother of John Tyler of the text was a daughter of Dr. Con- 
tesse of Williamsburg. 



VIRGINIA CONVENTION OF 1788. 249 

whither his father, who was Marshal of the Colony, and himself 
frequently repaired, he had an opportunity of observing the 
incidents of the time. He could remember Fauquier as well as 
Botetourt and Dunmore ; had seen their stately progresses 
through the Colony, and at the age of seventeen had heard the 
speech of Henry on his resolutions against the Stamp Act. 
From that hour began his opposition to a kingly government, 
which continued unfalteringly till the day of his death. He 
attended William and Mary College, and studied law in the office 
of Robert Carter Nicholas, from whose character he copied 
several traits which were afterwards conspicuous in his own. 
When Dunmore purloined the powder from the magazine at 
Williamsburg, Tyler, with young Harrison, a son of Benjamin 
of " Berkeley," enrolled a number of gallant young men, and 
marched at their head to the capital, where Henry, at the head of 
his Hanover company, had just arrrived. On the establishment 
of the Constitution in 1776, he was appointed by the Convention 
to the office of Commissioner of Admiralty, the duties of which 
he discharged throughout the war ; 20 * and when the first elections 
for the Senate under the new Constitution were held, he was a 
candidate, and published an address to the people which is still 
extant, and which is worthy of note as the first communication 
addressed to the voters of Virginia that ever appeared in print. 205 
He soon after entered the House of Delegates, and in 1782, and 
again in 1783, he was elected Speaker, having been nominated 
by Henry. In 1789 he was elected a judge of the general 
court, and f .scharged for twenty years that laborious and respon- 
sible office. In 1808 he was elected Governor, but, as his health 
suffered from his residence in Richmond, he accepted, near the 
end of his second term, the office of judge of the Federal dis- 
trict court. This appointment had in his eyes a peculiar signifi- 
cancy. It was as a judge of Admiralty, entering on the office the 
very day the first Constitution of Virginia took effect, and five 
years before the Articles of Confederation were adopted, that 
he began his public career ; and it was in the discharge of the 

204 The Virginia Gazette of July 5, 1776, announced the appointment 
of John Tyler, James Hubard, and Joseph Prentis, as Commissioners 
of Admiralty. 

205 Virginia Gazette, July 26, 1776. Tyler lost his election. 



250 VIRGINIA CONVENTION OF 1788. 

% 

duties of, practically, the same office under the Federal Consti- 
tution that now in his old age he was destined to end it. He re- 
sided at " Greenway," his estate on the banks of the James; and it 
not unfrequently happened that prize cases not admitting of delay 
were brought by the parties for adjudication to his house ; and 
on one bright morning of the summer of 1812, in the shade of a 
wide-spreading willow that grew in his yard, and in the presence 
of the Marshal of the United States and of the mate and some 
of the crew, he adjudicated the first prize case that occurred in 
the war of 1812, that of the ship Sir Simon Clarke. The case 
was clear and was soon decided, and the parties, having declined 
a cordial invitation to dine with the judge, went their way. 
When he returned to his family, his first words were " That 
proud nation which has so long made war upon our commerce, 
will soon come to know that the war is no longer altogether on 
one side." But his time was now come. On the sixth day of 
February, 1813, in the sixty-filth year of his age, he breathed 
his last, and was buried at " Greenway" by the side of his wife, 
who had died some years before. 206 The ruling passion of the 
patriot who had witnessed the sufferings endured in the Revo- 
lution, was strong to the last. During his last illness his mind 
dwelt upon the war then raging with Great Britain, which he 
regarded as the second war of independence with our ancient 
foe ; and but a short time before his death he raised his head 
from his pillow and said, " I could have wished to live to see 
again that haughty nation humbled before America; but it is 
decreed otherwise, et nunc dimittas, Domine /" 

But the chief distinction of this worthy patriot was derived 
from his career in the House of Delegates. Throughout that, 
protracted and perilous period, reaching from the Declaration of 
Independence to the adoption of the present Federal Constitu- 
tion, he was foremost in meeting the difficult and perplexing 
questions of the times, and by his intrepidity, by his knowledge 
of affairs, by his sound judgment, by a ready and robust elo- 
quence, sustained in the public councils the cause of his country. 
Indeed, it is to his great honor that, in the decision of the nu- 
merous and delicate questions which arose during the war and 
subsequently, and which created acrimonious and lasting divi- 



206 Mrs. Tyler was Mary Armistead, of the county of York. 



VIRGINIA CONVENTION OF 1788. 251 

sions in the State, he embraced those views of finance, of public 
credit, of domestic and foreign policy, which those who now re- 
gard them at the distance of seventy years would pronounce to 
be the wisest and the best. It was in the session of 1786, how- 
ever, that he performed an act which, if the other deeds of his 
long and patriotic course were forgotten, would stamp immor- 
tality upon his name. He offered, in the House of Delegates, 
and sustained by his eloquence, that ever memorable resolution 
convoking the Convention at Annapolis, which ultimately led to 
the assembling of the General Convention that formed the 
present Federal Constitution. 

There were points of connection between John Tyler and the 
venerable statesman who was his colleague from Charles City in 
the Convention, that attracted the attention of our fathers, and 
are not without interest in our own age. Benjamin Harrison 
was born in Charles City ; had sprung from a wealthy family in 
the Colony; had extensive connections which were then deemed 
almost essential to the success of a rising politician, and had 
been a leading member of the House of Burgesses when Tyler 
was a boy. Tyler was born in the neighboring county of James 
City; had in early manhood settled in Charles City; had en- 
gaged in the practice of the law, and had by his open and honor- 
able conduct acquired the esteem of the people. He was regularly 
returned to the House of Delegates, and had been frequently 
elected Speaker. Harrison, who had held a seat in the House 
of Burgesses for near thirty years, was often elected by the As- 
sembly to a seat in Congress, and was compelled, in pursuance 
of an Act passed in 1777, to vacate his seat in the House of Dele- 
gates during his term of service in Congress. 207 At the expira- 
tion of his term in Congress he was always a candidate for a seat 
in the House of Delegates, and, from his position as one of the 
oldest members of the House of Burgesses as well as of Con- 
gress, and as Governor of the Commonwealth, his valuable ser- 
vices, and his reputation as a presiding officer, was usually 
elected Speaker of that body. Thus insensibly there grew up, 
rather among the neighbors of these gentlemen than between 



207 Until the passage of this Act the members of Assembly, when 
elected to Congress, always retained their seats, and when Congress 
was not in session attended to their duties in the Assembly. 



252 VIRGINIA CONVENTION OF 1788. 

themselves, a kind of rivalry, as it was known that, on the elec- 
tion of both to the House of Delegates, a contest would occur 
between them for the chair. The result was that on one occa- 
sion Harrison ousted Tyler from the chair which he had held at 
the previous session, and on another Tyler returned the compli- 
ment by ousting Harrision from his seat in the House, who, 
however, resolved not to be outdone, crossed over to the county 
of Surry, and was immediately returned from that county to the 
House. There was one ground held in common by these wor- 
thy patriots, and which justly entitled them to the public esteem 
their unwavering patriotism in times of trial. Harrison, by long 
and arduous service in Congress as well as in our State councils, 
and Tyler, by his equally efficient service in the House of Dele- 
gates, conferred lasting benefits upon their country. Harrison, 
as chairman of the Committee of the Whole, had reported to 
Congress the resolution which dissolved the connection between 
the Colonies and Great Britain, and the Declaration of Inde- 
pendence; Tyler, as we have before observed, offered, and suc- 
ceeded in carrying through the House of Delegates, the resolu- 
tion which may be said to have laid the foundation of the present 
Federal Constitution. And, as if the connection between them 
should be continued and refreshed in the memory of succeeding 
times, each had a son who, under that Constitution which their 
fathers had united in opposing with all their eloquence on the 
floor of the present Convention, became the Chief Magistrate 
of the Union. 

Tyler belonged to that class of statesmen who honestly believed 
that the government of Virginia was, in respect both of domestic 
and foreign policy, the safest and the best for the people of Vir- 
ginia. Hence he was one of the most open and most fearless 
opponents of the new scheme. He had loved Virginia when 
she was the free dominion of a constitutional king ; but he loved 
her with redoubled affection when she became, partly by his own 
efforts, an independent Commonwealth. Like Henry, he deemed 
the word country applicable only to the land of his birth. 208 
That the slightest tax should be levied upon the people by any 



208 Henry always used the word "country" only in connection with 
Virginia. See the Debates passim, and his letter to R. H. Lee in the 
''Henry Papers," quoted in the discourse of the Virginia Convention 
of 1776, page 141, note. 



VIRGINIA CONVENTION OF 1788. 253 

other authority than that of the General Assembly ; that a collec- 
tor appointed by any other power should stalk among the home- 
steads of Virginia and gather a tribute which was not to find its way 
into her exchequer ; that Virginia ships, as they passed his door 
bound on a foreign voyage, should carry any other flag than that 
which in a day of doubt and dread he had seen when it was first 
hoisted above the Capitol at Williamsburg ; that under any con- 
ceivable complication of affairs Virginia should be required in a 
time of profound peace to surrender without limitation or qualifi- 
cation to a foreign government the power of the purse and the 
power of the sword, presented to his mind an idea so revolting 
to his sense of honor that he was more disposed to denounce it 
as a scheme of treason than to approve it as a dictate of patri- 
otism. Yet no man living cherished with greater devotion the 
union of the States. By the union of the States he well knew 
that the common liberty had been secured, and that by the union 
it would best be preserved ; but it was an union of sovereign 
States bound by a few simple and general powers adequate to 
the conduct of foreign affairs that he desired and deemed ample 
enough to attain the end in view. It was a simple league or con- 
federation, competent for a few general purposes, that found favor 
in his eyes. He deemed Virginia fully able to manage her own 
affairs, and he shrunk from a plan of government which, under 
the guise of transacting her foreign affairs more economically 
than she could transact them herself, was endowed with an 
authority as great, in his opinion, as that of the king and Par- 
liament of Great Britain, whose yoke had been but lately over- 
thrown, and paramount to the laws of the States. And he 
opposed the new scheme with the greater boldness, because in 
common with others he had honestly sought to amend the 
Articles of Confederation on some points in which they had 
been found defective, and had taken an active interest in calling 
the General Convention which had, in his opinion, so far tran- 
scended its legitimate office. The severe simplicity of his manners 
and the purity of his life, which recalled the image of Andrew 
Marvel or of Pym, his long and distinguished career in the 
House of Delegates, his unblemished honor as a public man, 
lent an additional force to his opposition. 

But it is as Tyler was when, in his fortieth year, and before he 
had been called to that bench on which he sat for twenty years, 



254 VIRGINIA 'CONVENTION OF 1788. 

he was elected vice-president of the Convention, that we wish to 
present him to the view. There was a gravity in his demeanor 
that became the presiding officer of such an assembly. His 
stature was broad and full, and was nearly six feet in height. A 
large head, which had been bald from his early life ; a large, calm 
blue eye overcast by a massive forehead ; a nose as prominent as 
the beak of an eagle, a firmly set mouth and chin, imparted at 
first sight to his aspect an air of sternness, which was softened by 
a benignant smile and by the courtesy of his manner. He was 
scrupulously neat in his person, and was dressed in a suit of 
homespun ; for he lived at a time when it was the pride of the 
Virginia wife to array her husband throughout in the fabrics of 
her own loom. He had long been familiar with the duties of the 
chair. In fact, he had presided oftener in deliberative bodies 
than with the exception of Harrison any member of the House. 
On taking his seat a motion was made to go into committee, and 
his first act was to call Wythe to the chair. 209 

Corbin, with the remark that the subject of the Mississippi had 
been sufficiently discussed, moved that the committee proceed to 
the discussion clause by clause. Grayson thought that the dis- 
cussion of the day before ought to be renewed. The question of 
the Mississippi was, practically, whether one part of the continent 
should rule the other. Alexander White, then a promising young- 
lawyer from Frederick, and known to our own times as a vene- 
rable judge of the general court, expressed the opinion that the 
discussion of that topic might be postponed until the treaty- 
making power came up in course, and seconded the motion of 
Corbin ; which was agreed to. 

The third section of the first article was then read. Tyler 
hoped that when amendments were brought forward, the mem- 
bers ought to be at liberty to take a general view of the whole 
Constitution. He thought that the power of trying impeach- 
ments, added to that of making treaties, was something enor- 
mous, and rendered the Senate too dangerous. Madison 
answered that it was not possible to form any system to which 
objections could not be made ; that the junction of these powers 



209 A portrait of Judge Tyler, taken mainly from memory, some years 
after his death, is at Sherwood Forest, the residence of his son, the 
ex-President. An obituary from the pen of Judge Roane may be seen 
in the Richmond Enquirer of the 8th or 9th of February, 1813. 



VIRGINIA CONVENTION OF 1788. 255 

might in some degree be objectionable, but that it could not be 
amended. He agreed with Tyler that when amendments were 
brought on, a collective view of the whole system might be taken. 

The fourth and fifth sections of the same article were read, and 
were briefly discussed by Monroe, Madison, and Randolph. 
The sixth section was read, when Henry addressed the com- 
mittee, and was followed by Madison, Nicholas, Tyler, and Gray- 
son, and by Mason and Grayson in reply. The seventh section 
was discussed by Grayson and Madison. 

When the eighth section was read, Charles Clay, of Bedford, 
took the floor. The position and the patriotism of Clay, who 
was one of the three clergymen holding seats in the Convention, 
and who clung to his native country through a long and perilous 
war, maintaining her cause by his fluent and fearless eloquence, 
which is said to have been not unlike that of his illustrious kins- 
man who recently descended to the grave amid the tears of his 
country, 210 merit the remembrance of posterity. He was born 
and educated in the Colony, was ordained by the Bishop of Lon- 
don in 1769, and was immediately installed as rector of St. Anne's 
parish, in the county of Albemarle. Some of his sermons yet 
extant in manuscript have been pronounced by a severe judge 
to be sound, energetic, and evangelical beyond the character of 
the times. During the Revolution, instead of flying his native 
land, he never lost an occasion of exhorting his countrymen to 
prosecute the war with vigor; and on a fast day in 1777, he 
preached at Charlottesville before a company of minute-men a 
sermon which reminds us of that preached on a similar occasion 
seventeen years before by Samuel Davies, and which displays a 
chivalric spirit of patriotism. "Cursed be he," he said, "who 
keepeth back his sword from blood in this war." He protested 
against apathy and backwardness in such a cause; denounced 
" those who would rather bow their necks in the most abject 
slavery than face a man in arms," and implored the people that 
as the cause of liberty was the cause of God, they should plead 
the cause of their country before the Lord with their blood. He 
frequently addressed the British prisoners taken at Saratoga, who 
were cantoned in Albemarle. Removing in 1784 from Albemarle 

210 Bishop Meade thinks that Charles was probably an own cousin of 
Henry Clay. 



256 VIRGINIA 'CONVENTION OF 1788. 

to Bedford, he resided there during the rest of his life. He was 
a large and handsome man, cordial in his manners, fond of 
society, and a most entertaining and instructive companion. He 
was an intimate friend of Jefferson, who owned an estate in Bed- 
ford which he visited; and then these venerable patriots in their 
declining years discoursed of men and things that had long 
passed away. Clay was the first to depart, having died in 1824 
near his eightieth year, and in the midst of his descendants, and 
having survived most of his present associates. 211 His peculiar 
temper was seen in his will. He selected a spot for his grave, 
and ordered a mound of stones to be raised over it ; and this 
monument, now covered with turf, resembles in its full propor- 
tions one of those ancient burrows which were formerly to be 
seen in the low-grounds of some of our mountain streams. 212 

The political principles of Clay were as fixed as his religious. 
The right of taxation he regarded as the greatest of all rights ; 
and he thought that a people who assented to a surrender of that 
right without limitations clearly and unequivocally expressed, 
might possibly retain their freedom, but that freedom would no 
longer be a privilege, but an accident or a concession. Taxa- 
tion, he said, could only be exercised judiciously and safely by 
agents responsible to those who paid the taxes ; and, as this re- 
sult was, in his opinion, impracticable under the new scheme, he 
thought that, in adopting that scheme, we virtually relinquished 
the great object attained by the Revolution. He was probably 
born in Hanover, and in early life may have heard Samuel Da- 
vies, whose noble sermons on Braddock's Defeat, on Religion and 
Patriotism, the Constituents of a Good Soldier, and on the Curse 



211 At the death of Clay in 1824, the members of the Convention then 
living, were Madison, Marshall, Monroe, and John Stuart of Greenbrier, 
Archibald Stuart of Augusta, White of Frederick, Johnson of Isle of 
Wight. 

212 For particulars concerning Clay consult Bishop Meade's valuable 
work on the Old Churches, &c., of Virginia, II, 49. The mound is 
described by the Bishop as being twenty feet in diameter, twelve feet 
high, and neatly turfed. I suppose Clay to have been five and twenty 
at his ordination, which would make him eighty at his death. I am 
indebted to Clay at second-hand through my friend, John Henry of 
" Red Hill," for some interesting incidents of the present Convention, 
which are introduced in their proper place. 



VIRGINIA CONVENTION OF 1788. 257 

of Cowardice, found a counterpart in the animated and daring 
appeals of Clay. Nor is the merit of Clay less, if it be not 
greater, than that of Davies. Davies was a dissenter. He had 
felt the power of the established Church, and had wrestled with 
success against the authority claimed for her by her zealous but 
imprudent defenders. He had no respect for the doctrines of 
passive obedience. He had no respect for kings unless they 
were wise and good men. He was also a Calvinist. He be- 
longed to a sect which had no scruples about drawing the sword 
in defence of civil and religious liberty. In fact, the religion of 
the Sage of Geneva was nearly as militant as the religion of the 
Prophet of Mecca. Of the more than three hundred years 
which had elapsed since John Calvin had, in the midst of a scene 
of unrivaled natural beauty, promulgated to the world the tenets 
of his stern faith, more than two-thirds of the whole had been 
spent by their votaries in contests with principalities and powers, 
and with various fortune. Sometimes they were crushed to the 
earth beneath the heel of the oppressor. Then they rose in 
their terrible strength, and struck the head of the oppressor from 
the block. To revert to times which have no indirect relation 
to our own, Calvinism had nearly overturned the government of 
James the First. It brought his successor to the scaffold, and, 
in the person of one of its truant votaries, seized on the supreme 
power of the State, and made the name of England a terror to 
Europe. Then it sank down, and in its coverts scowled at the 
storm which overwhelmed it, and with it the common morality 
and the common decency in one seemingly irretrievable ruin. 
Then it reared its head once more, grappled with another Stuart, 
drove him into exile, and placed upon the British throne one of 
its truest and ablest defenders. It shook the throne of Louis the 
Fourteenth, and filled Europe with victories, the glory of which 
became a national inheritance. It crossed raging seas, and in 
the New World, amid ice and snow, on a rock-bound coast, 
moored its frail vessels, felled forests, smote the Indian with the 
edge of the sword, reared flourishing republics which vexed the 
most distant seas with their keels, inscribed the names of more 
than one of its votaries on the American Declaration of Inde- 
pendence, and ended one great cycle of its destiny. Then it 
fell asleep in its strongholds, until Geneva and Edinburgh and 
Boston, forgetting sits three-fold tongue, began to utter each a 



258 VIRGINIA CONVENTION OF 1788. 

language of its own. Of this fierce sect, then in its vigor, Da- 
vies was a staunch and most eloquent adherent. Yet, though 
his spirit was ever equal to any emergency, he had only exhorted 
his countrymen to take the field against the public enemies and 
those enemies, the French and the Indians, between whom and 
the Anglo-Saxon race there was a natural, an inveterate, and an 
irreconcilable hostility. Clay, as an individual, if not as a patriot, 
went a step beyond. He belonged to another and a very differ- 
ent family of Christians. He was a priest of the Established 
Church. He was a member of that splendid hierarchy whose 
highest representative was the first peer of the British realm, 
whose bishops sat with equal honor side by side with the heredi- 
tary legislators of Britain, and whose supreme head on earth was 
the king. One of the purest bishops of that Church had laid upon 
him his consecrating hand, and had by a solemn ordination set 
him apart for her service. He was thus bound to the king, not 
only by those tender ties of veneration and love which bound 
our fathers to the House of Hanover as the great political bul- 
wark of Protestant Christianity, but by those no less formidable 
ties which bound a priest to his ecclesiastical superior. But the 
intrepid spirit of Clay did not hesitate for an instant to sunder 
all political and religious connection with a king who sought to 
enslave Virginia. He stood on a platform too elevated for most 
of his clerical brethren ; and when the cloud of war had burst, 
and the sun of a new day had risen, and men could look quietly 
around them, it was seen that he stood almost alone. 213 He was 
in his forty-fourth year, and, although fluent and undaunted in 
debate, he wisely resigned the office of discussion to the able 
men whose whole lives had been spent in political affairs, and 
rarely rose unless to make some pertinent inquiry ; and, as it 
was observed by a learned jurist, that Dirlton's Doubts were 
more certain than the certainties of other people, so it was re- 
marked that Clay's questions had often the effect of an argument 
enforced by a regular speech. He now rose to inquire why Con- 
gress was to have power to provide for calling forth the militia 
to put the laws of the Union into execution. 

213 Bishop Meade states that of the ninety-one clergymen at the be- 
ginning of the war, not more than twenty-eight appeared at its close. 
Among the clerical representatives of the Established Church in the 
field were Colonel Thurston and Major-General Mecklenburg. 



VIRGINIA CONVENTION OF 1788. 259 

Madison explained and defended the clause, and was followed 
by Mason, who denounced it as not sufficiently guarded, in an 
able harangue, which called forth an elaborate reply from Madi- 
son. Clay was not satisfied with the explanations of Madison. 
" Our militia," he said, "might be dragged from their homes 
and marched to the Mississippi." He feared that the execution 
of the laws by other than the civil authority would lead ulti- 
mately to the establishment of a purely military system. Madison 
'rejoined, and was followed by Henry, who exhorted the opponents 
of the new scheme to make a firm stand. "We have parted,'' 
he said, " with the purse, and now we are required to part with 
the sword." Henry spoke for an hour, and was followed by 
Nicholas and Madison in long and able speeches. Henry replied, 
and was followed by Madison and Randolph. Mason rejoined 
at length, and was followed by Lee, who threw with much dex- 
terity several pointed shafts at Henry. Clay rose evidently under 
strong excitement. He said that, as it was insinuated by a gen- 
tleman (Randolph) that he was not under the influence of com- 
mon sense in making his objection to the clause in debate, his 
error might result from his deficiency in that respect ; but that 
gentleman was as much deficient in common decency as he was 
in common sense. He proceeded to state the grounds of his 
objection, and showed that in his estimation the remarks ol the 
gentleman were far from satisfactory. Madison rejoined to Clay, 
and passing to the arguments of Henry, spoke with great force 
in refuting them. Clay asked Madison to point out the instances 
in which opposition to the laws did not come within the idea of 
an insurrection. Madison replied that a riot did not come within 
the legal definition of an insurrection. After a long and ani- 
mated session the committee rose, and the House adjourned. 

On Monday, the sixteenth day of June, Pendleton appeared 
and resumed the chair. The House went into committee, Wythe 
in the chair, the eighth section of the first article still under con- 
sideration. Henry rose and reviewed the previous sections, and 
was followed in detail by Madison. Mason then spoke, and was 
followed by Madison and Corbin. Marshall replied to a speech 
delivered the day before by Grayson, who rejoined. Henry rose 
in reply, and Madison rejoined. Mason replied to Madison, and 
was answered by Nicholas. A prolonged debate ensued, in 
which Grayson, Nicholas, Mason, Madison, Lee, Pendleton, and 



260 VIRGINIA CONVENTION OF 1788. 

Henry took part. The day closed with a passage between 
Nicholas and Mason, Nicholas affirming that the Virginia Bill of 
Rights did not provide against torture, and Mason proving to the 
conviction of Nicholas that it did. The House then adjourned. 214 

On Tuesday, the seventeenth day of June, a subject to which 
recent developments in the South have added a present interest, 
came up for consideration. As soon as the House went into 
committee, Wythe in the chair, the first clause of the ninth sec- 
tion of the first article was read. That clause is in these words : 
' ' The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the year one thousand eight 
hundred and eight ; but a tax or duty may be imposed on such 
importation not exceeding ten dollars for each person." 

Mason rose and denounced it as a fatal section, which has 
created more dangers than any other. "This clause," he said, 
"allows the importation of slaves for twenty years. Under the' 
royal government this evil was looked upon as a great oppression, 
and many attempts were made to prevent it ; but the interest of 
the African merchants prevented its prohibition. No sooner did 
the Revolution take place than it was thought of. It was one of 
the great causes of our separation from Great Britain. Its 
exclusion has been a principal object of this State, and most of 
the States of the Union. The augmentation of slaves weakens 
the States ; and such a trade is diabolical in itself and disgraceful 
to mankind. Yet by this Constitution it is continued for twenty 
years. As much as I value the union of all the States, I would 
not admit the Southern States into the Union unless they agreed 
to the discontinuance of this disgraceful trade. And though 
this infamous traffic be continued, we have no security for the 
property of that kind which we have already. I have ever 
looked upon this clause as a most disgraceful thing to America. 

214 It is remarkable that the Virginia Declaration of Rights was always 
spoken of in debate, even by Mason, who drafted it, as the Bill of 
Rights a name appropriate to the British Bill of Rights, which was 
first the Petition of Right, and was then enacted into a law ; but alto- 
gether inapplicable to our Declaration, which had never been a bill, 
and was superior to all bills. It is true that the Declaration of Rights 
was read three times in the Convention which adopted it; but so was 
the Constitution, which nobody would call a bill. 



VIRGINIA CONVENTION OF 1788. 261 

I cannot express my detestation of it. Yet they have not 
secured us the property of the slaves we have already. So that 
' they have done what they ought not to have done, and have left 
undone what they ought to have done.' ' 

Madison made answer that he should conceive this clause im- 
politic, if it were one of those things which could be excluded 
without encountering great evils. The Southern States would 
not have entered the union without the temporary permission of 
that trade. And if they were excluded from the union, the con- 
sequences might be dreadful to them and to us. We are not in 
a worse situation than before. That traffic is prohibited by our 
laws, and we may continue the prohibition. Under the Articles 
of Confederation it might be continued forever. But by this 
clause an end may be put to it in twenty years. There is, there- 
fore, an amelioration of our circumstances. A tax may be laid 
in the mean time ; but it is limited, otherwise Congress might 
lay such a tax as would amount to a prohibition. " From the 
mode of representation and taxation," continued Madison, "Con- 
gress cannot lay such a tax on slaves as will amount to manu- 
mission. Another clause secures us that property which we now 
possess. At present, if any slave elopes to any of those States, 
he becomes emancipated by their laws. For the laws of the 
States are uncharitable to one another in this respect. But in 
this Constitution ' no person held to service or labor in one 
State under the laws thereof, escaping into another, shall, in con- 
sequence of any law or regulation therein, be discharged from 
any such service or labor; but shall be delivered up on claim of 
the party to whom such service or labor may be due.' This 
clause was expressly inserted to enable owners of slaves to re- 
claim them. No power is given to the general government to 
interpose with respect to the property in slaves now held by the 
States." " I need not," he said in concluding, " expatiate on this 
subject. Great as the evil of this clause is, a dismemberment of 
the union would be worse. If those Southern States should dis- 
unite from the other States for not indulging them in the tem- 
porary use of this traffic, they might solicit and obtain aid from 
foreign powers." 

Tyler warmly enlarged on the impolicy, iniquity, and disgrace- 
fulness of this wicked traffic. He thought the reasons urged by 
gentlemen in support of it were ill-founded and inconclusive. It 



262 VIRGINIA CONVENTION OF 1788. 

was one cause of the complaints against British tyranny that 
this trade was permitted. His earnest desire was that it should 
be handed down to posterity that he had opposed this wicked 
clause. He also contended that as, according to the admission 
of Madison, Congress would have had power to abolish the 
traffic but for the restriction, and as no express power so to do 
was contained in the Constitution, then it followed that the dis- 
cretion of Congress was its rule of authority, and that the neces- 
sity of a bill of rights was indispensable. Madison rejoined, and 
was followed by Henry, who enforced at length the argument 
advanced by Tyler, and urged in eloquent terms the absolute 
necessity of a bill of rights. He denied that Madison had shown 
the security of our slave property. The argument of Madison, 
he said, was no more than this that a runaway negro could be 
taken up in Maryland or in New York. This could not prevent 
Congress from interfering with that kind of property by laying a 
grievous and enormous tax upon it, so as to compel owners to 
emancipate their slaves rather than pay the tax. He feared that 
this property would be lost to this country. Nicholas replied to 
Henry with peculiar tact, showing the inconsistency of those 
who with one and the same breath blamed the Constitution for 
allowing the introduction of slaves for a limited period, and for 
not protecting the very interest which it allowed to increase for 
twenty years. He urged that it was better to have this clause and 
union, than disunion without it. He also contended that the ratio 
of taxation was fixed by the Constitution; and that as the people 
were now reduced to beggary by the taxes on negroes, so by the 
adoption of the Constitution which exempts two-fifths, the taxes 
would rather be lightened than rendered more oppressive. He 
intimated an inconsistency in the arguments urged by gentlemen 
here and those offered in the House of Delegates at a previous 
period. 

The second, third, and fourth clauses of the ninth section were 
now read. 215 Mason said that the restriction in the fourth clause 
of the capitation tax was nominal and deceptive. It only meant 
that the quantum to be raised of each State should be in pro- 
portion to their numbers in the manner directed in the Consti- 

215 Concerning the writ of habeas corpus, bills of attainder, and ex 
post facto laws, and the capitation and direct tax. 



VIRGINIA CONVENTION OF 1788. 263 

tution. But the general government was not precluded from 
laying the proportion of any particular State on any one species 
of property. They might lay the whole tax on slaves, and anni- 
hilate that species of property. The security was extended only 
to runaway slaves. Madison replied that the Southern States in 
the Convention were satisfied with the protection accorded by 
the Constitution; that every member of that body desired an 
equality of taxation, which uniformity could not secure; that 
some confidence must be placed in human discretion, or civil 
society could not exist; and that five States were permanently 
interested in the security of slave property, and other States in 
a greater or less degree. 

The fifth and sixth clauses of the ninth section were read. 216 
Mason thought the expression " from time to time" was loose. 
It might refer to triennial or septennial periods. Lee objected to 
such remarks as trivial. He wished gentlemen would confine 
themselves to an investigation of the principal parts of the Con- 
stitution, as the Assembly was about to meet the coming week. 
Mason begged to be allowed to use the mode of arguing to 
which he had been accustomed. However desirous he was of 
pleasing that worthy gentleman, his duty would give way to that 
pleasure. Nicholas, Corbin, and Madison replied to Mason, who 
still insisted on the vagueness of the words "from time to time," 
and said that in the Articles of Confederation a monthly publi- 
cation was required. 

The seventh clause of the ninth section, which prohibits titles 
of nobility from being granted by the United States, or the public 
officers accepting presents from foreign powers without the con- 
sent of Congress, was now read. Henry said he considered 
himself at liberty to review all the clauses of the ninth section 
of the first article. He said that this seventh section was a sort 
of bill of rights to the Constitution, and, by comparing it in 
detail with the Virginia Bill of Rights, argued that it was wholly 
inefficient. He concluded by saying that if gentlemen thought 
that this section would secure their liberties, then he and his 
friend (Mason) had spoken in vain. Randolph followed in an 

216 No tax or duty to be laid on articles exported from any State, or 
preference shown by any regulation ; no moneys to be drawn from the 
treasury but by appropriations, and a regular statement published from 
time to time, &c. 



264 VIRGINIA 'CONVENTION OF 1788. 

elaborate review of the ninth section, and in reply to Henry. 
On the sweeping clause he thus spoke : " The rhetoric of the 
gentleman has highly colored the dangers of giving the gen- 
eral government an indefinite power of providing for the gen- 
eral welfare. I contend that no such power is given. They 
have power ' to lay and collect taxes, duties, imposts, and ex- 
cises, to pay the debts and provide for the common defence and 
general welfare of the United States.' Is this an independent, 
separate, substantial power to provide for the general welfare ? 
No, sir. They can lay and collect taxes for what ? To pay 
the debts and provide for the general welfare. Were not this 
the case, the following part of the clause would be absurd. It 
would have been treason against common language. Take it 
altogether, and let me ask if the plain interpretation be not this : 
a power to lay and collect taxes, etc., in order to provide for the 
general welfare and pay debts." 

In his remarks upon the clause which forbids public officers 
from receiving presents from foreign powers, he observed that 
" an accident which actually happened operated in producing 
that restriction. A box was presented to our ambassador by the 
king of our allies. It was thought proper, in order to exclude 
corruption and foreign influence, to prohibit any one in office 
from receiving or holding any emoluments from foreign States. 
I believe that if at that moment, when we were in harmony with 
the king of France, we had supposed that he was corrupting our 
ambassador, it might have disturbed that confidence and dimin- 
ished that mutual friendship which contributed to carry us through 
the war." 317 

In reply to an objection of Henry that the trial by jury was 
unsafe, he showed that it was secured in criminal cases, and that 
in civil cases, as there was then great contrariety in the practices 
of the different States on this subject, the matter was wisely 

217 Dr. Franklin is the person alluded to by Randolph. In the winter 
of 1856, in Philadelphia, under the roof of a venerable granddaughter 
of Dr. Franklin, I saw the beautiful portrait of Louis XVI, snuff-box 
size, presented by that king to the doctor. As the portrait is exactly 
such as is contained in the snuff-boxes presented by crowned heads, 
one of which I have seen, it is probable this portrait of Louis was ori- 
ginally attached to the box in question, which has in the lapse of years 
been lost or given away by Franklin. 



VIRGINIA CONVENTION OF 1788. 265 

referred to legislation ; and in reply to another objection of that 
gentleman, that the common law was not established by the 
Constitution, he argued that "the wisdom of the Convention 
was displayed by its omission, because the common law ought 
not to be immutably fixed. It is established, not in our own Bill 
of Rights or in our State Constitution, but by the Legislature, 
and can therefore be changed as circumstances require. If it 
had been established by the new Constitution, it would be in 
many respects destructive to republican principles. It would 
have revived the writ for burning heretics, and involved other 
absurdities equally enormous. But it is not excluded, It may 
be established by the Legislature with such modifications as the 
public convenience and interests may hereafter prescribe." 

Henry lamented that he could not see with that perspicuity 
which other gentlemen were blessed with. 

The first clause of the tenth section, which prevents a State 
from entering into any treaty or alliance with a foreign power, or 
granting letters of marque or reprisal, or coining money, or 
making anything but gold and silver a tender in payment of debts, 
or passing any bill of attainder, ex post facto law, or any law im- 
pairing the obligation of contracts, or of laying, without the 
consent of Congress, any imposts or duties on imports or ex- 
ports, except what might be absolutely necessary for executing 
its inspection laws, etc., etc., was read. Henry regarded with 
concern these restrictions on the States. They may be good in 
themselves ; but he feared the States would be compelled by 
them to pay their share of the Continental money shilling for shil- 
ling. There had been great speculations in Continental money. 
He had been informed that some States had collected vast quan- 
tities of that money, which they should be able to recover in its 
nominal value of the other States. Madison admitted that there 
might be some speculation on the subject, and believed that the 
old Continental money had been settled in a very disproportion- 
ate manner. But the first clause of the sixth article settled this 
matter. That clause provided that all debts and engagements 
entered into before the adoption of the Constitution shall be as 
valid as under the Confederation. He affirmed that it was 
meant there should be no change with respect to claims by this 
political alteration. The validity of claims ought not to dimin- 
ish by the adoption of the Constitution. It could not increase 



266 VIRGINIA CONVENTION OF 1788. 

the demands on the public. Mason said that there had been 
enormous speculations in Continental money, in the hope of re- 
covering shilling for shilling. The clause was well enough as 
far as it went. The money had depreciated a thousand for one. 
The old Congress could settle this matter. The hands of Con- 
gress were -now tied. Under the new scheme we must pay it 
shilling for shilling, or at least one for forty. Madison made an- 
swer that the question as to who were the holders of the money 
was immaterial; it could not be affected by the Constitution, 
which made all claims as valid as they were before, and not more 
so. Henry replied that he saw clearly that we would be com- 
pelled to pay shilling for shilling. No ex post facto law could be 
passed by Congress or by the States, and there could be no re- 
lief. He instanced the case of relief by the Assembly from the 
payment of British debts. The State could be sued in the Fed- 
eral court. Barrels of paper money had been hoarded at the 
North. There could be no relief. Judgment will be given 
against you, and the people will be ruined. Nicholas said that 
Virginia could make no law affecting the value of Continental 
money. So the case will stand hereafter as it does now. He 
denied that Congress could be sued by speculators. Congress 
may be plaintiff, but not defendant in her own courts. Randolph 
urged the restriction concerning ex post facto laws had no rela- 
tion to the case at all; that the term was technical, and applied 
only to criminal cases. He said that the British debts, which 
were held contrary to treaty, ought to be paid. The payment 
might press the country, but we should retrench our extravagance 
and folly. He denied that private benefit affected his views, as, 
unless reduced very low indeed, he should never feel the benefit 
of the payment. Madison rose to quiet the fears which had 
been raised by Henry. Strike out the clause altogether, he said, 
and the case would stand just as it does now. As for the ruin 
threatened by the payment of debts, the original amount was 
only one hundred millions, of which some had been destroyed- 
But before it was destroyed, the share of Virginia was only 
twenty-six millions, which, at forty for one, amounted to five 
hundred thousand dollars only. Mason was still of his former 
opinion. Had three words been added after the words ex post 
facto, confining those words to crimes, then the position of those 
debts would be the same hereafter as now. Randolph replied 



VIRGINIA CONVENTION OF 1788. 267 

that ex post facto laws applied exclusively to criminal cases ; that 
such was the meaning of the words in interpreting treaties, and 
it was so understood by all civilians. 

The next clause of the section concerning the inspection laws 
was read, and was discussed by Mason, Nicholas, and Madison. 

The first clause of the first section of the second article, which 
provides that the executive power shall be vested in a President 
of the United States of America, who shall hold his office during 
the term of four years, and, together with the Vice-President, 
chosen for the same term, be elected as follows, was then read. 
Mason said that there was not a more important article in the 
Constitution than this. The great fundamental principle of 
republicanism is here sapped. The President is elected without 
rotation. It is said that you may remove him by a new election, 
but is there a single instance of a great man not being re-elected? 
Our governor is obliged to return after a given period to a pri- 
vate station. Your President is in office for life. The great 
powers of Europe will not allow you to change him. The peo- 
ple of Poland have a right to displace their king; but will Rus- 
sia and Prussia allow them ? He may receive a pension from 
European powers. One of those powers, since the Revolution, 
offered emoluments to persons holding offices under our govern- 
ment. I should be contented that he might be elected for eight 
years. As it now stands, he may be elected for life. Your 
government will be an elective monarchy. The gentleman (Ran- 
dolph), my colleague in the late Convention, says not a word 
about those parts of the Constitution which he denounced. He 
will excuse me for repeating his own arguments against this dan- 
gerous clause." Randolph thought that he had mentioned his 
objections with freedom and candour ; but he believed that the 
Constitution, in the present state of affairs, ought to be adopted 
as it stands. He had changed his opinion on this clause, be- 
lieving that the hope of a re-election would stimulate the incum- 
bent to direct his attention to his country instead of his own 
private gains. The President was excluded from receiving 
emoluments from foreign powers. It was impossible to guard 
better against corruption. 

Mason said that the Vice-President was not only an unneces- 
sary but a dangerous officer; that the State from which he comes 
may have two votes when the others have but one ; that he 



268 VIRGINIA CONVENTION OF 1788. 

blended in his person executive and legislative functions ; that 
though he could not foresee in the distance of time the conse- 
quences of such an appointment, he feared he would become a 
tool in overturning the liberties of his country. He objected 
that as the Vice-President was to succeed the President in certain 
contingencies, and as there was no provision for a fresh election 
of a President, it would be the interest of the Vice President to 
postpone or prevent an election. Perhaps, he said, he might be 
mistaken. Madison replied that there were some peculiar advan- 
tages incident to this office, that he would probably come from 
one of the larger States, and his vote so far would be favorable ; 
that he approved the fact that he would be the choice of the peo- 
ple at large, as it was better to confer this power on a person so 
elected than on a senator elected by a single State ; that he also 
approved of the power which authorized Congress to provide 
against the death of the President and the Vice-President, and he 
saw that such an event would rarely occur, and that this power, 
which was well-guarded, kept the government in motion. The 
House then adjourned. 

On Wednesday, the eighteenth of June, the House went into 
committee, Wythe in the chair, the first section of the second 
article still under consideration. Monroe addressed the com- 
mittee at some length, contending that our circumspection in 
politics should be commensurate with the extent of the powers 
granted ; that the President ought to act under the strongest 
impulses of rewards and punishments, the strongest incentives to 
human actions; that there were two ways of securing this 
point dependence on the people for his appointment and con- 
tinuation in office, and responsibility in an equal degree to all 
the States, and trial by dispassionate judges. He proceeded to 
show in detail that these objects were not secured by the section 
under discussion, and declared that the person first elected might 
continue in office for life. He argued that the United States 
might become the arbiter between foreign powers ; that vast 
territories belonging to foreign powers adjoined our own, and 
that the continuance of an individual in office might be important 
to their purposes, and that corruption would ensue. He opposed 
the office of Vice-President as unnecessary, and as justly amen- 
able to the objections urged by Mason. Grayson followed, and in 
an argument of uncommon ingenuity opposed the clause. He 



VIRGINIA CONVENTION OF 1788. 269 

said that if we adverted to the democratic, aristocratical, or ex- 
ecutive branch of this new government, we would find their 
powers perpetually varying and fluctuating throughout the 
whole ; that the democratic branch could be well constructed but 
for this defect ; that the executive branch was still worse in this 
respect than the democratic ; that the President was to be elected 
by a majority of electors, but that the principle was changed in 
the absence of that majority, when the election was to.be decided 
by States. He pointed out the probability of the interference 
of foreign powers, and instanced in detail the case of Sweden ; 
and adverted to the motives which might govern France and 
England in seeking to influence the election of President. He 
sought to demonstrate the want of responsibility in the Presi- 
dent; and showed by an elaborate calculation that he might be 
elected by seventeen votes out of the whole number of one hun- 
dred and thirty-nine. Mason followed in corroboration of the 
views of Grayson. He said that it had been wittily remarked 
that the Constitution married the President and the Senate ; and 
he believed that the usual results of marriage would follow 
they would be always helping one another. There could be no 
true responsibility in such a case. He referred to the trial of 
Milo at Rome, when the court was bristling with the myrmidons 
of the executive. Your President, he said, might surround the 
Senate with thirty thousand armed men. 

Madison rose and encountered the opposition with more than 
his usual tact. He did not object to some of the opinions which 
had been advanced in detail ; that the mode of electing the Pres- 
ident created much difficulty in the general Convention ; that 
gentlemen who opposed the mode prescribed by the Constitu- 
tion had suggested no mode of their own ; that it was the result 
of a compromise between the large and the small States, the 
large States having the opportunity of deciding the election in 
the first instance, and the small States in the last ; that the gen- 
tleman last up erred in saying that there must be a majority of 
the whole number of electors appointed ; .arid that a majority of 
votes, equal to a majority of the electors appointed, will be suf- 
ficient. Mason replied and Madison rejoined. 

The first clause of the second section of the second article, 
which provides " that the President shall be commander-in-chief 
of the army and navy of the United States, and of the militia of 



270 VIRGINIA CONVENTION OF 1788. 



the several States, when called into the actual service of the 
United States," &c., was read. Mason did not object to the 
President's being the official head of the army and navy, but 
thought that he ought to be prohibited from commanding in 
person without the consent of Congress. He reminded the com- 
mittee of what Washington could have done, if to his great abil- 
ities and popularity he had added the ambition of the mere 
soldier. He did not disapprove of the President's consulting 
the executive officers, but he denounced the absence of a regular 
and responsible council. He thought the President ought not 
to have an unrestricted liberty of pardoning, as he might pardon 
crimes perpetrated by his own advisement ; and he should be 
expressly debarred from granting pardons before conviction. 
" It may happen," he said, " at some future day, he may destroy 
the republic and establish a monarchy." Lee observed that it 
did not follow that the President would command in person. He 
thought the pardoning power wisely lodged in the President. 
The experience of New York was in favor of the plan. Mason 
observed that he did not mean that the President was of necessity 
to command in person, but that he might do so when he pleased, 
and that if he were an ambitious man, he might make a dan- 
gerous use of his position. Nicholas reminded the committee 
that the army and navy were to be raised, not by the President, 
but by Congress. The arrangement was the same in our State 
government, where the governor commanded in chief. As to 
possible danger, any commander might pervert what was intended 
for the public safety. The President went out every four years. 
Any other commander might have, a longer term of office. 
Mason denied that there was a resemblance between the Presi- 
dent and the governor. The latter had very few powers, went 
out every year, and had no command over the navy. He was 
comparatively harmless. The danger of the President consisted 
in the union of vast civil, military, and naval powers in a single 
person, without proper responsibility and control. The public 
liberty had been destroyed by military commanders only. Mad- 
ison, adverting to Mason's objections to the pardoning power 
being given to the President, said it would be extremely improper 
to vest that power in the House of Representatives. Such was 
the fact in Massachusetts, and it was found in the case of the late 
insurgents that the House at one session was for universal ven- 



VIRGINIA CONVENTION OF 1788. 271 

geance, and at another for general mercy. He said one great 
security from the malfeasance of the President consisted in the 
power of impeaching and of suspending him when suspected. 
Mason replied that the seeming inconsistency of the Massachusetts 
House of Representatives was sound policy. It was wise to 
punish pending the rebellion, and to pardon when it was past. 
Madison rejoined that it so happened that both sessions of that 
House had been held after the rebellion was over. 

The second clause of the second section of the second article, 
which empowers the President by and with the advice and con- 
sent of the Senate to make treaties, provided two-thirds of the 
Senators present concur, to nominate and, by and with the advice 
and consent of the Senate, to appoint ambassadors, other public 
ministers and consuls, judges of the Supreme Court, and all other 
officers of the United States, with certain restrictions, was read. 
Mason thought this a most dangerous clause. Five States could 
make a treaty. Now nine States were necessary. His principal 
fear, however, was not that five, but that seven States, a bare 
majority, would make treaties to bind the Union. Nicholas 
answered that we were on a more safe footing in this Constitution 
than under the Confederation. The possibility of five States 
forming a treaty was founded on the absence of the Senators 
from the other States. The absence would be reciprocal. It 
may be safely presumed that in important cases there would be a 
full attendance, and then nine States would be necessary. He 
thought the approbation of the President, who was elected by all 
the States, was an additional security. Mason differed widely 
from the gentleman. He conceived that the contiguity of some 
States and the remoteness of others would present that reciprocity 
to which Nicholas alluded. Some States were near ; others were 
nine hundred miles off. Suppose a partial treaty made by the 
President. He has a right to convene the Senate. Is it pre- 
sumable that he would call or wait for distant States whose inte- 
rests were to be affected by the treaty ? Nicholas asked if it was 
probable that the President, who was elected by the people of all 
the States, would sacrifice the interest of the eight larger States 
to accommodate the five smallest ? Lee compared the non- 
attendance of the Senators to that in our own Legislature, which 
consisted of one hundred and seventy members, of whom eighty- 
six were a majority sufficient to form a House ; and of that House 



272 VIRGINIA CONVENTION OF 1788. 

% 

forty-four would make a majority. He asked if all our laws 
were bad because forty-four members could pass them ? Madi- 
son wondered that gentlemen could think that foreign nations 
would be willing to accept a treaty made by collusion. The 
President would instantly be impeached and be convicted, as a 
majority of the States so injured would try the impeachment. 
Henry begged the committee to consider the condition the 
country would be in if two-thirds of a quorum could alienate 
territorial rights and our most valuable commercial advantages. 
The treaty-making power of this new scheme exceeded that of 
any other nation of the earth. Gentlemen were going on in a 
fatal career, but he hoped they would stop before they concede 
this power unguarded and unaltered. Madison said that, instead 
of being alarmed, he had no doubt that the Constitution would 
increase rather than decrease our territorial and commercial 
rights, as it would augment the strength and respectability of the 
country. If treaties are to have any efficacy at all they must be 
the law of the land. He denied that the country could be dis- 
membered by a treaty in time of peace. The king of England 
could make a treaty of peace, but he could not dismember the 
empire or alienate any part of it. The king of France even had 
no such right. The right to make a treaty does not invoke the 
right of dismembering the Union. Henry asked how the power 
of the king of England would stand in respect to dismembering 
the empire if treaties were the supreme law of the land ? He 
would confess his error if the gentleman would prove that the 
power of the king and that of the Congress, as to making treaties, 
were similar. Madison conceived that as far as the king of 
England had a constitutional right of making a treaty, such a 
treaty was binding. He did not say that his power was unlim- 
ited. One exception was that he could not dismember the 
empire. 

Grayson rose and made a brilliant and characteristic speech. 
After pointing out the difference of what was called the laws of 
nations in various countries and its different operations, he ex- 
pressed his alarm at the clause under discussion. He recurred 
to the dangers to which the right of navigating the Mississippi 
would be exposed, by surrendering the power of alienating it to 
the very States which had sought to attain their object by over- 
leaping the existing Constitution. He declared that such was 



VIRGINIA CONVENTION OF 1788. 273 

his repugnance to the alienation of a right so dear to the South, 
so important to its expansion and prosperity, that, if the new 
scheme contained no other defect, he would object to it on this 
ground alone. 

Nicholas, if with less elegance, with equal vigor of logic, re- 
plied to Grayson. He criticised with severity his views respect- 
ing the laws of nations ; represented his arguments derived from 
the risk of losing the navigation of the Mississippi as a renewal 
of the scuffle for Kentucky votes, and argued the power of the 
king of England and of the Congress in respect of the nature of 
treaties was the same. In each country it was equally without 
limit. In each it was, and must ever be, the supreme law of the 
land. If gentlemen can show that the king can go so far, I will 
show them the same limitation here. If, as the gentleman says, 
the weight of power ought to be with the South because we 
have more people here, then these people, who elect the Presi- 
dent, will elect a man who will attend to their interests. This is 
a sufficient check. 

Henry instanced the case of the Russian ambassador in Queen 
Anne's time, to show that there was in England a limit to the 
treaty-making power. The emperor demanded that the man 
who had arrested his ambassador should be given up to him to 
be put to death. Queen Anne wrote with her own hand a letter 
to the emperor, in which she declared that it was beyond her 
power to surrender a British subject to a foreign power. We 
are in contact, he said, with Great Britain and with Spain. It 
is easy to define your rights now. Hereafter, when your citizens 
are charged with violating a treaty, will they have a fair trial ? 
Will the laws of Virginia protect them in a Federal court? He 
denied that the same checks existed in the new scheme as existed 
in England. Can the king violate Magna Charta or the Bill of 
Rights by a treaty ? Even the king of France calls on his par- 
liament to aid him in the making of treaties. When Henry VI 
made a treaty with Sigismund, king of Poland, he submitted it 
to parliament. Here we have only the President and the Senate. 

Randolph availed himself of the concession of Henry, that if 
the treaty-making power were put on as good footing here as in 
England, he would consent to the power, because there the king 
had a limit to his power ; and showed the restraints placed upon 
the President and Senate. Would they seek to overturn the 



274 VIRGINIA CONVENTION OF 1788. 

very government of which they were the creatures ? He defied 
any one to show how the treaty power could be limited. As for 
dismembering a State, the Constitution expressly declares that 
nothing contained therein shall prejudice any claims of the 
United States or of any particular State. The House then ad- 
journed. 

On Wednesday, the eighteenth of June, the House went into 
committee, Wythe in the chair, and the second clause of the 
second section of the second article still under consideration. 
Grayson took the floor. He adverted to the imminent risk of 
losing the Mississippi by the adoption of the clause in debate ; 
showed that the words of the Constitution quoted by Randolph 
as a protection to the territorial rights of the States applied ex- 
clusively to the titles held by the different States to the back 
lands ; and replied to the arguments of Nicholas in refutation of 
his views of the nature of the law of nations. He laid it down 
as a principle that a nation, like an individual, can renounce any 
particular right, and, to show that the Mississippi might be given 
up, he mentioned the case of the Scheldt which was surrendered 
by the treaty of Munster. Nicholas made an elaborate argu- 
ment to prove that there was no limit to the treaty-making 
power in England, and quoted directly in point the authority of 
Blackstone, who adds that the ministers who advised a bad 
treaty could be punished by impeachment. Here we can im- 
peach the President himself In each country the treaty is the 
supreme law of the land ; but under the new Constitution only 
such treaties are binding as are made under the authority of the 
United States, which authority is bounded by that instrument. 
He argued that the case of the Russian ambassador did not ap- 
ply. It had no relation to a treaty. It was an offence against 
the law of nations, and Great Britain immediately passed an act 
which punished such offences in future committed within her 
own limits. 

Corbin then rose, and in a capital speech, in which he exhibited 
great perspicacity in anticipating the real action of the Federal 
Government, supported the Constitution. He enforced some of 
the arguments urged by Nicholas, and in order to prove that a 
treaty was the supreme law in England, he said he would con- 
firm it by a circumstance fresh in the memory of every body. 
When our treaty of peace was made by England, Parliament 



VIRGINIA CONVENTION OF 1788. 275 

disapproved of it, and the ministry was turned out ; but the 
treaty was good. The great distinction in our favor was that 
while in England the minister only was responsible, here the 
President in person was responsible. Treaties must not be bind- 
ing at all that is, we must have no treaties or they must be 
binding altogether, or the country would be involved in perpetual 
war with foreign powers, and lose all the advantages of commer- 
cial intercourse. He drew a distinction between common and 
commercial treaties. By the first, if territory was dismembered, 
the people of Kentucky, for instance, would be justified by the 
laws of nations in resisting the treaty ; by the last, the House of 
Representatives would act, because of the necessity of the pas- 
sage of laws adapted to the state of the case. He said that the 
treaty-making power was amply guarded. If we are told that 
five States can make a treaty, we answer that three States can 
prevent it from being made. If the whole twenty-eight members 
are present, and, as men are apt to attend to their interests, it is 
fair to presume that they will be, then it will require nineteen 
to make a treaty, which is one member more than the nine 
States required by the Confederation, Henry said that the gen- 
tleman had fallen, unconsciously he knew, into an error when 
he said that the treaty of peace was binding on the nation though 
disapproved by Parliament. Did not an act pass acknowledging 
the independence of America ? No cession of territory is bind- 
ing in England without the authority of an act of Parliament. 
Will it be so here? They will tell you that they are omnipotent 
on this point. 

Madison then pronounced an admirable disquisition on the 
treaty- making power. He showed that this power was exactly 
the same under the Confederation and under the Constitution ; 
that the exercise of this power must always be consistent with 
the object which it was delegated to attain ; that, as this power 
could only be exercised with foreign nations, its objects must be 
external ; that, as it is impossible to foresee all our relations with 
other nations, so it would be imprudent to limit our capacity of 
action in regard to them ; that, in transactions with foreign coun- 
tries, it is fair to presume that we would prefer our own interests 
and honor to theirs, and not wantonly sacrifice the rights of 
our people ; and the minister who negotiates the treaty, who is 
indeed our President, is liable to be punished in person for mal- 



276 VIRGINIA CONVENTION OF 1788. 

feasance. He said the case of the Russian ambassador was not 
applicable to the subject any more than other quotations made 
by the gentleman (Henry). Corbin admitted that an act of Par- 
liament did pass acknowledging the independence of America, 
but said that there was nothing about the fisheries in that act, 
yet that part of the treaty relating to them was binding. 218 

We now approach a theme which, in itself considered, pos- 
sessed an importance in the eyes of our fathers that language 
would vainly attempt to measure, which was discussed with a 
fullness of learning, with a keenness of logic, and with a glow of 
eloquence that it might well elicit, and which, though technical, 
and seen through a vista of seventy years, cannot fail to strike a 
responsive chord in the breasts of every true son and daughter 
of our noble Commonwealth. But, added to its own intrinsic 
dignity, it now received an additional interest derived from the 
state of the contest between the friends and the opponents of the 
Constitution. It was to be the last battle-ground of the parties 
into which the Convention was in nearly equal proportions 
divided, and from which the members were to pass to the final 
vote. 

In reviewing the discussions of the Convention we should not 
forget that the experience of seventy years, derived from a minute 
observation of the workings of a political system, will place a 
child apparently on the same level with a giant, and the merest 
tyro in politics with a Somers or a Mason ; and we should espe- 
cially remember that time was an element in the calculations of 
our ancestors ; that seventy years bears to the life of a nation no 
greater proportion than a single year bears to the life of an indi- 
vidual, and that the fears and gloomy predictions uttered by the 
opponents of the Constitution have, by the vigilance and caution 
which they inspired, operated in a material degree in preventing 
their own fulfillment. As no two complicated political systems 
which were identical in all their relations and circumstances ever 
did or can exist, the wisest statesmen in predicting their opera - 



218 Corbin was probably present in the House of Commons when the 
treaty was under discussion. The lovers of Fox must always deplore 
his unprincipled and factious opposition to the treaty, and the iniqui- 
tous coalition with Lord North, which succeeded in turning out Lord 
Shelburnejfor his approval of the treaty. To this day that coalition 
stands alone in its deformity and in the contempt and scorn of mankind. 



VIRGINIA CONVENTION OF 1788. 277 

tion can only judge from the general experience of the past. 
Hence arguments and analogies, hopes and fears, which seem 
chimerical now, might have had great weight with men who were 
quite as wise and as bold as those who have succeeded them, and 
who were more intimately acquainted with the difficulties of 
their age than it was possible for their successors to be. Another 
great element which pervaded the reasonings both of the friends 
and enemies of the new scheme consisted in the belief that, as 
the State governments, even when they drew a revenue from 
imposts, relied mainly for their support on direct taxation, such 
would also be the case with the Federal Government. The 
immense revenue which has flowed from the customs and from 
the sales of western lands into the Federal treasury, was not fore- 
seen in its full extent by either of the great parties. It is true 
that both looked to a revenue from the customs ; but while the 
ablest statesmen on either side agreed that the revenue from cus- 
toms would increase for a limited period, the friends of the new 
system contended that the period when the increase from that 
source would determine, was not very remote. 219 But the states- 
man who would have ventured to predict that in half a century 
the customs of a single year would equal the amount of the entire 
debt of the Revolution, would have been derided as a vain theo- 
rist, or a wild babbler who sought to mislead other minds by the 
absurd creations of his own. The low rate of duties which the 
principal friends of the Constitution fixed upon as the standard 
for the customs, indicates what was anticipated from that source. 220 
And the result was that both parties looked to direct taxation as 
the source from which the income of the new government would 
accrue. Their arguments were based on this supposition; and it 
can hardly be doubted that, if direct taxation had been the prin- 

219 See a previous debate between Grayson, Madison, and Corbin. 
Grayson argued that the period of decline would be very remote; 
Madison, that the highest point would be reached in less time than that 
specified by Grayson, when the duties would begin to decline. Corbin 
showed by arithmetical calculations that the revenue from the customs 
would immediately become a handsome source of revenue. 

220 Pendleton, as late as 1792, thought five per cent, high enough ; and " 
Grayson thought that two and a half per cent, would, by preventing 
smuggling, put more money into the treasury. Grayson, supra, and 
Pendleton's letter on the tariff. 



278 VIRGINIA CONVENTION OF 1788. 

cipal source of the Federal revenue, and the rate of expenditure 
under the Constitution had been the same, the most dismal vati- 
cinations would have been verified, and the union would scarcely 
have survived a quarter of a century. And it may be safely 
affirmed that the calamities predicted by our fathers have been 
averted, and the union preserved safe to our times, not so much 
in consequence of the provisions of the Constitution, as of the 
source from which the principal revenue has accrued. 

But the prospect which was presented in the year 1788 was 
widely different. The unlimited power of direct taxation was to 
be ceded to the new government, and the Congress was to be 
empowered to pass such laws as might be deemed necessary to 
carry it into effect. And what increased the general anxiety was, 
that those laws were to be enforced by tribunals appointed by 
the Federal authority, responsible to that authority, and wholly 
beyond the reach of the government of the State. The citizen 
who had heretofore looked with confidence to his own General 
Assembly for protection, now, when the land was to be overrun 
with Federal judges, Federal sheriffs, Federal constables, and 
Federal jails, and when he needed that protection most, would 
look in vain. 

From these apprehensions, however, it was possible to escape. 
The citizen who had satisfied the full demands of the Federal 
sheriff, and who was so fortunate as not to owe a dollar, might 
be safe. The dangers which beset that epoch were peculiar to a 
people who had just passed through a revolution of eight years, 
and are not likely to occur again ; but they then presented an 
aspect so fearful as to fill the most dispassionate statesman with 
alarm. These dangers were such that no effort of an individual 
could elude them, and which threatened whole communities with 
ruin. Extensive grants of land, made under the royal govern- 
ment, had been confiscated by the State, and in the lapse of 
twelve years had been purchased and settled by active, indus- 
trious, and brave men, who had encountered the terrors of the 
wilderness, had driven back the savage, had cleared farms, and 
had built homes for their families. Every foot of these lands 
were now in jeopardy. Every farmer in the Northern Neck was 
liable to be dragged into a Federal court, to be evicted from his 
home, and to be cast with his wife and children on the world. 
Every farmer of the valley of Virginia, from the summit of the 



VIRGINIA CONVENTION OF 1788. 279 

Blue Ridge to the summit of the Alleghany, was in equal peril. 
The claims of the Indiana Company, if established by the Federal 
court, would involve thousands of poor, honest, but high-spirited 
men, who had fought gallantly during the war, in total ruin. 
Federal decisions involving such results could only be enforced 
by the bayonet, and civil war, deplorable as it must ever be, was 
one only of the evils that might flow from a resort to arms. 
The Commonwealth might be cut in twain. There might arise 
in the West a new, enterprising, and warlike State, which, sus- 
tained by the valor and skill of the soldiers who had been trained 
in the Indian wars and in the Revolution, and who had made, or 
might make, Kentucky their home, and upheld by the willing 
aid of England in the North and of Spain in the South, would 
not only bid defiance to the laws of the Federal Government, 
but might succeed in confining the boundaries of the States to 
the eastern slopes of the Blue Ridge. Wise statesmen, who saw 
the extent of the public peril, cautiously withheld any open 
expression of their opinions, but sought in private to contravene 
the dreaded calamity as far as was within their power. The 
intensity of a great crisis is not always to be estimated by the 
causes which produced it; and fearful as was, in the opinion of 
many, the surrender of the purse and the sword, the surrender 
of the right of trial involving men's lives and lands seemed more 
fearful still. 

Another topic which created no little anxiety in the minds of 
those who were now to discuss the judiciary department of the 
new system was the payment of the British debts. The pay- 
ment of these debts, estimated at several millions of dollars, 221 
and deemed by many judicious persons a harsh measure in 
itself, might prove a fruitful source of annoyance to the people. 
These debts had been confiscated by the State, had been paid in 
whole or in part into the public treasury, and were claimed by 
foreigners. The debtors might then be brought into a Federal 
court held hundreds of miles from their homes, and forced to 
pay those debts a second time, and in coin. As these debts were 

221 1 have never been able to make up my mind as to the true amount 
of the British debts. Some estimate it at ten millions. If this estimate 
was made on the value of a paper currency before that currency began 
to decline rapidly, it may be not far from the mark. I am disposed to 
think that three millions of dollars in coin would cover the amount. 



280 VIRGINIA CONVENTION OF 1788. 

owed by Eastern men, the subject of the new judiciary had a 
relation to them in this respect alone as delicate and as personal 
as to the people of the West. 

None saw the difficulties of the crisis more distinctly than the 
friends of the Constitution, or could have adopted a safer line of 
policy. The judiciary department of the new system must be 
introduced to the committee by one of their number, and under 
the most favorable auspices. Its virtues should be carefully and 
deliberately set forth, its defects even pointed out, and the mode 
of amending those defects prescribed ; and this office must de- 
volve on an individual who to eminent skill as a debater, as a 
lawyer, and as a judge, should add the authority of high charac- 
ter and great services. In a body of which Pendleton was a 
member there could be no hesitation in the choice of the proper 
person. His years, his weakness, the frail tenure which seemed 
to hold him to life, would impart to his opinions on a subject 
peculiarly his own the weight of a parting benediction. Ac- 
cordingly, as soon as the first and second sections of the third 
article were read, 222 though showing in his face the effects of re- 



222 "SEC. I. The judicial power of the United States shall be vested 
in one supreme court, and in such inferior courts as Congress may from 
time to time ordain and establish. The judges, both of ihe supreme 
and inferior courts, shall hold their offices during good behavior, and 
shall at stated times receive for their services a compensation, which 
shall not be diminished during their continuance in office. 

"SEC. II. The judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made under their authority , to 
all cases affecting ambassadors, other public ministers and consuls ; 
to all cases of admiralty and maritime jurisdiction ; to controversies 
to which the United States shall be a party ; to controversies between 
two or more States, between a State and the citizens of another State, 
between citizens of different States, between citizens of the same State 
claiming lands under grants of different States, and between a State, 
or the citizens thereof, and foreign States, citizens or subjects. 

" In all cases affecting ambassadors, other public ministers and consuls, 
and those in which a State shall be a party, the supreme court shall 
have original jurisdiction. In all the other cases before mentioned, the 
supreme court shall have appellate jurisdiction, both as to law and 
fact, with such exceptions, and under such regulations as the Congress 
shall make. 

"The trial of all crimes, except in cases of impeachment, shall be by 



VIRGINIA CONVENTION OF 1788. 281 

cent illness, this venerable man was assisted to his crutches, and 
forthwith addressed the Chair. Nor did he ever deliver, in the 
vigor of health and in the height of his fame, a more ingenious 
or a more conclusive speech. He had studied the subject with 
the strictest attention, had analyzed with inimitable tact the va- 
rious powers ceded to the judiciary, had scanned the defects of 
the system as he had scanned its perfections, and delivered a 
speech which, even in the meagre shreds that have come down 
to us, displays the attributes of a consummate debater in admi- 
rable juxtaposition with those of an accomplished judge. He 
began by saying that, in a former review of the Constitution at 
large, he had mentioned the necessity of making the judiciary 
an essential part of the government ; that it was necessary to 
arrest the executive arm, to prevent arbitrary punishments, to 
guard the innocent, to punish the guilty, to protect honesty and 
industry, and to punish violence and fraud. Conceding, then, 
that a judiciary was necessary, it must also be conceded that it 
must be co-extensive with the legislative power, and extend to 
all parts of the society intended to be governed. It must be so 
arranged that there shall be some court which will be the central 
point of its operations ; and for the plain reason that all the busi- 
ness cannot be done at the central point, there must be inferior 
courts to carry it on. The first clause contains an arrangement 
of the courts one supreme, and such inferior as Congress may 
ordain and establish. This is highly proper. Congress will be 
the judge of the public convenience, and may change and vary 
the inferior courts as experience shall dictate. It would there- 
fore have been not only improper, but exceedingly inconvenient 
to fix the arrangement in the Constitution itself, instead of leav- 
ing it to be changed according to circumstances. He then ex- 
pressed an opinion, which was confirmed in the same debate by 
Madison, and which may seem strange in our times, that the first 
experiment would probably be to appoint the State courts to 
have the inferior Federal jurisdiction, as such a plan would give 
general satisfaction and promote economy. But even this eligi- 
ble mode experience may furnish powerful reasons for changing, 



jury ; and such trial shall be held in the State where the said crimes 
shall have been committed ; but when not committed within any State, 
the trial shall be at such place or places as the Congress may by law 
direct." 



282 VIRGINIA* CONVENTION OF 1788. 

and Congress very properly possesses the power to alter the ar- 
rangement. He said this clause also secures the independence 
of the judges, both as to tenure of office and pay of salary ; and 
he wished it had extended to increase as well as diminution. 
When he had enumerated and dwelt upon the subject of the 
jurisdiction of the supreme court, he concluded that the necessity 
and propriety of Federal jurisdiction in such general cases' would 
be obvious to all. He adverted to the second clause of the section 
which settles the original jurisdiction of the supreme court, and 
confines it to ambassadors, ministers, and consuls, and to cases 
in which a State shall be a party. And here he sought to an- 
ticipate an objection which he knew would be urged by his op- 
ponents, by showing that, though the original jurisdiction was 
limited to the objects mentioned, yet Congress may go farther 
and exclude its original jurisdiction by limiting, for obvious and 
beneficial purposes, the cases in which it shall be exercised. 
Yet the Legislature cannot extend its original jurisdiction. He 
then dwelt on the appellate jurisdiction of the court. He said 
that it was necessary, in all free systems, to allow appeals under 
certain circumstances, in order to prevent injustice by correcting 
the erroneous decisions of inferior tribunals, and to introduce 
uniformity in decisions. This appellate jurisdiction was mani- 
festly proper, and could not have been objected to, if the Consti- 
tution had not unfortunately contained the words, " both as to 
law and fact." He sincerely wished these words had been buried 
in oblivion ; if they were, the strongest objection against the 
section would have been removed. He would give his free and 
candid sentiments on the subject. "We find," he said, "these 
words followed by others, which remove a great deal of doubt: 
' With such exceptions and under such regulations as Congress 
shall make.' So that Congress may make such regulations as 
the public convenience may require." 

" Let us consider the appellate jurisdiction, if these words had 
been left out. The general jurisdiction must embrace decrees in 
chancery and admiralty, and judgments in courts of common 
law, in the ordinary practice of this appellate jurisdiction. 
When there is an appeal from the inferior court to the court of 
chancery, the appellate jurisdiction goes to law and fact, because 
the whole testimony appears in the record. The court proceeds 
to consider the circumstances of both law and fact blended 



VIRGINIA CONVENTION OF 1788. 283 

together, and then decrees according to equity. This must be 
unexceptionable to everybody. How is it in appeals from the 
admiralty ? That court, except in some cases, proceeds as a 
court of chancery. In some cases they have trials by jury. But 
in most cases they proceed as in chancery. They consider all 
the circumstances, and determine as well what the fact as what 
the law is. When this goes to the superior court, it is deter- 
mined in the same way. Appeals from the common law courts 
involve the consideration of facts by the superior court, when 
there is a special verdict. They consider the fact and the law 
together, and decide accordingly. But they cannot introduce 
new testimony. When 1 a jury proceeds to try a cause in an 
inferior court, a question may arise on the competency of a 
witness, or some other testimony. The inferior court decides 
that question. They either admit or reject that evidence. The 
party intending to object states the matter in a bill of exceptions. 
The jury then proceeds to try the cause according to the judg- 
ment of the inferior court ; and, on appeal, the superior court 
determines upon the judgment of the inferior court. They do 
not touch the testimony. If they determine that the evidence 
was either improperly admitted or rejected, they set aside the 
judgment, and send back the cause to be tried again by a jury 
in the same court. These are the only cases in appeal from 
inferior courts of common law where the superior court can 
even consider facts incidentally. I feel the danger, he said, as 
much as any gentleman in this committee, of carrying a party to 
the Federal court to have a trial there. But it appears to me 
that it will not be the case if that be the practice I have now 
stated; and that that is the practice must be admitted. The 
appeals may be limited to a certain sum. You cannot prevent 
appeals without great inconvenience. But Congress can 'prevent 
that dreadful oppression which would enable many men to have 
a trial in the Federal court, which is ruinous. Congress may 
make regulations which will render appeals as to law and fact 
proper and perfectly inoffensive. If I thought that there was a 
possibility of danger I would be alarmed ; but when I consider 
who Congress are, I cannot conceive that they will subject the 
citizens to oppressions of that dangerous kind." When he had 
arrived at that point of his argument when the trial by jury, and 






284: VIRGINIA CONVENTION OF 1788. 

that trial to be held in the State where the offence was committed, 
was considered, his voice failed, and he resumed his seat. 

Mason then spoke. He had cherished the hope, he said, that 
the warmest friends of the Constitution would have pointed out 
the important defects of the judiciary ; and, as it was not in his 
line, he would have held his peace, if he were not convinced that 
it was so constructed as to destroy the dearest rights of the com- 
munity. Having read the first section, he inquired, what is there 
left to the State courts? What remains? There is no limitation. 
The inferior courts are to be as numerous as Congress may think 
proper. All the laws of the United States are paramount to the 
laws and the Constitution of Virginia. "The judicial power 
shall extend to all cases in law and equity arising under this 
Constitution." What objects will not be comprehended by this 
provision? Such laws may be framed as will include every 
object of private property. When we consider the nature and 
the operation of these courts, we must conclude that they will 
destroy the State governments. As to my own opinion, he said, 
I most religiously and conscientiously believe that it was the 
intention to weaken the State governments, to make them con- 
temptible, and then to destroy them. But, whatever may have 
been the intention, I think that it will destroy the State govern- 
ments. There are many gentlemen in the United States who 
think it right that we should have one great consolidated govern- 
ment, and that it was better to bring it about slowly and imper- 
ceptibly than all at once. This is no reflection on any man, for 
I mean none. I know from my own knowledge that there are 
many worthy gentlemen of this opinion. (Here Madison inter- 
rupted Mason, and demanded an unequivocal explanation. As 
those insinuations might create a belief that every member of 
the late Federal Convention was of that opinion, he wished him to 
tell to whom he alluded.) Mason replied : " I shall never refuse 
to explain myself. It is notorious this is a prevailing principle. 
It was at least the opinion of many gentlemen in Convention, 
many in the United States. I do not know what explanation 
the honorable gentleman asks. I can say with great truth that 
the honorable gentleman, in private conversation with me, ex- 
pressed himself against it. Neither did I ever hear any of the 
delegates from this State advocate it." Madison declared him- 



VIRGINIA CONVENTION OF 1788. 285 

self satisfied with this, unless the committee thought themselves 
entitled to ask a further explanation. 223 

Mason continued : " I have heard that opinion advocated by 
gentlemen for whose abilities, judgment, and knowledge I have 
the highest reverence and respect. I say that the general de- 
scription of the judiciary involves the most extensive jurisdic- 
tion. Its cognizance in all cases arising under that system, and 
the laws of Congress, may be said to be unlimited. In the next 
place it extends to treaties made, or which shall be made, under 
their authority. This is one of the powers that ought to be given 
them. I also admit that they ought to have judicial cognizance 
in all cases affecting ambassadors, public ministers, and consuls, 
as well as in cases of maritime jurisdiction. The next power of 
the judiciary is also necessary, under some restrictions. Though 
the decision of controversies to which the United States shall be 
a party, may at first view seem proper, it may, without restraint, 
be extended to a dangerously oppressive length. The next, with 
respect to disputes between two or more States, is right. I can- 
not see the propriety of the next power, in disputes between a 
State and the citizens of another State. As to controversies 
between citizens of different States, their power is improper and 
inadmissible. In disputes between citizens of the same State 
claiming lands under the grants of different States, the power is 
proper. It is the only case in which the Federal judiciary 
ought to have appellate cognizance of disputes between private 
citizens. The last clause was still more improper. To give 
them cognizance between a State and the citizens thereof is 
utterly inconsistent with reason and sound policy." Here Nich- 
olas rose and informed Mason that his interpretation was not 
warranted by the words. Mason replied that if he recollected 
rightly, the propriety of the power as explained by him had 
been contended for ; but that, as his memory had never been 
good, and was now much impaired from his age, he would not 
insist on that interpretation. He then proceeded : " Give me 



223 Madison manifested great sensitiveness during the speech of 
Mason, and it is not to be disguised that he did touch doctrines in the 
Convention which would have led the way to the plan denounced by 
Mason; for he is reported by Yates to have said that the States were 
never sovereign, and were petty corporations. See Yates' Reports, 
end the letter of Madison, published in the collection of McGuire. 



286 VIRGINM CONVENTION OF 1788. 

leave," he said, "to advert to the operation of this judicial 
power. Its jurisdiction in the first case will extend to all cases 
affecting revenue, excise and custom-house officers. It will take 
in of course what others do to them, and what is done by them 
to others. In what predicament will our citizens then be? If 
any of the Federal officers should be guilty of the greatest 
oppressions, or behave with the most insolent and wanton bru- 
tality to a man's wife or daughter, where is this man to get 
relief? His case will be decided by Federal judges. Even sup- 
posing the poor man may be able to obtain judgment in the 
inferior court for the greatest injury, what justice can he get on 
appeal? Can he go four or five hundred miles? Can he stand 
the expense attending it ? On this occasion they are to judge 
of fact as well as law. He must bring his witnesses where he is 
not known, where a new evidence may be brought against him, 
of which he never heard before, and which he cannot contradict." 

The honorable gentleman who presides, he said, has told us 
that the supreme court of appeals must embrace every object of 
maritime, chancery, and common law controversy. In the two 
first the indiscriminate appellate jurisdiction as to fact must be 
generally granted ; because otherwise it would exclude appeals 
in those cases. But why not discriminate as to matters of fact in 
common law controversies? The honorable gentleman has al- 
lowed that it was dangerous, but hopes regulations will be made 
to suit the convenience of the people. But mere hope is not a 
sufficient security. I have said that it appears to me (though I 
am no lawyer) to be very dangerous. Give me leave to lay be- 
fore the committee, an amendment which I think convenient, easy, 
and proper. (Here Mason proposed an alteration nearly the 
same as the first part of the Fourteenth Amendment recom- 
mended by the Convention, which see in the Appendix.) 

The jurisdiction of the Federal courts extends to controver- 
sies between citizens of different States. Can we not trust our 
State courts with the decision of these? If I have a controversy 
with a man in Maryland if a man in Maryland has my bond 
for a hundred pounds are not the State courts competent to try 
it? Why carry me a thousand miles from home from my 
family and business where it may perhaps be impossible for me 
to prove that I have paid it ? I may have a witness who saw me 
pay the money ; and I must carry him a thousand miles or be 



VIRGINIA CONVENTION OF 1788. 287 

compelled to pay the money again. " What effect," he inquired, 
"will this power have between British creditors and the citizens 
of this State? This is a ground on which I shall speak with con- 
fidence. Everyone who heard me speak on the subject knows 
that I always spoke for the payment of the British debts. I wish 
every honest debt to be paid. Though I would wish to pay the 
British creditor, yet I would not put it in his power to gratify 
private malice, to our injury. Every British creditor can bring 
his debtors to the Federal court. There are a thousand in- 
stances where debts have been paid, and yet by this appellate 
cognizance be paid again. ' To controversies between a State 
and the citizens of another State.' How will their jurisdiction 
in this case do ? Let the gentleman look to the westward. Claims 
respecting those lands, every liquidated account, or other claim 
against this State, will be tried before the Federal court. Is not 
this disgraceful? Is the State of Virginia to be brought to the 
bar of justice like a delinquent individual? Is the sovereignty 
of the State to be arraigned like a culprit, or a private offender? 
Will the States undergo this mortification? I think this power 
perfectly unnecessary. What is to be done if a judgment be 
obtained against a State ? Will you issue a fieri facias f It 
would be ludicrous to say that you would put the State's body 
in jail. How is the judgment then to be enforced? A power 
which cannot be executed ought not to be granted." 

"Let us consider," said Mason, "the operation of the last 
subject of its cognizance controversies between a State, or the 
citizens thereof, and foreign States, citizens, or subjects. There 
is a confusion in this case. This much, however, may be raised 
out of it that a suit will be brought against Virginia. She may 
be sued by a foreign State. What reciprocity is there in it? In 
a suit between Virginia and a foreign State, is the foreign State 
to be bound by the decision ? Is there a similar privilege given 
to us in foreign States ? How will the decision be enforced ? 
Only by the ultima ratio regum. A dispute between a foreign 
citizen or subject and a Virginian, cannot be tried in our own 
courts, but must be decided in the Federal conrts. Cannot we 
trust the State courts with a dispute between a Frenchman, 
or an Englishman, and a citizen ; or with disputes between 
two Frenchmen? This is digraceful. It will annihilate your 
State judiciary. It will prostrate your Legislature. Thus, sir," 



288 VIRGINIA CONVENTION OF 1788. 

% 

he said, " it appeared to me that the greater part of the powers 
are unnecessary, dangerous, tending inevitably to impair and 
ultimately to destroy the State judiciaries, and by the same prin- 
ciple, the legislation of the State governments. After mentioning 
the original jurisdiction of the supreme court, it gives it appellate 
jurisdiction in all the other cases mentioned, both as to law and 
fact, indiscriminately, and without limitation. Why not remove 
the cause of fear and danger ? But it is said that the regulations 
of Congress will remove it. I say that, in my opinion, those 
regulations will have a contrary effect, and will utterly annihilate 
your State courts. Who are the court ? The judges. It is a 
familiar distinction. We frequently speak of a court in contra- 
distinction to a jury. The judges on the bench are to be judges 
of fact and law. Now give me leave to ask : Are not juries 
excluded entirely? This great palladium of national safety, 
which is secured by our own State governments, will be taken 
from us in the Federal courts ; or, if it be reserved, it will be but 
in name, and not in substance. This sacred right ought to be 
secured." 

He then adverted to some of the probable effects of the deci- 
sions of Federal courts. " I dread," he said, "the ruin that 
will be brought upon thirty thousand of our people with respect 
to disputed lands. I am personally endangered as an inhabitant 
of the Northern Neck. The people of that section will be com- 
pelled by the operation of this power to pay the quit-rents of 
their lands. Whatever other gentlemen may think, I consider 
this a most serious alarm. It will little avail a man to make a 
profession of his candor. It is to his character and reputation they 
will appeal. To these I wish gentlemen to appeal for an inter- 
pretation of my motives and views. Lord Fairfax's title was 
clear and undisputed. After the Revolution we taxed his lands as 
private property. After his death an Act of Assembly was made 
(in 1782) to sequester the quit-rents due at his death in the hands 
of his debtors. Next year an act was made restoring them to 
the executor of the proprietor. Subsequent to this the treaty of 
peace was made, by which it was agreed that there should be no 
further confiscations. But after this an Act of Assembly passed 
confiscating this whole property. As Lord Fairfax's title was 
indisputably good, and as treaties are to be the supreme law of 
the land, will not his representatives be able to recover all in the 



VIRGINIA CONVENTION OF 1788. 289 

Federal court ? How will gentlemen like to pay an additional 
tax on the lands in the Northern Neck ? This the operation of 
this system will compel them to do. They are now subject to 
the same taxes other citizens are, and if the quit-rents be recov- 
ered in the Federal court they will be doubly taxed. This may 
be called an assertion ; but were I going to my grave I would 
appeal to Heaven that I think it true. How will a poor man get 
relief when dispossessed unjustly ? Is he to go to the Federal 
court eight hundred miles off? He might as well give up his 
claim." 

" Look," said Mason, " to that great tract of country between 
the Blue Ridge and the Alleghany mountains. Every foot of 
it will be claimed, and probably recovered in the Federal court 
from their present possessors, by foreign companies which have a 
title to them. These lands have been sold to a great number of 
people. Many settled on them on terms which were advertised. 
How will this be in respect of ex post facto laws? We have 
not only confirmed the title of those who made the contracts, 
but those who did not, by a law in 1779, on their paying the 
original price. Much was paid in a depreciated value, and much 
not paid at all. Look now to the Indiana Company. The great 
Indiana purchase, which was made to the westward, will by this 
new judicial power be made a cause of dispute. The possessors 
may be ejected from those lands. That company paid a consid- 
eration of ten thousand pounds to the Crown before the lands 
were taken up. That company may now come in and show that 
they have paid the money, and have a full right to the land. 
Three or four counties are settled on those lands, and have long 
enjoyed them peacefully. All these claims before those courts, if 
successful, will introduce a scene of distress and confusion almost 
without a parallel. The gloomy pictures which Virgil has painted 
of a desolated country and an ejected people will be seen in our 
own land ; and from hundreds of honest and thrifty men reduced 
to ruin and misery, and driven with their families from their 
homes, we will hear the mournful ditty of the poet : 

Nos patriam fugimus et dulcia linquimus arva. 

Mason concluded by offering an amendment which would pre- 
vent such direful results as he feared would happen, in these 
words : " That the judiciary power shall extend to no case where 

19 



290 VIRGINIA CONVENTION OF 1788. 

the cause of action shall have originated before the ratification 
of this Constitution, except in suits for debts due to the United 
States, disputes between States about their territory, and dis- 
putes between persons claiming lands under the grants of differ- 
ent States." In these cases there is an obvious necessity for 
giving the court a retrospective power. "I have laid before 
you," he said, "my ideas on the subject, and expressed my 
fears, which I most conscientiously believe to be well-founded." 

It was now past the usual hour of adjournment, but late 
as it was, Madison rose to break the effect of Mason's speech. 
He said that he did not wonder that Mason, who believed 
the judiciary system so fatal to the liberties of the country, 
should have opposed it with so much warmth ; but as he believed 
his fears were groundless, he would endeavor to refute his objec- 
tions wherein they appeared to him ill-founded. He confessed that 
there were defects in the judiciary that it might have been better 
expressed ; but that truth obliged him to put a fair interpretation 
upon the words of the Constitution ; and as it was late, he could 
not then enter fully on the subject. He hoped, however, that 
gentleman would see that the dangers pointed out by Mason did 
not necessarily follow. The House then adjourned. 

On Friday, the twentieth of June, the House went into com- 
mittee, Wythe in the chair, and the first and second sections of 
the third article still under consideration. 

Madison rose to reply to Mason. There was an evident inter- 
est shown to hear the speech of Madison, who, like Mason, was 
not a lawyer, on a topic which was beyond the usual sphere of 
a politician, and which had been argued with such eminent 
ability by Mason the day before. When Madison had detailed 
at some length the difficulties inseparable from the task of form- 
ing a Federal compact between different States whose interests 
and opinions were apparently diverse, and had referred to the 
executive department of the Constitution, and especially the 
judiciary in the way of illustration, he discussed the question of 
the judiciary under two heads; the first, whether the subjects of 
its cognizance be proper subjects for Federal jurisdiction, and 
next, whether the provisions respecting it will be consistent with 
safety and propriety, will answer the purposes intended, and suit 
local circumstances. Under the first head he discussed the 
powers of the judiciary. As to its jurisdiction in controversies 



VIRGINIA CONVENTION OF 1788. 291 

between a State and the citizens of another State, its only opera- 
tion would be that if a State wished to bring suit against an indi- 
vidual, it must be brought in the Federal court. It is not in the 
power of individuals to call any State into court. As to its cog- 
nizance of disputes between citizens of different States, perhaps 
this authority ought to have been left to the State courts. He 
thought that the result would be rather salutary than otherwise. 
As to disputes between foreign States and one of our States, 
should such a case ever arise, it could only come on by consent 
of parties. It might avert difficulties with foreign powers. 
Ought a single State have it in its power to involve the union at 
any time in war? 

Under the second head, he said, suppose the subjects of juris- 
diction had only been enumerated, and full power given to Con- 
gress to establish courts, would there have been any valid ob- 
jection ? But the present arrangement was better and more 
restrictive. As to the objections against the appellate cognizance 
of fact as well as law, he mainly relied on the arguments and 
authority of Pendleton, which were conclusive with him. Con- 
gress may make a regulation to prevent such appeals entirely. 
He argued that in so far as the judicial power extended to con- 
troversies between citizens of different States, it was beneficial to 
the commercial States, and proportionally to Virginia. He be- 
lieved that the Legislature would accommodate the judicial power 
to the necessities of the people, and instead of making the 
supreme court stationary, will fix it in different parts of the 
Continent, as was done with the admiralty courts under the Con- 
federation. It would also be in the power of Congress to vest 
the judicial power in the inferior and superior courts of the 
States. Gentlemen argued that the Legislature would do all 
the ill that was possible. Distrust to a certain extent was wise ; 
he did not lean to over-confidence himself; but without some 
measure of confidence government was impossible. Without 
confidence no theoretical checks, no form of government could 
render us secure. It was objected that the jurisdiction of the 
Federal courts would annihilate the State courts ; but, though 
there then were from peculiar circumstances many cases between 
citizens of different States, it might never occur again, and he 
affirmed that hereafter ninety-nine cases out of a hundred would 
remain with the State courts. As to vexatious appeals, they can 



292 VIRGINIA CONVENTION OF 1788. 

be remedied by Congress. If the State courts were on a good 
footing, what would induce men to take such trouble ? And if 
this provision should have the effect of establishing universal 
justice, and accelerating it in America, it would be a most fortu- 
nate result for debtors. Confidence would take the place of 
distrust, and the circulation of confidence was better than the 
circulation of money. No political system can directly pay the 
debts of individuals. Industry and economy are the only re- 
sources of those who owe money. But by the establishment of 
confidence the value of property will be raised, capital will go 
in quest of labor, and all will share in the general prosperity. 
Madison concluded by saying that he would not enter into those 
considerations which Mason added, but hoped some other gen- 
tleman would undertake to answer him. 224 

Henry rose to reply to Pendleton and Madison. He said that 
he had already expressed painful sensations at the surrender of 
our great rights, and was again driven to the mournful recollec- 
tion. The purse is gone the sword is gone and here is the 
only thing of any importance that remains with us ! He con- 
tended that the powers in the section under discussion were 
either impracticable, or, if reducible to practice, dangerous in the 
extreme. He deplored the idea suggested by Pendleton and 
sanctioned by Madison, that " our State judges would be con- 
tented to be Federal judges and State judges too." " If we 
are to be deprived of that class of men, and if they are to com- 
bine against us with the Federal Government, we are gone ! I 
regard the Virginia judiciary as one of the best barriers against 
the strides of power. So few are the barriers against the 
encroachments and usurpations of Congress, that when I see this 
last barrier, the independency of the judges impaired, I am 
persuaded that I see the prostration of all of our rights. In 
what a situation will your judges be when they are sworn to 
preserve the Constitution of the State and that of the Federal 
Government? If there should be a concurrent dispute be- 
tween the two governments, which shall prevail? My only 
comfort, he said, was the independence of the judges. If 
by this system we lose it, we must sit down quietly and be 

224 In relation to British debts, the Fairfax grants, the Indiana Com- 
pany, &c. 



VIRGINIA CONVENTION OF 1788. 293 

oppressed. He discussed at length the appellate jurisdiction of 
the courts, and contended that, if the arguments of the gentle- 
men were just, arid that Congress would make such a judiciary 
as it pleased, then Congress can alter and amend the Constitu- 
tion. And if the Constitution is to be altered, on whom ought 
that duty to devolve? On the members of Congress, or on those 
who are now entrusted with the office of securing the public 
rights on a firm and certain foundation beyond the reach of con- 
tingencies ? He reverted to the remark of Madison that there 
were great difficulties in framing a Constitution. "I acknowl- 
edge it," he said ; "but I have seen difficulties conquered which 
were as unconquerable as this. We are told that trial by jury is 
a technical term. Do we not know its meaning? I see one 
thing in this Constitution I made the remark before that 
everything with respect to privileges is so involved in darkness, 
it makes me suspicious, not of those gentlemen who formed it, 
but of its operation in its present form. Trial by jury is secured 
in criminal cases, it is said; I would rather it had been left out 
altogether than have it so vaguely and equivocally provided for. 
He endorsed the reasoning of Mason about the incarcerating of 
a State, begged to know how money was to be paid if the State 
was cast, and denounced the folly of investing the judiciary with 
a power that could not be enforced. He contended that the pro- 
visions of the clause in debate would operate as a retrospective 
law, which was odious in civil cases as ex post facto were in 
criminal, and that citizens would be subject to a tribunal unknown 
at the time the contracts were made. He contested the assertion 
of Madison that, in controversies between a State and the citi- 
zens of other States, a State could not be brought into court. 
The gentleman asserts that the State can only be plaintiff; but 
that paper says Virginia may be defendant as well as plaintiff. 
If gentlemen construe that paper so loosely now, what will they 
do when our rights and liberties are in their power ? He de- 
clared that this judiciary presented the first instance ever known 
among civilized men of the establishment of a tribunal to try 
disputes between the aggregate society and foreign powers. He 
then discoursed at length upon the trial by jury, quoting Black- 
stone's remarks upon it, and its virtual sacrifice under the new 
scheme; and asked: "Shall Americans give up that which 
nothing could induce the English people to relinquish? The 



294 VIRGINIA CONVENTION OF 1788. 

idea is abhorrent to my mind. There was a time when we would 
have spurned at it. This gives me comfort that as long as I live 
my neighbors will protect me. Old as I am, it is probable I may 
yet have the appellation of rebel. I trust I shall see congres- 
sional oppression crushed in embryo. As this government 
stands, I despise and abhor it. Gentlemen demand it, though it 
takes away the trial by jury in civil cases, and does worse than 
take it away in criminal cases. It is gone, unless you preserve 
it now. I shall add no more but that I hope that gentlemen will 
recollect what they are about to do, and consider that they are 
about to give up this last and best privilege." 

Pendleton replied to Mason and Henry. He said that if there 
had been any person in the audience who had never read the 
Constitution and had heard what has just been said, he would be 
surprised to learn that trial by jury was not excluded in civil 
cases, and was expressly provided in criminal cases. He had 
not heard that kind of argument in favor of the Constitution. It 
is insisted that the right of challenging has not been secured ; 
but when the Constitution says that the trial shall be by jury, 
does it not also say that every incident shall go along with it? 
The honorable gentleman (Mason) was mistaken yesterday in 
his reasoning on the propriety of a jury from the vicinage. He 
supposed that a jury from the vicinage was had "from this 
view that they should be acquainted with the character of the 
person accused. I thought, said Pendleton, that it was with 
another view that the jury might have some personal knowl- 
edge of the fact and acquaintance with the witnesses who will 
come from the neighborhood. 223 The same gentleman objected 



225 Pendleton sought to make mirth with those gentlemen of the law 
in the Convention who thought that none but lawyers can understand 
legal questions. The fact is that Mason was clearly right, and Pendle- 
ton clearly wrong. Mason did not contend that a jury from the vici- 
nage was the sole benefit accruing from jury trial, but that it was an 
important one, as it assuredly is, which a criminal, carried a thousand 
miles from his home, would lose. As Pendleton wholly excludes from 
his view this great benefit, it is he that errs, and not Mason. The his- 
tory of trial by'jury proves incontestibly tnat one of its most precious 
privileges was that the criminal should be tried by his peers (pares) 
that is, by men living in the same region, placed under the same cir- 
cumstances, and liable to be punished for the same crimes, upon the 
testimony of the same men. When it is considered that it was mainly 



VIRGINIA CONVENTION OF 1788. 295 

to the unlimited power of appointing inferior courts. Why 
limit the power? Ought there not to be a court in every State? 
Ought there not to be more than one, should the convenience of 
the people hereafter require it? Look at our own legislation. 
What would have been the condition of our Western counties, 
and of Kentucky in particular, if our Legislature had not pos- 
sessed this power ? We established a general court in that dis- 
trict, but we did not lose sight of making every part of our 
territory subject to one supreme tribunal. Appeals lay from that 
court to the court of appeals here. And what was the result ? 
There has not been a single appeal. He also objected to the 
clause which provides that cases under the Constitution and the 
laws made in pursuance thereof, should be tried in the Federal 
court. Ought such matters to be tried in the State courts? But 
he says that Congress will make bad laws. Is not this carrying 
suspicion to an extreme that tends to prove that there should 
be no Legislature or judiciary at all ? But we are alarmed with 
the idea that this is a consolidated government. It is so, say 
gentlemen, in the other two great departments, and it must be 
so in the judiciary. I never considered it, said Pendleton, to be 
a consolidated government as to involve the interests of all 
America. Of the two objects of judicial cognizance, one is gen- 
eral and national, and the other local. The former is given to 
the general judiciary, and the latter left to the local tribunals. 
They act in co-operation to secure our liberty. For the sake of 
economy the appointment of these courts might be in the State 
courts. I rely on an honest interpretation from independent 
judges. An honest man would not serve otherwise, because it 
would be to serve a dishonest purpose. To give execution to 
proper laws is their peculiar province. There is no inconsis- 
tency, impropriety, or danger in giving the State judges the 
Federal cognizance. Every gentleman who beholds my situa- 
tion, my infirmity, and various other considerations, will hardly 
suppose that I carry my view to an accumulation of power. 
Ever since I had any power, I was more anxious to discharge 
my duty than to increase my power. 

introduced to prevent oppression by the government and by superior 
lords, the vicinage of his triers is an important consideration to the cul- 
prit, whose character will then, and only then, have its proper weight 
in his favor. 



296 VIRGINIA CONVENTION OF 1788. 

Pendleton then argued that the impossibility of calling a sove- 
reign State to the tribunal of another sovereign State, showed 
the propriety and necessity of vesting the Federal court with the 
decision of controversies to which a State shall be a party. But 
the principal objection of the gentleman (Mason) was, that juris- 
diction was given the Federal court in disputes between citizens 
of different States. I think, said Pendleton, that in general those 
decisions might be left to the State tribunals, especially as citizens 
of one State are declared citizens of all. But cases may arise in 
which this jurisdiction would be proper, as in the case of Rhode 
Island, where a citizen of another State would be compelled to 
accept payment of one-third or less of his money. Ought he 
not to be able to carry his claim to a court where such unworthy 
principles do not prevail ? He denied that there was any force 
in the case put by Mason of the malicious assignment of a bond 
to a citizen of a neighboring State, Maryland for instance. The 
creditor cannot carry the debtor to Maryland. He must sue in 
the local Federal court; the creditor cannot appeal. He gets a 
judgment. The defendant only can appeal, and gains a privilege 
instead of an injury. As to the amendment proposed by the 
gentleman, I attended to it, said Pendleton, and it gave force to 
my opinion, that it is better to leave the subject to be amended 
by the legislation of Congress. The honorable gentleman 
(Henry) argued to-day that it was placing too much confi- 
dence in agents and rulers. Will the representatives of any 
twelve States sacrifice their own interest and that of their citizens 
to answer no purpose ? But suppose we should be deceived ; 
have we no security ? So great was the spirit of America that 
it was found sufficient to oppose the greatest power in the world. 
Will not that spirit protect us against any danger from our own 
representatives ? As it was late, he said he would add no more. 

Pendleton was followed by a young man of thirty years who 
resided in Richmond, who had already taken a prominent part 
in debate, whose arguments, enforced with logical precision, were 
delivered with modesty and were heard with profound respect, 
and whose fame, then in its early dawn, was destined in the course 
of a third of a century, during which he held the office of chief- 
justice of that court which he was now required to defend, to 
attain its greatest lustre. His opinions, as well from the ability 
with which they were maintained as from his subsequent career, 



VIRGINIA CONVENTION OF 1788. 2 ( J7 

have a living interest even in our own times. He had delibe- 
rately prepared himself to reply to the arguments of Mason, 
and followed that gentleman step by step. He said it was argued 
that the Federal courts will not determine the causes which may 
come before them with the same fairness and impartiality with 
which other courts decide. What are the reasons of this sup- 
position ? Do gentlemen draw them from the manner in which 
the judges are chosen, or the tenure of their office ? What is it 
that makes us trust our judges ? Their independence in office 
and their manner of appointment. Are not the judges of the 
Federal court chosen with as much wisdom as the judges of the 
State governments ? Are they not equally, if not more inde- 
pendent ? If there be as much wisdom and knowledge in the 
United States as in a single State, shall we conclude that that 
wisdom and knowledge will not be equally exercised in the selec- 
tion of judges ? What are the subjects of Federal jurisdiction ? 
Let us examine each of them with the supposition that the same 
impartiality will be observed in those courts as in other courts, 
and then see if any mischief will arise from them. 

With respect to their cognizance in all cases arising under the 
Constitution and the laws of the United States, the gentleman 
(Mason) observes that the laws of the United States being para- 
mount to the laws of the particular States, there is no case but 
what this will extend to. Has the government of the United 
States power to make laws on every subject ? Does he under- 
stand it so? Can they make laws affecting the mode of trans- 
ferring property, or contracts, or claims between citizens of the 
same State ? Can they go beyond their delegated powers ? If 
they did exceed those powers, their acts would be considered by 
the judges beyond their jurisdiction and declared void. But, 
says the gentleman, the judiciary will annihilate the State courts. 
Does not every gentleman here know that the causes in our 
courts are more numerous than they can decide according to 
their present construction ? Are there any words in this Con- 
stitution which excludes the courts of the States from those cases 
which they now possess? Will any gentleman believe it ? Are 
not controversies respecting lands claimed under the grants of 
different States the only controversies between citizens of the 
same State which the Federal judiciary can take cognizance of? 
The State courts will not lose the jurisdiction of the causes 



298 VIRGINIA CONVENTION OF 1788. 

which they now decide. They have a concurrence of jurisdic- 
tion with the Federal courts in those cases in which the latter 
have cognizance. How disgraceful is it, says the honorable 
gentleman, that the State courts cannot be trusted ? Does the 
Constitution take away their jurisdiction ? Is it not necessary 
that Federal courts should have cognizance of cases arising 
under the Constitution and laws of the United States ? What is 
the purpose of a judiciary but to execute the laws in a peaceable, 
orderly manner, without shedding blood, or availing yourself of 
force? To what quarter will you look for protection from an 
infringement of the Constitution, if you will not give the power 
to the judiciary? The honorable gentleman objects to it be- 
cause the officers of government will be screened from merited pun- 
ishment by the Federal authority. The Federal sheriff, he says, 
will go into a poor man's house and beat him or abuse his family, 
and the Federal court will protect him. Is it necessary that 
officers should commit a trespass on the property or persons of 
those with whom they are to transact business ? The injured 
man would trust to a tribunal in his neighborhood, and he would 
get ample redress. There is no clause in the Constitution which 
bars the individual injured from seeking redress in the State 
courts. He says that there is no instance of appeals as to fact 
in common law cases. The contrary is well known to be the 
case in this State. With respect to mills, roads, and other cases, 
appeals lie from the inferior to the superior courts as to fact as 
well as law. Is it a clear case that there can be no case in com- 
mon law in which an appeal as to fact would be necessary and 
proper ? If an appeal in matters of fact could not be carried to 
the superior court, then it would result that^such cases could not 
be tried before the inferior courts for fear of injurious and partial 
decisions. 

Where, says Marshall, is the necessity of discriminating be- 
tween the three cases of chancery, admiralty, and common law? 
Why not leave it to Congress ? Is it necessary for them wantonly 
to infringe your rights ? Have you anything to apprehend, when 
they can in no case abuse their power without rendering them- 
selves hateful to the people at large? Where power may be 
trusted, and there is no motive to abuse it, it seems to me to be 
as well to leave it undetermined as to fix it in the Constitution. 
With respect to disputes between a State and the citizens of 



VIRGINIA CONVENTION OF 1788. 299 

another State, its jurisdiction has been decried with unusual 
vehemence. I hope, he said, that no gentleman will think that 
a State will be called at the bar of the Federal court. Is there 
no such case at present ? Are there not many cases in which 
the Legislature of Virginia is a party, and yet the State is not 
sued? It is not rational to suppose that the sovereign power 
shall be dragged before a court. The intent is to enable States 
to recover claims of individuals residing in other States. I con- 
tend this construction is warranted by the words. I see a diffi- 
culty in making a State a defendant, which does not prevent its 
being plaintiff. As to controversies between the citizens of one 
State and the citizens of another State, I should not use my own 
judgment were I to contend that it was necessary in all cases to 
bring such suits in a Federal court ; but cases may happen when 
it would be proper. It is asked, in the court of which State will 
the suit be instituted? In the court of the State wherein the 
defendant resides, and it will be determined by the laws of the 
State in which the contract was made. As to controversies be- 
tween a State and a foreign State, the previous consent of the 
parties is necessary ; and therefore, as the Federal court will 
decide, each party will acquiesce. The exclusion of trial by 
jury in this case, the gentleman (Mason) urged would prostrate 
our rights. Does the word court only mean the judges ? Does 
not the determination of a jury necessarily lead to the judg- 
ment of the court? Is there anything here that gives the judges 
exclusive jurisdiction of matters of fact ? What is the object 
of a jury trial? To inform the courts of the facts. When a 
court has cognizance of facts, does it not follow that they can 
make enquiry by a jury? But it seems the right of challenging 
the jurors .is not secured in this Constitution. Is this done in 
our own Constitution or by any provision of the English gov- 
ernment ? Is it done by their Magna Charter or by their Bill of 
Rights ? This privilege is founded on their laws. If we are 
secure in Virginia without mentioning it in our laws, why should 
not this security be found in the Federal court? As to the quit- 
rents in the Northern Neck, has he not acknowledged that there 
was no complete title ? Was he not satisfied that the right of 
the legal representative of the proprietor did not exist at the 
time he mentioned ? If so, it cannot exist now. A law passed 
in 1782, which settles this subject. He says that poor men may 



300 VIRGINIA CONVENTION OF 1788. 

be harassed by the representative of Lord Fairfax. If he has 
no right this cannot be done. If he has this right and comes to 
Virginia, what laws will this claim be determined by ? By the 
laws of Virginia. By what tribunals will the claim be deter- 
mined ? By our own tribunals. After replying to some inci- 
dental objections which had been urged by Mason and Henry, 
Marshall concluded his speech, and was followed in a few words 
by Randolph, when the committee rose, and the House ad- 
journed. 

On Saturday, the twenty-first of June, the House resolved 
itself into a committee, Wythe in the chair, the first and second 
sections of the third articles still under consideration. Grayson 
rose and reviewed the structure and the jurisdiction of the 
Federal judiciary at great length, and denounced its defects in a 
splendid oration, and was followed by Randolph at equal length 
in reply. At the close of Randolph's speech the House ad- 
journed. 

On Monday, the twenty-third of June, the House again went 
into committee, Harrison in the chair, and the same sections still 
under consideration. Nicholas rose to suggest that the com- 
mittee now pass on to the next clause of the Constitution, but 
he was opposed by Henry, who made a handsome acknowledg- 
ment of the fairness and ability of Marshall, and replied to some 
of his arguments. He was succeeded by a member far advanced 
in life, who had not as yet spoken in the committee, and who was 
not only held in high repute by his contemporaries, but deserves 
the favorable regard of posterity. For nearly the third of a 
century last past he had been engaged in the military service of 
his country. He was one of the oldest and most prominent mili- 
tary men in the Commonwealth. In the Indian wars from 1755 
to nearly the beginning of the Revolution he had borne a con- 
spicuous part, and was often in command of the Virginia troops 
raised for the defence of the frontier. His large stature and 
great muscular strength, added to his experience in war, made 
him the terror of the Indians. On one occasion he was sent to 
South Carolina with the Virginia companies to aid in beating 
back the Indians. As early as 1756, when Washington went to 
Boston to consult General Shirley on a point of military etiquette, 
Colonel Adam Stephen was left in command of the military 
forces of the colony until his return. In 1763 the Governor of 



VIRGINIA CONVENTION OF 1788. 301 

Virginia, when Stephen was in command of a levy of five hun- 
dred men to defend the frontiers against the Indians, spoke highly 
of his military capacity and courage. In 1776 he commanded 
the Fourth battalion of Virginia troops at Portsmouth, when he 
was appointed a brigadier-general in the army of the United 
States. On retiring from his command in Portsmouth, a vale- 
dictory letter was addressed to him by his officers, who speak of 
him as the polite gentleman and the accomplished soldier ; and 
in his answer he mentioned the fact that " the present was his 
twelfth campaign." 226 In February, 1777, he was elected a major- 
general by Congress. In the battle of Brandywine he distin- 
guished himself by his valor, as on other important occasions. 
He had probably been a member of the House of Burgesses, and 
was returned from Berkeley to the March Convention of 1775, 
when he sustained the resolutions of Henry for putting the Col- 
ony into military array. In the following July he was also 
returned to the Convention, but from some mformalityjn the 
return he lost his seat. 227 A warm admirer of the Federal Con- 

226 Virginia Gazette, September 20, 1776. 

227 Journal of the Convention of July, 1775, page 7. Irving, in his Life 
of Washington, has several allusions to Stephen, but the best source of 
information is Sparks 's Writings of Washington^ which the reader may 
consult by referring to the name of Stephen in the index in the last 
volume. In the years 1775 and 1776, of the American Archives, are 
letters of Stephen. A letter of his heretofore quoted may be found in 
the Life of R. H. Lee, by his grandson. 

Stephen died in August, 1791, in Berkeley county, and lies buried on 
the estate owned by the Hon. Charles J. Faulkner ; a rude stone marks 
the spot. He has left descendants, all of whom occupy respectable 
and honorable positions in the communities in which they reside. 
Letter of the Hon. C J. Faulkner to Francis B. Jones, Esq., dated 
May 10, 1856, I am indebted to Mr. Jones for his great courtesy in 
assisting me in my inquiries concerning Stephen and other persons 
belonging to the history of the Valley of Virginia. It is believed that' 
Stephen was born in what is now Berkeley county, though I think it 
questionable. He lived in Martinsburg in his latter days. The cause 
of his losing his seat in the Convention of 1775 was, that two districts 
of the county did not know that an election was to be held when 
Stephen was elected, and that Stephen, who was on election day parad- 
ing the militia, marched at their head to the polls, and was elected by 
their votes. See KerchevaVs History of the Valley, pages 244, 245 ; 
also, Burke's History of Virginia, IV, 91 ; and Marshall's Life of 
Washington, revised edition, I, 157, 158. 



302 VIRGINIA -CONVENTION OF 1788. 

stitution, and as fearless on the floor as in the field, he now rose 
to give utterance to his feelings. Indeed, his speech is rather a 
fierce personal attack upon Henry than a defense of the judiciary, 
which was the topic in debate, or of the Constitution at large." 
"The gentleman," says Stephen, " means to frighten us by his 
bugbears and hobgoblins his sale of lands to pay taxes Indian 
purchases, and other horrors, that I think I know as much about 
as he does. I have traveled through the greater part of the 
Indian countries ; I know them well. I can mention a variety 
of resources by which ihe people may be enabled to pay their 
taxes." (He then went into a description of the Mississippi and 
its waters, Cook's river, the Indian tribes residing in that coun- 
try, and the variety o'f articles which might be obtained to advan- 
tage by trading with those people.) "I know, he said, of several 
rich mines of gold and silver in the western country. And will the 
gentleman tell me that these precious metals will not pay taxes ? 
If the gentleman does not like this government, let him go and 
live among the Indians. I know of several nations that live very 
happy ; and I can furnish him with a vocabulary of their lan- 
guage." 

Nicholas rose to answer some arguments which had fallen 
from the gentlemen on the other side. He denied that the Eng- 
lish judges were more independent than the judges of the Fed- 
eral judiciary. May not a variety of pensions be granted to the 
judges with a view to influence their decisions ? May they not 
be removed by a vote of both Houses of Parliament ? We are 
told that quit-rents are to be sued for. To satisfy gentlemen, I 
beg leave to refer them to an Act of Assembly, passed in the 
year 1782, before the peace, which absolutely abolishes the quit- 
rents, and discharges the holders of lands in the Northern Neck 
from any claim of that kind. As to the claims of certain com- 
panies which purchased lands of the Indians, they were deter- 
mined prior to the opening of the land office by the Virginia 
Assembly; and it is not to be supposed that they will be again 
disposed to renew their claim. But, said Nicholas, there are 
gentlemen who have come by large possessions that it is not 
easily to account for. Here Henry interfered, and hoped the 
gentleman meant nothing personal. Nicholas answered: "I 
mean what I say, sir." He then alluded to the Blue Laws of 
Massachusetts, of which he said he had never heard till yester- 



VIRGINIA CONVENTION OF 1788. 303 

day, and said he thought those laws should have as little weight 
in the present discussion as an argument which he had heard out 
of doors, to the effect that as New England men wore black 
stockings and plush breeches, there could be no union with 
them. He said the ground had been so much traveled over, he 
thought it unnecessary to trouble the committee any farther on 
the subject. 

Henry rose and said that if the gentleman means personal in- 
sinuations, or wishes to wound my private reputation, I think this 
an improper place to do so. If, on the other hand, he means to 
go on in the discussion of the subject, he ought not to apply ar- 
guments which might tend to obstruct the discussion. As to 
land matters, I can tell how I came by what I have ; but I think 
that gentleman (Nicholas) has no right to make that inquiry of 
me. I mean not to offend any one I have not the most distant 
idea of injuring any gentleman. My object was to obtain infor- 
mation. If I have offended in private life, or wounded the feel- 
ings of any man, I did not intend it. I hold what I hold in a 
right and just manner. I beg pardon for having obtruded thus 
far. Nicholas then observed that he meant no personality in 
what he said, nor did he mean any resentment. If such conduct 
meets the contempt of that gentleman, I can only assure him, said 
Nicholas, it meets with an equal degree of contempt from me. 

The President hoped gentlemen would not be personal, and 
that they would proceed to investigate the subject in a calm and 
peaceable manner. Nicholas again rose and said that he did not 
mean the honorable gentleman (Henry), but he meant those who 
had taken up large tracts of land in the western country. The 
reason he could not explain himself before was that he thdught 
some observations had dropped from the honorable gentleman 
as ought not to have come from one gentleman to another. 228 



228 Nicholas was the brother-in-law of Randolph, and was, it is be- 
lieved, deeply interested in western lands, and in fact removed to Ken- 
tucky in a short time after the adjournment of the Convention. Th'e 
account of the quarrel, as reported in the debates, I have given, but 
there does not seem to be any excuse for the prompt refusal of Nicholas 
to make an explanation. The explanation may, perhaps, be found in 
the high state of excitement which prevailed as the final voting was 
coming on; in the tone in which Henry made his inquiry, and not a 
little, perhaps, in the feeling with which Henry was regarded by the 



301 VIRGINIA ^CONVENTION OF 1788. 

An animated conversation in respect of the powers of the judi- 
ciary now sprang up between Monroe, Madison, Grayson, Henry 
and Mason, when the sections under consideration were passed 
over, and the first section of the fourth article was read. 229 

Mason observed that how far Congress shall declare the degree 
of faith to which public records were entitled to was proper, he 
could not clearly see. Madison answered that the clause was 
absolutely necessary, and that he had not employed a thought on 
the subject. 

The second section of the fourth article was then read. 230 
Mason said that on a former occasion gentlemen were pleased to 
make some observations on the security of property coming 
within this section. It was then said, and he now said, that 
there is no security, nor have gentlemen convinced him that 
there was.' 231 

leading friends of the Constitution, who laid the whole burden of oppo- 
sition at his door. There were repeated attempts to wound his feel- 
ings, but he treated most of them with silence. 

229 tp u ii f a ith and credit shall be given in each State to the public 
acts, records and judicial proceedings of every other State. And the 
Congress may, by general laws, prescribe the manner in which such 
acts, records and proceedings shall be passed, and the effect thereof." 

23011 The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States." 

" A person charged in any State with treason, felony, or other crime, 
who shall flee from justice and be found in another State shall, on de- 
mand of the executive authority of the State from which he fled, be 
delivered up, to be removed to the State having jurisdiction of the 
crime." 

'' No person held to service or labour in one State, under the laws 
thereof, escaping into another shall, in consequence of any law or regu- 
lation therein, be discharged from such service or labour, but shall be 
delivered up, on claim of the party to whom such service or labour 
may be due." 

231 More than sixty years after this remark was made by Mason, one 
of his grandsons in the Senate of the United States drew up an act to 
carry this clause of the Constitution into effect. 

If it had been objected to the first clause of this section, that a 
Southern gentleman could not travel with his servants through another 
State without having them forcibly taken from him, or in transitu to 
some other State, the friends of the Constitution would have answered 
that from their own experience no such result would ever follow. 



VIRGINIA CONVENTION OF 1788. 305 

The third section of the fourth article was then read. 232 Gray- 
son said that it appeared to him that there never can be a South- 
ern State admitted into the union. There are seven States who 
are a majority, and whose interest it is to prevent it. The bal- 
ance being actually on their side, they will have the regulation 
of commerce and the Federal ten miles square whenever they 
please. It is not to be supposed then, that they will admit any 
Southern State into the union so as to lose that majority. Madi- 
son thought this part of the plan more favorable to the Southern 
States than the present Confederation, as there was a greater 
chance of new States being admitted. 233 Mason glanced at differ- 
ent parts of the Constitution, and argued that the adoption of a 
system so replete with defects could not but be productive of 
the most alarming consequences. He dreaded popular resist- 
ance to its operation. He expressed in emphatic terms the 
dreadful effects which must ensue should the people resist, and 
concluded by observing that he trusted gentlemen would pause 
before they decided a question which involved such awful con- 
sequences. Lee declared that he was so overcome by what 
Mason had said that he could not suppress his feelings. He 
revered that gentlemen, and never thought he should hear from 
him sentiments so injurious to the country, so opposed to the 
dignity of the House, and so well calculated to bring on the 
horrors which the gentleman deprecated. Such speeches within 
those walls would lead the unthinking and the vicious to overt 
acts. God of Heaven, said Lee, avert that fearful doom ; but 
should the madness of some and the vice of others risk that 
awful appeal, he trusted that the friends of the Constitution would 

232 "SEC. III. New States may be admitted by the Congress into this 
union; but no new State shall be formed or erected within the juris- 
diction of any other State ; nor any State be formed by the junction of 
two or more States without the consent of the Legislatures of the States 
concerned, as well as of Congress." 

" The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belong- 
ing to the United States ; and nothing in this Constitution shall be so 
construed as to prejudice any claims of the United States, or of any 
particular State. 

233 Under the Confederation, the assent of all the States was neces- 
sary to the admission of a new State. 

20 



306 VIRGINIA CONVENTION OF 1788. 

encounter with alacrity and resignation every difficulty and dan- 
ger in defence of the public liberty. 

The remainder of the Constitution was then read, and we only 
know, in the absence of any reported debate, that the part re- 
ferring to amendments to the Constitution was animadverted 
upon by its opponents. The committee then rose, and the House 
adjourned. 

On Tuesday, the twenty-fourth of June, the members began 
to assemble in the hall at an early hour, and all appeared con- 
scious that the crisis was at hand. That day or the next the final 
vote would be cast ; and the grave question, which had so long 
engaged their serious attention, and on the decision of which, in 
the estimation of both parties, depended the fate of the country, 
would be irrevocably settled. The same policy which had in- 
duced the friends of the Constitution to select Pendleton to open 
the debate on the judiciary, impelled them to select Wythe as 
the proper person to bring forward the resolution of ratification. 
As soon as the House was called to order, a motion was made 
that it should resolve itself into committee, and adopted. Pen- 
dleton, who was privy to the plans of his friends, beckoned 
Thomas Mathews to the chair. Of this gentleman, who, born 
in one of the British West India islands, had emigrated in early 
life to Norfolk, which borough he represented for many years in 
the General Assembly; who opposed with zeal those measures 
of the British Parliament that led to the Revolution, and served 
faithfully during the war (attaining the rank of lieutenant-col- 
onel); who was long Speaker of the House of Delegates; whose 
fine person, whose courteous manners, and whose lively wit 
made him popular even with men who were apt to frown on those 
lighter foibles which were quite as conspicuous in our earlier as 
in our later statesmen, and whose name, conferred upon an east- 
ern county created during his speakership, is fresh in our own 
times, we have not leisure to speak at large. Like most of the 
military men of the Revolution, he approved the Constitution, 
and faithfully executed the will of a town which celebrated the 
inauguration of that instrument with one of the most brilliant 
exhibitions in her history. 234 Wythe instantly rose to address 

234 The historical student will see the name of Thomas Mathews, as 
Speaker of the House of Delegates, certifying the ratification of the 



VIRGINIA CONVENTION OF 1788. 307 

the chair. There was need of haste; for Henry had prepared 
a series of amendments which he desired the House to adopt, 
and thus postpone the final vote on the Constitution for an in- 
definite period. He looked pale and fatigued ; and so great was 
his agitation that he had uttered several sentences before he was 
distinctly heard by those who sat near him. When he was heard, 
he was recapitulating the history of the Colonies previous to the 
war, their resistance to the oppressions of Great Britain, and the 
glorious conclusion of that arduous conflict. To perpetuate the 
blessings of freedom, he contended that the union of the States 
should be indissoluble. He expatiated on the defects of the 
Confederation. He pointed out the impossibility of securing 
liberty without society, the impracticability of acting personally, 
and the inevitable necessity of delegating power to agents. He 
recurred to the system under consideration. He admitted its 
imperfection, and the propriety of some amendments. But, he 
said, it had virtues which could not be denied by its opponents. 
He thought that experience was the best guide, and that most of 
the improvements that had been made in the science of govern- 
ment, were the result of experience. He appealed to the advo- 
cates for amendments to say whether, if they were indulged with 
any alterations they pleased, there might not be still a necessity 
of alteration ? He then proceeded to the consideration of the 
question of previous or subsequent amendments. He argued 
that, from the dangers of the crisis, it would be safer to adopt 
the Constitution as it is, and that it would be easy to obtain all 
needful amendments afterwards. He then proposed a form of 
ratification, which was handed to the clerk and read to the 
committee. 235 

Well might Wythe evince unusual emotion in presenting his 
scheme. Henry rose in a fierce humor strangely mixed with 
grief and shame. Whether he felt discomfitted by having been 

first amendment of the series proposed by Congress to the considera- 
tion of the States. [He was Grand Master of the Grand Lodge of Ma- 
sons of Virginia from October 28, 1790, to October 28, 1793. ED.] John 
Pride, another member of the Convention, was at that date (December 
J 5> I 79 1 ,) Speaker of the Senate of Virginia ; and Humphrey Brooke, 
another member, was clerk of the Senate at the time. 

235 See the form as it was adopted the following day. 



308 VIRGINIA CONVENTION OF 1788. 

forestalled by Wythe in offering his own scheme, which had been 
prepared with great care, to the committee, or was moved by the 
terms of Wythe's proposition, or was influenced by the sense of 
the imminent danger of losing the great battle which he had 
been waging in behalf of what he deemed the common liberty, 
there was something in his manner and in the subdued tones of 
his voice that foretold a fearful explosion. In the beginning of 
his speech he pitched his passion to a low key. He thought the 
proposal of ratification premature, and that the importance of 
the subject required the most mature deliberation. He dissented 
from the scheme of Wythe, because it admitted that the new 
system was capitally defective; for immediately after the pro- 
posed ratification comes the declaration that the paper before you 
is not intended to violate any of the three great rights liberty of 
the press, liberty of religion, and the trial by jury. What is the 
inference when you enumerate the rights which you are to enjoy ? 
That those not enumerated are relinquished. He then discanted 
on the omission of general warrants, so fatal in a vast country 
where no judge within a thousand miles can be found to issue a 
writ of habeas corpus, and where an innocent man might rot in 
jail before he could be delivered by process of law ; the dangers 
of standing armies in times of peace, and ten or eleven other 
things equally important, all of which are omitted in the scheme 
of Wythe. Is it the language of the Bill of Rights that these 
things only are valuable ? Is it the language of men going into 
a new government ? After pressing with great force the incon- 
sistency and futility of a ratification with subsequent amendments, 
he exhorted gentlemen to think seriously before they ratified the 
Constitution and persuaded themselves that they will succeed in 
making a feeble effort to obtain amendments. With respect to 
that part of Wythe's proposal which states that every power not 
granted remains with the people, it must be previous to adop- 
tion, or it will involve this country in inevitable destruction. To 
talk of it as a thing subsequent, not as one of your inalienable 
rights, is leaving it to the casual opinion of the Congress who 
shall take up the consideration of that matter. They will not 
reason with you about the effect of this Constitution. They 
will not take the opinion of this committee concerning its opera- 
tion. They will construe it as 1,hey please. If you place it 
subsequently, let me ask the consequences ? Among ten thou- 



VIRGINIA CONVENTION OF 1788. 309 

sand implied powers which they may assume, they may, if we 
be engaged in war, liberate every one of your slaves if they 
please. And this must and will be done by men, a majority of 
whom have not a common interest with you. 

It has been repeatedly said here that the great object of a 
national government is national defence. All the means in the 
possession of the people must be given to the government which 
is entrusted with the public defence. In this State there are two 
hundred and thirty-six thousand blacks, but there are few or 
none in the Northern States. And yet, if the Northern States 
shall be of opinion that our numbers are numberless, they may 
call forth every national resource May Congress not say that 
every black man must fight? Did we not see a little of this last 
war ? We were not so hard pushed as to make emancipation 
general, but Acts of Assembly passed that every slave who 
would go to the army should be free. Another thing will con- 
tribute to bring this thing about. Slavery is detested ; we feel 
its fatal effects ; we deplore it with all the pity of humanity. Let 
all these considerations, at some future period, press with full force 
upon the minds of Congress. They will search that paper and 
see if they have the power of manumission. And have they 
not, sir ? said Henry. Have they not the power to provide for 
the general defence and welfare ? May they not think that these 
call for the abolition of slavery ? May they not pronounce all 
slaves free, and will they not be warranted by that power ? This 
is no ambiguous implication or logical deduction. That paper 
speaks to the point. They have the power in clear, unequivocal 
terms, and will clearly and certainly exercise it. The majority of 
Congress is to the North, and the slaves are to the South. In 
this situation I see great jeopardy to the property of the people 
of Virginia, and their peace and tranquility gone away. Dwell- 
ing on this topic for some time, he recurred to the subject of 
subsequent amendments, and denounced the novelty as well as 
the absurdity of such a proposition. He said he was distressed 
when he heard the expression from the lips of Wythe. It is a 
new thought altogether. It is opposed to every idea of forti- 
tude and manliness in the States or in anybody else. Evils ad- 
mitted in order to be removed subsequently, and tyranny sub- 
mitted to, in order to be excluded by a subsequent alteration, are 
things totally new to me. " But I am sure," he said, " that the 



310 VIRGINIA CONVENTION OF 1788. 

gentleman meant nothing but to amuse the committee. I know 
his candor. His proposal is an idea dreadful to me. I ask, does 
experience warrant such a thing from the beginning of the world 
to the present day? Do you enter into a compact of govern- 
ment first, and afterwards settle the terms of the government ? 
It is admitted by everyone that this is a compact. Although the 
Confederation be lost, it is a constitutional compact, or something 
of that nature. I confess I never heard of such an idea before. 
It is most abhorrent to my mind. You endanger the tranquility 
of your country. You stab its repose, if you accept this gov- 
ernment unaltered. How are you to allay animosities ? For 
such there are, great and fatal. He flatters me, and tells me that 
I can reconcile the people to it. Sir, their sentiments are as firm 
and steady as they are patriotic. Were I to ask them to apos- 
tatize from their ancient religion, they would despise me. They 
are not to be shaken in their opinions with respect to the pro- 
priety of preserving their rights. You can never persuade them 
that it is necessary to relinquish them. Were I to attempt to 
persuade them to abandon their patriotic sentiments, I should 
look on myself as the most infamous of men. I believe it to be 
a fact that the great body of the yeomanry are in decided oppo- 
sition to that paper on your table. I may say with confidence 
that for nineteen counties adjacent to each other, nine-tenths of 
the people are conscientiously opposed to it. I have not hunted 
popularity by trying to injure this government. Though public 
fame may say so, it was not owing to me that this flame of oppo- 
sition has been kindled and spread. These men will never part 
with their political opinions. Subsequent amendments will not 
do for men of this cast. You may amuse them by proposing 
amendments, but they will never like your government." 

He invoked the committee to look to the real sentiments of the 
people even in the adopting States. " Look, " he said, " at Penn- 
sylvania and Massachusetts. There was a majority of only nine- 
teen in Massachusetts. We are told that only ten thousand were 
represented in Pennsylvania, although seventy thousand were 
entitled to be represented. Is not this a serious thing? Is it 
not worth while to turn your eyes from subsequent amendments 
to the situation of your country ? Can you have a lasting union 
in these circumstances ? It will be in vain to expect it. But if 
you agree to previous amendments, you shall have union firm 




VIRGINIA CONVENTION OF 1788. 311 

and solid. I cannot conclude without saying that I shall have 
nothing to do with the Constitution, if subsequent amendments 
be determined upon. I say I conceive it my duty, if this gov- 
ernment is adopted before it is amended, to go home. I shall 
act as my duty requires. Every other gentleman will do the 
same. Previous amendments are, in my opinion, necessary to 
procure peace and tranquility. I fear, if they be not agreed to, 
every movement and operation of government will cease ; and 
how long that baneful thing, civil discord, will stay from this 
country, God only knows. When men are free from constraint, 
how long will you suspend their fury? The interval between 
this and bloodshed is but a moment. The licentious and the 
wicked of the community will seize with avidity everything you 
hold. In this unhappy situation, what is to be done? It sur- 
passes my stock of wisdom. If you will, in the language of 
freemen, stipulate that there are certain rights which no man 
under heaven can take from you, you shall have me going along 
with you ; not otherwise." 

He then informed the committee that he had a resolution 
prepared to refer a Declaration of Rights, with certain amend- 
ments to the most exceptionable parts of the Constitution, to the 
other States of the confederacy, for their consideration pre- 
vious to its ratification. The clerk read the resolution, the 
Declaration of Rights, and the amendments, which were nearly 
the same as those ultimately proposed by the Convention 236 
When the clerk had read the resolution and amendments, Henry 
resumed his remarks, and by considerations drawn from our 
domestic and foreign affairs, enforced the necessity of the adop- 
tion of previous amendments. 

Randolph replied to Henry. He declared that he anticipated 
this awful period, but he confessed that it had not become less 
awful by familiarity with it. Could he believe that all was tran- 
quil as was stated by the gentleman, that no storm was ready to 
burst, and that previous amendments were possible, he would 
concur with the gentleman ; for nothing but the fear of inevitable 
destruction compelled him to approve the Constitution. " But," 
says Randolph, "what have I heard to-day? I sympathized 
most warmly with what other gentlemen said yesterday, that, 

236 See them in the Appendix. 







312 VIRGINIA CONVENTION OF 1788. 

let the contest be what it may, the minority should submit to 
the majority. With satisfaction and joy I heard what he then 
said that he would submit, and that there should be peace, if 
his power could procure it. What a sad reverse to-day ! Are 
we not told by way of counterpart to language that did him 
honor, that he would secede? I hope he will pardon and correct 
me if I mis-recite him ; but, if not corrected, my interpretation 
is that secession by him will be the consequence of adoption 
without previous amendments." (Here Henry rose and denied 
having said anything of secession ; but he had said he would 
have no hand in subsequent amendments ; that he would remain 
and vote, and afterwards he would have no business here). " I 
see," continued Randolph, "that I am not mistaken. The 
honorable gentleman says he will remain and vote, but after that 
he has no business here, and that he will go home. I beg to 
make a few remarks about secession. If there be in this house 
members who have in contemplation to secede from the majority, 
let me conjure them by all the ties of honor, and of duty, to 
consider what they are about to do. Some of them have more 
property than I have, and all of them are equal to me in per- 
sonal rights. Such an idea of refusing to submit to the decision 
of the majority is destructive of every republican principle. It 
will kindle a civil war, and reduce everything to anarchy, uncer- 
tainty and confusion. To avoid a calamity so lamentable, I would 
submit to the Constitution, if it contained greater evils than it does. 
What are they to say to their constituents when they go home ? 
' We come to tell you that liberty is in danger, and though the 
majority are in favor of it, you ought not to submit? Can any 
man consider, without shuddering with horror, the awful conse- 
quences of such desperate conduct ? I conjure all to consider 
the consequences to themselves as well as to others. They them- 
selves will be overwhelmed in the general disorder." 

When Randolph closed his eloquent and patriotic invocation 
to the members, he considered the scheme proposed by Wythe, 
and showed by a minute examination of its words that it secured 
all other rights as well as the liberty of speech, and of the press, 
and trial by jury. He answered the reasoning of Henry in 
respect of the abolition of slavery by Congress. He said he 
hoped that none here, who, considering the subject in the calm 
light of philosophy, will advance an objection dishonorable to Vir- 



VIRGINIA CONVENTION OF 1788. 313 

ginia; that at the moment they are securing the rights of their 
citizens, an objection is started that there is a spark of hope 
that those unfortunate men now held in bondage, may, by the 
operation of the general government, be made free. But he 
denied that any power in the case was granted to the general 
government, and defied any man to point out the grant. He 
examined the clause in relation to the importation of persons 
prior to 1808, and proved that no such power could be drawn 
from that source, and he instanced the extradition of persons 
held to labor as a recognition of the right of property in slaves, 
and of the co-operation of the government to sustain that right. 
He recited his former exposition of the general welfare clause, 
and proved incontestibly that no other construction than his own 
could be placed upon it. He then reviewed all the articles in the 
schedule presented by Henry, and expressed his opinions re- 
specting them in detail, concluding with a manly and pathetic 
appeal to the members not to reject the Constitution and sunder 
Virginia from her sister States, for the Confederation was now 
no more, but to encounter the risk of obtaining subsequent 
amendments, and preserve the Federal union. 

Mason rose to correct a remark made by Randolph in respect 
of the right of regulating commerce and navigation contained in 
the Constitution, and made a most interesting disclosure. Ran- 
dolph had said that the right of regulation as it now stands was 
a sine qua non of the Constitution. Mason said he differed from 
him. It never was and, in his opinion, never would be. " I will 
give you," he said, "to the best of my recollection, the history 
of that affair. This business was discussed at Philadelphia for 
four months, during which time the subject of commerce and 
navigation was often under consideration ; and I assert that eight 
States out of twelve, for more than three months, voted for re- 
quiring two-thirds of the members present in each House to pass 
commercial and navigation laws. True it is that it was after- 
wards carried by a majority as it now stands. If I am right, 
there was a great majority for requiring two-thirds of the States 
in this business, till a compromise took place between the North- 
ern and the Southern States, the Northern States agreeing to the 
temporary importation of slaves, and the Southern States con- 
ceding in return that navigation and commercial laws should be 
on the footing on which they now stand. These are my reasons 







314 VIRGINIA CONVENTION OF 1788. 

for saying that this was not a sine qua non of their concurrence. 
The Newfoundland fisheries will require that kind of security 
which we are now in want of. The Eastern States, therefore, 
agreed at length that treaties should require the consent of two- 
thirds of the members present in the Senate." 

Now, for the first time, John Dawson, who was the brother-in- 
law of Monroe, as well as his colleague from Spotsylvania, who 
was frequently a member of the House of Delegates, and was 
subsequently, for a long period, a member of the House of Rep- 
resentatives, and whose elegant address and sumptuous apparel 
were throughout life in strong contrast with his hatred of a 
splendid government, and with the stern severity of his republi- 
can principles, addressed the committee. He reviewed the Con- 
stitution at large and spoke for an hour with much earnestness 
in opposition to the Constitution, declaring at the close of his 
speech " that liberty was a sacred deposit which he would never 
part with, and that the cup of slavery, which would be pressed 
to the lips of the people by the adoption of the Constitution, was 
equally unwelcome to him, whether administered by a Turk, a 
Briton, or an American." 23T 

Grayson followed in a rapid review of those parts of the new 
system which he considered radically defective, urged the indis- 
pensable necessity of previous amendments, and pointed out with 
unerring sagacity the ultimate destruction of the commercial and 
manufacturing interests of the Southern States which must result 
from the adoption of the Constitution. He concluded by saying 
that but for one great character so many men could not be found 
to support such a system. "We have one ray of hope," he 
said. "We do not fear while he lives. But we can expect only 
his fame to be immortal. We wish to know who, besides him, 
can concentrate the confidence and affections of all America? " 



237 Years after Dawson was in his grave, and half a century after the 
date of the Convention, a friend described him to me as having red 
hair, most recherche in his dress, and wearing fair top boots. His at- 
tention to his dress gave him a sobriquet, which is long since forgotten 
and which I shall not revive. He was amiable in his deportment. He 
was sent to France on an important occasion with despatches. Henry 
was very fond of him. 

[The sobriquet was " Beau," as is still quite generally recollected. 
Dawson died in Washington, D. C., March 30, 1814, aged fifty-two 
years. ED.] 



VIRGINIA CONVENTION OF 1788. 315 

Madison then rose, and in an argument of extreme beauty and 
force, addressed alike to the pride, the interests, and the honor 
of the House, demonstrated the necessity of adopting the Con- 
stitution, with a firm reliance on the justice and magnanimity of 
our sister States. He spoke of the admiration with which the 
world regarded the United States for the readiness and ability 
with which, in a time of revolution, they had formed their govern- 
ments on the soundest principles of public policy. But why this 
wonder and applause ? Because the work was of such magni- 
tude, and was liable to be frustrated by so many accidents. How 
much more admiration will the example of our country inspire 
should we be able peaceably, freely, and satisfactorily to establish 
a general government when there is such a diversity of opinions 
and interests, and when our councils are not cemented and stim- 
ulated by a sense of imminent danger? He spoke of the 
difficulty and delicacy of forming a system of government for 
thirteen States unequal in territory and population, and possessing 
various views and interests, and the necessity of a spirit of com- 
promise. He then reverted to the clashing opinions of the 
opponents of the Constitution. Some of them thought that it 
contained too much State influence ; 238 others that it was consol- 
idated. Some thought that the equality of the States in the 
Senate was a defect ; others regarded it as a virtue. He discussed 
the scheme of ratification proposed by Wythe, and urged that 
it was not only not liable to the objections offered by Henry, but 
was fully adequate to secure all the great rights supposed to be 
imperiled by the Constitution. He followed mainly in the track 
of Henry's arguments, and dwelt upon the danger apprehended 
by that gentleman to the slave property of the South. " Let me 
ask," says Madison, "if even Congress should attempt anything 
of the kind, would it not be an usurpation of power?" There 
is no power to warrant it in that paper. If there be, I know it 
not. But why should it be done ? The honorable gentleman 
says for the general welfare ; it will infuse strength into our 
system. Can any member of this committee suppose that it will 
increase our strength ? Can any one believe that the American 

238 Madison must have alluded to the views of persons in the General 
Convention, and beyond the limits of Virginia ; for certainly no such 
opinion was expressed in the present Convention, unless he descended 
so far as to allude to the hypothetical argument of Grayson. 



816 VIRGINIA CONVENTION OF 1788. 

councils will come into a measure which will strip them of their 
property, discourage and alienate the affections of five-thirteenths 
of the Union ? Why was nothing of this sort aimed at before ? 
I believe such an idea never entered into an American breast ; 
nor do I believe it ever will, unless it will enter into the heads of 
those gentlemen who substitute unsupported suspicions for rea- 
sons. He concluded by observing that such of Henry's amend- 
ments as were not objectionable might be recommended for 
adoption in the mode prescribed by the Constitution ; not that 
those amendments were necessary, but because they can produce 
no possible danger, and may promote a spirit of peace. " But 
I never can consent," he said, "to previous amendments ; be- 
cause they are pregnant with dreadful dangers." 

Henry replied to the objections of Randolph to his schedule 
of amendments, and to the arguments of Madison. When he 
had performed this office in detail, he concluded his speech in a 
strain of lofty and pathetic eloquence. " The gentleman (Madi- 
son) has told you of the numerous blessings which he imagines 
will result to us and the world in general from the adoption of 
this system. I see the awful immensity of the dangers with 
which it is pregnant. I ?ee it I feel it. I see beings of a higher 
order anxious concerning our decision. When I look beyond 
the horizon that binds human eyes, and see the final consumma- 
tion of all human things, and see those intelligent beings which 
inhabit the ethereal mansions, reviewing the political decisions 
and revolutions which in the progress of time will happen in 
America, and the consequent happiness or misery of mankind, I 
am led to believe that -much of the account on one side or the 
other will depend on what we now decide. Our own happiness 
alone is not affected by the event. All nations are interested in 
the determination. We have it in our power to secure the hap- 
piness of one-half of the human race. Its adoption may involve 
the misery of the other hemispheres." Here we are told "that 
a storm suddenly rose. It grew dark. The doors came to with 
a rebound like a peal of musketry. The windows rattled ; the 
huge wooden structure rocked ; the rain fell from the eaves in 
torrents, which were dashed against the glass ; the thunder 
roared ; and the lightning, casting its fitful glare across the anx- 
ious faces of the members, recalled to the mind those terrific 
pictures which the imaginations of Dante and Milton have drawn 



VIRGINIA CONVENTION OF 1788. 317 

of those angelic spirits that, shorn of their celestial brightness, 
had met in council to war with the hosts of Heaven." In the 
height of the confusion Henry stood unappalled, and, in the lan- 
guage of a member present, "rising on the wings of the tempest, 
he seized upon the artillery of Heaven, and directed its fiercest 
thunders against the heads of his adversaries." The scene, we 
are told, became insupportable, and the members rushed from 
their seats into the body of the House. 239 

While the members were moving about the House, and were 
preparing to depart, a gleam of sunshine penetrated the hall, and 
in a few moments every vestige of the tempest was lost in a glo- 
rious noon-day of June. The House resumed its session ; when 
Nicholas proposed that the question should be put at eleven j 
o'clock next day. _Clay objected. Ronald also opposed the 
motion, and wished amendments should be prepared by a com- j 
mittee before the question was taken. Nicholas contended that 
the language of the proposed ratification would secure all that 
was desired, as it declared that all the powers vested in the 
Constitution were derived from the people, and might be resumed 
by them whensoever they should be perverted to their injury 
and oppression, and that every power not granted remained at 
their will. For, said Nicholas, these expressions will become a 
part of the contract. If thirteen individuals are about to make 
a contract, and one agrees to it, but at the same time declares 
that he understands its meaning, signification and intent to be 
what the words of the contract plainly and obviously denote ; 
that it is not to be construed as to impose any supplementary 
condition upon him ; and that he is to be exonerated from it 
whensoever any such imposition shall be attempted I ask, said 
Nicholas, whether in this case these conditions on which he 
assented to it, would not be binding on the other twelve ? In 
like manner, these conditions will be binding on Congress. 

Ronald replied that unless he saw amendments, either previous 
or subsequent, introduced to secure the liberties of his constit- 
uents, he must vote, though much against his inclination, against 
the Constitution. 

239 Judge Archibald Stuart, of Augusta, then a young man, and a 
member of the Convention, and a friend of the Constitution, has de- 
scribed this scene with great animation in a letter to Wirt. Life of 
Henry, 313. 



318 VIRGINIA*CONVENTION OF 1788. 

Madison conceived that what defects there might be in the 
Constitution might be removed in the mode prescribed by itself. 
He thought a solemn declaration of our essential rights unneces- 
sary and dangerous ; unnecessary, because it was evident that 
the general government had no power but what was given it, and 
the delegation alone warranted the exercise of power; danger- 
ous, because an enumeration, which is not complete, is not safe. 
Such an enumeration could not be made within any compass of 
time as would be equal to a general negation such as was pro- 
posed in the form presented by Wythe. He renewed his declara- 
tion that he would assent to any subsequent amendments that 
were not dangerous. 

The committee then rose, and the House adjourned, to meet 
next day at ten o'clock. 

On Wednesday morning the twenty-fifth day of June, before 
the bell had announced the hour often, every member was in his 
seat, and an eager and anxious crowd filled the hall. It was 
known that the final vote would be cast in the course of the day, 
and it was generally believed that the Constitution would be rati- 
fied ; but by what majority, was a question of doubt and appre- 
hension to its warmest friends. The manoeuver of Henry, which 
had at a single blow struck from the list of its friends nearly the 
whole of the Kentucky delegation, was freshly remembered ; 
some such dexterous and daring movement might affect the votes 
of four or five members who had hitherto been friendly, and the 
loss of five votes would turn the scale and destroy the new sys- 
tem. And it was inferred from the fierce tone of Henry in the 
debate of the previous day, that, if the Constitution were carried, 
he might, on the announcement of the vote, rise from his seat, 
protest against the action of a small majority on so vital a ques- 
tion, and, at the head of the minority, withdraw from the Con- 
vention. The secession of so large a number of the most able 
and most popular men in the Commonwealth would in every 
aspect be fatal to the Constitution. The result must follow either 
that the friends of the new system would be compelled to recon- 
sider the vote of ratification, and accept the schedule of previous 
amendments proposed by Henry, or remain firm and uphold 
their decision by an appeal to arms. Either alternative was most 
unwelcome, and fraught with extreme peril. To rescind the vote 
of ratification at a time when nine States had adopted the new 



VIRGINIA CONVENTION OF 1788. 319 

system and would proceed to organize the Federal Government 
in pursuance of its provisions, 2 * and to surrender the fruits of a 
victory so dearly earned, involved not only a deep sense of 
humiliation in the minds of the majority, but a complete frustra- 
tion of all their plans and all their hopes. In many respects the 
delay would be fatal. It was plain that Washington could not \ 
have been chosen the head of a government of which Virginia 
was not a component part, and the danger likely to arise from the 
selection of any other individual to carry the new system into 
effect was imminent. There was another danger, which, though 
it might not so keenly affect the sensibilities of the majority, was 
yet appalling. As the new President would certainly be a North- 
ern man, and probably the Vice-President also, and as, in the 
organization of the new system, some measures not agreeable to 
the taste or to the feelings of its opponents might be adopted, 
hostility to the Constitution, already great, might gain strength, 
and a confederacy, consisting of Virginia, Kentucky, and North 
Carolina in the first instance, and embracing ultimately South 
Carolina and Georgia, would be called into existence. Such 
were the difficulties to be apprehended from the first alternative. 
But alarming and perilous as the first alternative decidedly was, 
the second was still more formidable. If the majority resolved 
to sustain their vote by a resort to arms, to what quarter would 
they look for help ? Not to the General Assembly, which was 
shortly to meet ; for that body, as the fact proved, was opposed 
to the new scheme, and, glad of an opportunity of overthrowing 
it, would have upheld its opponents. Nor could they look for 
support to the people ; for, as was generally believed at the time, 
two-thirds of the people at least regarded the new scheme with 
apprehension and dislike. 241 The only resource of the friends of 

240 Henry stated in debate this day that " we are told that nine States 
have adopted it"; and it is probable that Madison had heard from 
New Hampshire that that State would certainly adopt the Constitution, 
which it had actually done on the 2ist, thVee days before ; but the fact 
could not have been known in Richmond on the 25th. Indeed, Harri- 
son did not allude to the act of New Hampshire in his speech delivered 
during the morning, when he spoke of the course of that State respect- 
ing amendments. 

241 Judge Marshall states that, "in some of the adopting States it is 
scarcely to be doubted that a majority of the people were in the oppo- 
sition"; and he doubtless had reference to Virginia, the State he knew 



320 VIRGINIA "CONVENTION OF 1788. 

the Constitution would have been to appeal to the new government, 
and bring about a war between the non-slaveholding and the 
slaveholding States ; the result of which, whether prosperous or 
adverse to the arms of the new government, would equally 
destroy all hopes of a friendly union of the States. 

On the other hand, the opponents of the Constitution were in 
a dangerous mood. They believed that instrument at best, with 
the aid of all the amendments which were likely to be adopted, 
to be fatal to the public liberty ; and they thought that they had 
gone to the farthest verge of concession in assenting to its ratifi- 
cation with the hope of subsequent amendments. But it now 
seemed that they were not to obtain even the boon of subse- 
quent amendments. The liberal promises which had been dealt 
out were all a sham. Strange rumors were indeed abroad. It 
was first mentioned in whispers, and was then currently reported 
that, as soon as the Constitution was ratified, its leading friends 
would, under various pretexts, quit the city and leave the ques- 
tion of future amendments to its fate, with a deliberate design to 
prevent their incorporation into the new system. To incur a 
defeat on the question of the ratification of the Constitution was 
a source of the deepest mortification to its opponents ; but to be 
tricked into the bargain was past bearing. They would not sub- 
mit at one and the same time to a loss of liberty and to a flagrant 
outrage. The session of the Assembly was at hand. That body 
must be looked to to save the country. It might refuse to recog- 
nize the new system ; might refuse to pass the necessary laws for 
carrying it into effect, and might refuse to order an election of rep- 
resentatives, or an election of senators, until the proposed amend- 
ments were made a part of the Constitution. In the meantime, 
it might appoint commissioners to ascertain the terms of a union 
with North Carolina, which State was determined to reject the 
Constitution, 2412 and might hold the militia in readiness for contin- 



best. He also confirms the remark of Grayson, " that had the influ- 
ence of character been removed, the intrinsic merits of the instrument 
would not have secured its adoption." Life of Washington, II, 127. 
I quote the second edition of the work, which is in every possible re- 
spect superior to the first. Had the work appeared originally as it now 
is, the fame of the author would have been greatly enhanced. 

242 North Carolina rejected the Constitution by a majority of one hun- 
dred. The vote stood one hundred and eighty-four to eighty-four. 



VIRGINIA CONVENTION OF 1788. 321 

gencies. Never, at any period in the history of the Colony or 
of the Commonwealth, did a deliberative assembly meet in such 
painful circumstances of doubt and alarm as on this memorable 
morning. 

The House immediately went into committee, Pendleton call- 
ing Mathews to the chair. Nicholas was the first to break 
silence. He said that he did not wish to enter into further 
debate, that delay could only serve the cause of those who 
wished to destroy the Constitution, and that, should the Consti- 
tution be ratified, amendments might be adopted recommending 
Congress to alter that instrument in the mode prescribed by 
itself. He warmly repelled the charge that the friends of the 
Constitution meditated a flight after its adoption, and defied the 
author of the charge to establish its truth. He declared his 
own wish for amendments ; thought the amendments secured in 
the form proposed by Wythe were satisfactory, but was willing 
to agree to others which would not destroy the spirit of the 
Constitution. He moved that the clerk read the form of ratifi- 
cation proposed by Wythe, that the question might be put upon 
it. The clerk read the form, and also read, at the suggestion 
of Tyler, the bill of rights and the amendments proposed by 
Henry. 

The urgency of the crisis brought Harrison to the floor. 
This venerable man had in all the great conjunctures of a quarter 
of a century then past acted an honorable part. He was a 
member of that celebrated committee which, in 1764, had drawn 
the memorials to the king, the lords, and the commons of England. 
He was an old member of high standing in the House of Bur- 
gesses in 1765, when Henry offered his resolutions against the 
Stamp Act. In all the early Conventions he had strenuously 
upheld the rights of the Colony and the dignity of the new Com- 
monwealth. In Congress he had been during the war at the 
head of the most important military committees ; had been 
deputed on emergencies to the headquarters of the army, and 
had presided in the Committee of the Whole when the resolu- 
tion of independence and the Declaration of Independence had 

The Convention began its session on the 2ist of June and, of course, 
was sitting when the vote of Virginia was taken. Wheeler's History 
of North Carolina, page 60. It was not until the 2ist of November of 
the following year that the Federal Constitution was adopted. 



322 VIRGINIA CONVENTION OF 1788. 

been approved, and when the Articles of Confederation had been 
prepared by Congress. He rarely spoke at great length, and 
his speeches were adapted rather to a council of men charged 
with responsible duties to be instantly performed than to popular 
bodies; but his great experience as a statesman, and his practical 
sense, expressed in a short harangue, had often more influence 
than the well-reasoned speeches of ordinary orators. He now 
rose to utter his solemn protest against the ratification of the 
Constitution. He denounced the policy of trusting to future 
amendments. When the Constitution was once ratified it was 
beyond our reach. Even future amendments might be evaded 
by the flight of its friends ; and if adopted by the House, what 
was the hope of their ultimate success ? The small States, he 
said, refused to come into the Union without extravagant con- 
cessions : and can it be supposed that those States, whose interest 
and importance are so greatly enhanced under the Constitution 
as it stands, will consent to an alteration that will diminish their 
influence? Never! Let us act now, he said, with that fortitude 
which animated us in our resistance to Great Britain. He entered 
into a minute analysis of the views of the different States in 
respect of amendments, and drew the conclusion that seven States 
were anxious to obtain them. Can it be doubted that, if these 
seven States make amendments a condition of their accession, 
they will be discarded from the union ? Let us, then, not be 
persuaded into the opinion that, if we reject the Constitution, we 
will be cast adrift and abandoned. He had no such idea. He 
was attached to the union. A vast majority of the people were 
attached to it. But he thought he saw a desire to make a great 
and powerful government. Look at the recent settlement of the 
country, and its present population and wealth, and who can fail 
to perceive that such a scheme was premature and impossible. 
National greatness ought not to be forced. Like the formation 
of great rivers, it should be gradual and progressive. Gentlemen 
tell us that we must look to the Northern States for help in 
danger. Did they relieve us during the Revolution ? They left 
us to be buffeted by the British. But for the fortunate aid of 
France we should have been ruined. He concluded by an appeal 
to Heaven that he cherished the union ; but he deemed the 
adoption of the Constitution without previous amendments to be 
unwarrantable, precipitate, and dangerously impolitic. 



VIRGINIA CONVENTION OF 1788. 323 

Madison spoke with something more than his usual courtesy. 
He would not have risen, he said, but for the remarks which had 
fallen from Harrison. He protested against the unkind sus- 
picions of withdrawal which had been raised against the friends 
of the Constitution on the subject of- amendments, and argued 
from Harrison's statements that, if seven States desired amend- 
ments, the accession of Virginia would secure the success of the 
common object. It was easy to obtain amendments hereafter ; 
but, if we called upon the States to rescind what they had done, 
to confess that they have done wrong, and to consider the sub- 
ject anew, it would produce delays and dangers which he shud- 
dered to contemplate. Let us not hesitate in our choice, and he 
declared that there was not a friend of the Constitution that 
would not concur in procuring amendments. 

Monroe followed Madison, and contended that previous 
amendments alone were worth anything. Would the small 
States refuse to grant them, and make enemies of the large and 
powerful States ? He did not think that the Federal Govern- 
ment would immediately infringe the rights of the people, but 
he thought that the operation of the government would be op- 
pressive in process of time. He pronounced the argument of 
Madison, derived from the impracticability of obtaining previous 
amendments, fallacious, and a specious evasion. The Constitu- 
tion is admitted to be defective. Did ever men meet with so 
loose and uncurbed a commission as the General Convention ? 
And can it be supposed that subsequent reflection on the plan 
which they put forth may not make it more efficient and com- 
plete? As to the amendments presented to the committee, they 
are acknowledged to be harmless ; but their previous acceptance 
will secure our rights. He hoped that gentlemen would concur 
in them. 

The friends of the Constitution well knew that Henry would 
address some parting words to the House, and had foreseen the 
necessity of presenting the new system in its most favorable 
light when the question was about to be taken. The choice of 
an individual to perform that delicate office was made with their 
usual tact. Second to Henry, and second to Henry alone, in 
action, in a varied and splendid eloquence, and in all those fac- 
ulties that enable men to move popular assemblies, stood con- 
fessedly a young man, then entering his thirty-fourth year, whose 



324 VIRGINIA CONVENTION OF 1788. 

name, becoming extinct in the early part of the present century 
by the sudden and untimely death of its representative while 
engaged in the naval service of his country in a distant sea, was 
widely known and honored in his generation, but which, rarely 
mentioned in the political^ controversies of the day, has almost 
slipped from the memory of men. On the field of battle, at the 
bar, and in the House of Delegates he held a distinguished rank 
among his compeers ; but, owing to his attendance on the courts 
then sitting as the Attorney- General of the Commonwealth, he 
did not appear often in the House, and had not opened his lips 
in debate. Of that brilliant group of soldier-statesmen, who 
drew their inspiration from the counsels of Wythe, and whose 
virtues shed renown not only on Virginia, but on the Union at 
large, none more eminently merits the grateful and affectionate 
regard of succeeding times than James Innes. Like Henry, he 
was the son of a Scotchman the Rev. Robert Innes, who was 
a graduate of Oxford; who had come over to this country some 
years before the birth of James, on the recommendation of the 
Bishop of London, and who became the rector of the parish of 
Drysdale, in the county of Caroline. His classical training 
James received from his father, who intended him, the youngest 
of three sons, for the Church, and who bequeathed to him his 
library. In 1771 he entered William and Mary College, and in 
a class consisting of Elands, Boushes, Diggeses, Fitzhughs, 
Madisons, Maurys, Pages, Randolphs, Rootes, Stiths, and 
Wormleys, he was singled out as the most eminent for skill in 
declamation, for fluent elocution, and for elegant composition. 
George Nicholas, Bishop Madison, St. George Tucker, then a 
clever youth, who had come over from Bermuda to attend col- 
lege, and who magnanimously took the side of his foster-home 
in the approaching war, and Beverley Randolph, were his friends 
and associates. 243 He had exhausted his slender patrimony in 
paying his college bills, and accepted the office of usher, under 
Johnson, in the school of humanity. At the beginning of the 
troubles he rallied a band of students, and secured some stores 
which were about to be secreted by Dunmore; and, as a reward 
of his patriotism, was dismissed by the faculty, which as yet re- 



243 See the class of 1771 in the general catalogue of William and 
Mary. 



VIRGINIA CONVENTION OF 1788. 325 

mained faithful to the Crown. 344 In February, 1776, he was 
elected captain of an artillery company, and marched to Hamp- 
ton to repress the incursions of the enemy. 245 In November, 
1776, he was appointed lieutenant-colonel of one of the six bat- 
talions of infantry to be raised on the Continental establishment; 
and joining the Northern army, he became one of the aids of 
Washington, and shared in the glory of Trenton, Princeton, 
Brandy wine, Germantown, and Monmouth. 246 His regiment 
having dwindled, from the casualties of war, beneath the dignity 
of a lieutenant-colonel's command, he resigned his commission, 
and returned to Virginia. In October, 1778, he was appointed 
by the Assembly one of the commissioners of the navy. 247 In 
1780 he entered the House of Delegates as a member from James 
City, where he made his first essay as a debater. At the solici- 
tation of Washington he raised a regiment for home defence, 
and was present with his command at the siege of York. He 
then devoted himself to the profession of law, and attained a 
high rank at the bar. His popular manners, his classical taste, 
and his captivating eloquence soon attracted public attention, and 
he was elected the successor of Edmund Randolph in the office 
of Attorney-General. In the faculty of addressing popular 




244 Letter of Miss Lucy H. Randolph, September 24, 1855. Miss Ran- 
dolph is a granddaughter of Colonel Innes. I trust that she will see 
that, wherein I have not adopted her statements, I have record evi- 
dence beyond dispute to sustain me. 

245 Virginia Gazette of that date. For his appointment as lieutenant- 
colonel, see Journal of the House of Delegates, November 13, 1776, 
page 54. George Nicholas was appointed major at the same time ; also 
Holt Richeson. For the settlement of the father of Innes in Drysdale 
parish, see Bishop Meade's Old Churches, I, 414. 

246 Burti 1 s Virginia, IV, 234. 

247 Journal of the House of Delegates, October 21, 1778, page 22. It 
has been stated that Colonel Innes was at the battle of Monmouth. An 
anecdote, told of Innes in connection with that battle, has been long 
current in Virginia, for the truth of which I do not avouch. It seems 
that he at once comprehended the reason of Lee's retreat, and being 
asked why he did not communicate his impressions to Washington 
when that gentleman overhauled Lee in rough terms, he said that at 
that moment he would as soon have addressed the forked lightning. 
Innes was born in 1754. His mother was Miss Catharine Richards, of 
Caroline. 



326 VIRGINIA CONVENTION OF 1788. 

bodies, of all his contemporaries he approached, in the general 
estimation, nearest to Patrick Henry. There were those, who, 
fascinated by the graces of his manner, by his overwhelming ac- 
tion, by the majestic tones of his voice, and by his flowing pe- 
riods, thought him more eloquent than Henry. We know that 
the most distinguished living Virginian, who had heard both 
speakers, has pronounced Innes the most classical', the most ele- 
gant, and the most eloquent orator to whom he ever listened. 248 
Born in Caroline, the residence of Pendleton, and the pupil of 
Wythe, he possessed the confidence of those illustrious men, 
who watched with affectionate attachment the development of his 
genius, who witnessed his finest displays, and who, in their ex- 
treme old age, deplored his untimely death. 

His physical qualities marked him among his fellows as dis- 
tinctively as his intellectual. His height exceeded six feet. His 
stature was so vast as to arrest attention in the street. He was 
believed to be the largest man in the State. He could not ride 
an ordinary horse, or sit in a common chair, and usually read or 
meditated in his bed or on the floor. On court days he never 
left his chamber till the court was about to sit, studying all his 
cases in a recumbent posture. It is believed that he was led to 
adopt this habit not so much from his great weight as from a 
weakness induced by exposure during the war. In speaking, 
when he was in full blast, and when the tones of his voice were 
sounding through the hall, the vastness of his stature is said to 
have imparted dignity to his manner. His voice, which was of 
unbounded power and of great compass, was finely modulated ; 
and in this respect he excelled all his compeers with the exception 
of Henry. From his size, from the occasional vehemence of his 
action, and from a key to which he sometimes pitched his voice, 
he is said to have recalled to the recollections of those who had 



248 Such is the opinion of Governor Tazewell, who, when a young 
man, was accustomed to hear Innes. I once asked Governor Tazewell 
what he thought of Innes as a lawer. " Innes, sir, was no lawyer (that 
is, he was not as profound a lawyer as Wythe, or Pendleton, or Thom- 
son Mason, who were eminent when Innes was born) ; but he was the 
most elegant belles-lettres scholar and the most eloquent orator I 
ever heard." It must be remembered that Innes, at the time of his 
death, in 1798, had not completed his forty-fourth year; and that Wythe 
and Pendleton attained to nearly double his years. 



VIRGINIA CONVENTION OF 1788. 327 

heard Fox the image of that great debater. A miniature by 
Peale, still in the possession of his descendants, has preserved 
his features to posterity. He is represented in the dress of a 
colonel in the Continental line ; and we gather from that capa- 
cious and intellectual brow, shaded by the fresh auburn hair of 
youth, those expressive blue eyes, that aquiline nose, some notion 
of that fine caste of features and that expression which were so 
much admired by our fathers. His address was in the highest 
degree imposing and courteous ; and in the social circle, as in 
debate or at the bar, his classical taste, and an inexhaustible 
fund of humor, of wit, of accurate and varied learning, kindly 
and generously dispensed, won the regard and excited the admi- 
ration of all. 

From the day when a youth he entered the family of Wash- 
ington to the day of his death, Innes shared the confidence of 
his chief. 249 He was dispatched by him on a secret mission to 
Kentucky at a dangerous crisis, and was tendered the office of 
Attorney-General of the United States, which the state of his 
health and the condition of his family compelled him to decline. 
Had he accepted that appointment, and had his life been pro- 
tracted to the age of his colleagues and associates of Madison, 
of Monroe, of Marshall, and of Stuart, of Augusta his history, 
instead of being made up of meagre shreds collected from old 
newspapers, from the scattering entries in parliamentary journals, 
from moth-eaten and half-decayed manuscripts, from the testi- 
mony of a few solitary survivors of a great era, and from the 
fond but hesitating accents of descendants in the third and fourth 
generation, might have been yet living on a thousand tongues, 
and his name have been, in connection with the names of the 
friends and co-equals of his youth, one of the cherished house- 
hold words of that country, whose infancy had been protected by 
his valor, and whose glory had been enhanced by the almost 
unrivaled splendor of his genius, and by the undivided homage 
of his heart. 250 

249 Innes died the year before Washington. 

250 It is proper to say that I have frequently conversed during the past 
thirty years with those who knew James Innes from his youth upward, 
and that my impressions of his character have been drawn from various 
other sources than those already cited. 



328 VIRGINIA CONVENTION OF 1788. 

Unfortunately for the reputation of Innes, no fair specimen of 
his eloquence remains. We are told that, like Henry, 251 he 
rarely spoke above an hour ; and that, as he prepared himself 
with the utmost deliberation, he presented a masterly outline of 
his subject, dwelling mainly upon the great points of his case ; 
that he embellished his arguments with the purest diction and 
with the aptest illustrations, and that he delivered the whole with 
a power of oratory that neither prejudice nor passion could effec- 
tually resist. 

Such was the man whom the friends of the Constitution had 
chosen to make the last impression upon the House in its favor. 
The occasion was not wholly congenial to his taste. Nor was it 
altogether favorable to his fame as a statesman. If he discussed 
the new system in detail he would injure the cause of its friends 
who were eager for the question, and he would promote the ends 
of its enemies who were anxious for delay and would rejoice to 
re-open the debate. And if he passed lightly over his subject he 
would suffer in a comparison with his colleagues who had, after 
months of study, debated at length every department of the new 
government. In the brief notes of his speech which have come 
down to us, this vacillation of purpose is plainly visible. 262 - He 

251 Henry spoke in the present Convention several times for more 
than two hours, and on one occasion more than three, and at the bar 
in important cases he has spoken over three hours, and in the British 
debt cause for three entire days ; but in the House of Delegates he 
rarely spoke over half an hour. One part of his policy was to provoke 
replies, which furnished him with fresh matter. 

252 Innes adhered to the Federal party during the administration of 
Adams, and would have been sent envoy to France in place of Judge 
Marshall, had not a friend informed the President that he would be 
unable from the condition of his family to accept the appointment. He 
accepted, however, the office of Commissioner under Jay's treaty, in 
the latter part of 1797, and was discharging its duties in Philadelphia at 
the time of his death, on the second of August, 1798. He was buried 
in Christ Church burial ground in that city, not far from the grave of 
Franklin. A plain marble slab marks the spot. It once stood on 
columns, but from the filling up of the yard some years ago, is now 
level with the ground. 

Henry Tazewell, one of his early friends and classmates, was buried 
within three feet of his grave. Innes died of a dropsy of the abdomen. 
The following epitaph from the pen of his classmate. Judge St. George 
Tucker, now legible in some of its parts only, was inscribed upon the 



VIRGINIA CONVENTION OF 1788. 329 

began by saying that his silence had not proceeded from neu- 
trality or supineness, but from public duties which could not be 
postponed. The question, he said, was one of the gravest that 
ever agitated the councils of America. " When I see," he said, 
"in this House, divided in opinion, several of those brave offi- 
cers whom I have seen so gallantly fighting and bleeding for 
their country, the question is doubly interesting to me. I 
thought that it would be the last of human events that I should 
be on a different side from them on this awful occasion." 

He said that he was consoled by the reflection that difference 
of opinion had a happy consequence, inasmuch as it evoked dis- 

tombstone of Innes : "To the memory of James Innes, of Virginia, for- 
merly Attorney- General of that State. A sublime genius, improved 
by a cultivated education, united with pre-eminent dignity of character 
and greatness of soul, early attracted the notice and obtained the con- 
fidence of his native country, to whose service he devoted those con- 
spicuous talents, to describe which would require the energy of his 
own nervous eloquence. His domestic and social virtues equally en- 
deared him to his family and friends, as his patriotism and talents to 
his country. He died in Philadelphia August the second, 1798, whilst 
invested with the important trust of one of the commissioners for car- 
rying into effect the treaty between Great Britain and the United 
States." This beautiful tribute to the memory of Innes has one great 
defect the absence of the date of his birth. As the inscription is now 
nearly washed out by the rains of sixty years, it may not be amiss to 
say that the grave is directly in front of the seventh column of the 
brick wall (on Fifth) from Arch, about a foot from the wall. I am in- 
debted to my friend, Townsend Ward, Esq., of Philadelphia, for his aid 
in deciphering the inscription, an accurate copy of which I afterwards 
received from another quarter. My impression is that Innes was a 
grand-nephew of Colonel James Innes, who at the date of his birth was 
a military character in the Colony. Writings of Washington, XII, 
Index. 

[Colonel James Innes, who commanded a regiment from North Caro- 
lina in the French and Indian wars, was a native of Scotland, and a citi- 
zen of New Hanover county, North Carolina. He had served in 1740, 
it is believed, as a captain in the unsuccessful expedition against Car- 
thagena, commanded by Colonel William Gooch, subsequently knighted 
and Lieutenant-Governor of Virginia. He was doubtless a familiar of 
Governor Dinwiddie in Scotland, as the latter constantly addressed 
him as "Dear James." See Dinwiddie Papers, Virginia Historical 
Collection, Vols. Ill, IV. The editor can adduce nothing in confirma- 
tion of the supposition of Mr. Grigsby as to his relationship to Colonel 
James Innes of the text.] 



330 VIRGINIA CONVENTION OF 1788. 

cussion, and was a friend to truth. He came hither under the 
persuasion that the felicity of our country required that we 
should accept this government, that he was, nevertheless, open 
to conviction, but that all that he had heard confirmed him 
in the belief that its adoption was necessary for our national 
honor, our happiness, and our safety. He then discussed the 
policy in respect of amendments, and contended that previous 
amendments were beyond the power of the Convention. Adopt 
this system with previous amendments, and you transcend your 
commission from the people, who have a right to be consulted 
upon them. They have seen the Constitution, and have sent us 
hither to accept or reject it. And have we more latitude upon the 
subject ? He alluded to the distrust and jealousy of our Northern 
brethren which was abroad. Did we distrust them in 1775? If 
we had distrusted them, we would not have seen that unanimous 
resistance which had enabled us to triumph through our enemies. 
It was not a Virginian, or a Carolinian, or a Pennsylvanian, but the 
glorious name of an American, that was then beloved and con- 
fided in. Did we then believe that, in the event of success, we 
should be armed against each other? Had I believed then what 
we are told now, he said, that our Northern brethren were desti- 
tute of that noble spirit of philanthropy which cherishes pater- 
nal affections, unites friends, enables men to achieve the most 
gallant exploits, and renders them formidable to foreign powers, 
I would have submitted to British tyranny rather than to North- 
ern tyranny. When he had reviewed at length the arguments 
founded on the dissimilar interests of the States, and on the con- 
dition of our foreign relations, he said that " we are told that we 
need not be afraid of Great Britain. Will that great, that war- 
like, that vindictive nation lose the desire of avenging her losses 
and her disgraces? Will she passively overlook flagrant viola- 
tions of the treaty? Will she lose the desire of retrieving those 
laurels that are buried in America? Should I transfuse into the 
breast of a Briton that love of country which so strongly pre- 
dominates in my own, he would say, while I have a guinea, I 
shall give it to recover lost America" He then treated with 
stern disdain the insinuation that we should check our maritime 
strength on account of fears apprehended from foreign powers. 
To promote their glory, he said, we must become wretched and 
contemptible. It may be said that the ancient nations which 



VIRGINIA CONVENTION OF 1788. 331 

deserved and acquired glory lost their liberty. But have not 
mean and cowardly nations, Indians and Cannibals, lost their 
liberty likewise ? And who would not rather be a Roman than 
one of those creatures that hardly deserves to be incorporated 
among the human species? I deem this subject, he said, as 
important as the Revolution which severed us from the British 
empire. It is now to be determined whether America has gained 
by that change which has been thought so glorious ; whether 
those hecatombs of American heroes, whose blood was so freely 
shed at the shrine of liberty, fell in vain, or wheth er we shall estab- 
lish such a government as shall render America respectable and 
happy ! It is my wish, he said, to see her not only possessed of 
civil and political liberty at home, but to be formidable, to be ter- 
rible, to be dignified in war, and not dependent upon the corrupt 
and ambitious powers of Europe for tranquility, security, or 
safety. I ask, said Innes, if the most petty of those princes, 
even the Dey of Algiers, were to make war upon us, we should 
not be reduced to the greatest distress ? Is it not in the power 
of any maritime nation to seize our ships and destroy our com- 
merce with impunity ? We are told, he said, that the New Eng- 
landers are to take our trade from us, and make us hewers of 
wood and drawers of water, and in the next moment to emanci- 
pate our slaves. They tell you that the admission of the import- 
ation of slaves for twenty years shows that their policy is to keep 
us weak ; and yet the next moment they tell you that they intend 
to set them free ! If it be their object to corrupt and enervate 
us, will they emancipate our slaves ? Thus they complain and 
argue against the system in contradictory principles. The Con- 
stitution is to turn the world topsy-turvy to make it suit their 
purposes. He looked to the alleged dangers to religious free- 
dom from the Constitution, and argued that they were imaginary 
and absurd. With respect to previous amendments, he contended 
that it was discourteous to request the other States, which, after 
months of deliberation, had ratified the new system, to undo all 
that they have done at our bidding. Those States will say : 
" The Constitution has been laid before you, and if you do not 
like it, consider the consequences. We are as free, sister Vir- 
ginia, and as independent as you are. We do not like to be 
dictated to by you." But, say gentlemen, we can afterwards come 
into the union. I tell you, he said, that those States are not of 



332 VIRGINIA CONVENTION OF 1788. 

such pliant, yielding stuff as to revoke a solemn decision to 
gratify your capricious wishes. He concluded with an animated 
appeal to the members to accept the Constitution. Unless we 
look for a perfect Constitution, he said, we ought to take this. 
From India to the Pole you will seek a perfect Constitution in 
vain. It may have defects, but he doubted whether any better 
system can be obtained at this time. Let us try it. Experience 
is the best test. The new system will bear equally upon all, and 
all will be equally anxious to amend it. I regard, he said, the 
members of Congress as my fellow-citizens, and rely upon their 
integrity. Their responsibility is as great as can well be expected. 
We elect them, and we can remove them at our pleasure. In 
fine, the question is, whether we shall accept or reject this Con- 
stitution ? With respect to previous amendments, they are equal 
to rejection. They are abhorrent to my mind. I consider them 
the greatest of evils. I think myself bound to vote against 
every measure which I believe to me a total rejection, than which 
nothing within my conception can be more imprudent, destruc- 
tive, and calamitous. 

The sensation produced by the speech of Innes was profound. 
The loose report of it which has come down to us presents some 
of the main points on which he dwelt, and enables us to form a 
vague opinion of the mode in which he blended severe argument 
with the loftiest declamation ; but it affords only a faint likeness 
of the original, and conveys no idea of the prodigious impression 
which the speech made at the time. And what that impression 
was we know from conclusive authority. Old men have been 
heard to say that, exalted by the dignity of his theme and con- 
scious that the issue was to be instantly decided, he spoke like 
one inspired. The tones of tender affection when he spoke of 
our Northern brethren, who had fought side by side with us in 
battle and had achieved with us the common liberty ; of fierce 
disdain when he described his opponents as lowering the flag of 
his country to ingratiate the petty princes of Europe ; of appre- 
hension when he portrayed the terrible power of England and 
her thirst for vengeance; of unutterable scorn when he repelled 
the charge that Northern men would make hewers of wood and 
drawers of water of the people of the South ; and of passionate 
patriotism when he conjured the House not to throw away the 
fruits of the Revolution by rejecting the proposed system, but in 



VIRGINIA CONVENTION OF 1788. 333 

a spirit of fraternal love to ratify it without amendment; his atti- 
tudes and his gestures, as he moved his gigantic stature to and 
fro, and the unbroken and overflowing torrent of his speech, were 
long remembered. His friends were liberal in their congratula- 
tions, and declared that he had surpassed himself that he had 
surpassed any speaker whom they had ever heard. But the 
expectations of friends are sometimes easily satisfied. There is, 
however, one witness whose testimony is beyond cavil. Henry 
could hardly find words to express the admiration with which 
the eloquence of Innes had inspired him. It was grand. It was 
magnificent. It was fit to shake the human mind. 253 

Statesmen of real genius, of pure morals, and of sincere patriot- 
ism, though pitted by heated and hating partisans against each 
other, rarely undervalue one another. In the breasts of such 
men detraction, envy and jealousy, which corrode the temper of 
meaner spirits, find no durable abiding-place. Innes appreciated 
the magnanimity of Henry ; and when, in the early part of the 
following year, the character of his great rival was traduced in a 
series of articles by an anonymous writer in a Richmond paper, 
and when, from the political complexion of those articles and 
from the research, pungency and point with which they were 
written, public opinion had fixed their authorship on Innes, he 
wrote to Henry to contradict the rumor, and to assure him of his > 
highest admiration and esteem. 254 

Tyler followed Innes. He was many years younger than his 
colleague, Harrison, who had spoken in the early part of the day. 
Indeed, when Harrison, in the debate on Henry's resolutions 
against the Stamp Act, was a leading member of the House of 
Burgesses, Tyler, then a boy of sixteen, was looking on from the 



253 See the speech of Henry, to be noticed in this day's debate. The 
only instance that occurs to me of an opponent extolling, at a time of 
intense excitement, in such exalted terms, the speech of a rival whom 
he followed in debate and whom he sought to overthrow, was in the 
debate in the House of Commons on the peace of 1803, when Fox, 
rising after Pitt, said of his speech that " the orators of antiquity would 
have admired probably would have envied it." 

254 1 allude to the letters of " Decius," the first of which appeared in 
the Richmond Independent Chronicle of the 7th of January, 1789. Of j 
these letters I may say something in the sequel. The letter of Innes is 
in the Henry papers at " Red Hill." 



334 VIRGINIA CONVENTION OF 1788. 

gallery. But, from his long and exclusive devotion to the inte- 
rests of the Commonwealth, he had gained an ascendancy in the 
public councils which was possessed by few of his contempo- 
raries, and which caused him to be singled out as a fit person to 
bring forward the resolution inviting the meeting at Annapolis. 
He was also a ready, forcible, and, not unfrequently, an eloquent 
speaker, and was generally followed as a leader by the delegates 
from the tide water counties: It was doubtless with a view of 
rousing the fears of some of the smaller counties on the seaboard, 
which had shown a disposition to sustain the new system, that 
he now spoke, not only more at length than he had yet done, 
but with a force and a freedom unlooked for by his opponents. 
He said that he was inclined to have voted silently on the 
question about to be put ; but, as he wished to record his oppo- 
sition for the eyes of posterity, he felt bound to declare the prin- 
ciples on which he opposed the Constitution. His objections in 
the first instance were founded on general principles ; but when 
upon a closer examination he saw the terms of the Constitution 
expressed in so indefinite a manner as to call forth contradictory 
constructions from those who approved it, he could find no peace 
in his mind. If able gentlemen who advocate this system can- 
not agree in construing it, could he be blamed for denouncing 
its ambiguity? The gentleman (Innes) has brought us to a de- 
grading condition. We have no right to propose amendments. 
He should have expected such language after the Constitution 
was adopted ; but he heard it with astonishment now. The 
gentleman objected to previous amendments because the people 
did not know them. Did they know their subsequent amend- 
ments? (Here Innes rose and made a distinction between the 
two classes of amendments. The people would see those that 
were subsequent, and, if they disliked them, might protest against 
them.) Tyler continued: Those subsequent amendments, he 
said, I have seen, and, although they hold out something that 
we wish, they are radically deficient. What do they say about 
direct taxation ? about the judiciary ? The new system contains 
many dangerous articles. Shall we be told by the gentleman 
that we shall be attacked by the Algerians, and that disunion 
shall take place, unless we adopt it? Such language I did not 
expect here. Little did I think that matters would have come to 
this when we separated from the mother country. There, every 




VIRGINIA CONVENTION OF 1788. 335 

man is amenable to punishment. There is far less responsibility 
in that system. British tyranny would have been more tolerable. 
Under the Articles of Confederation every man was at least se- 
cure in his person and in his property. Liberty was then in its 
zenith. Human nature will always be the same. Men never 
were nor ever will be satisfied with their happiness. When once 
we begin these radical changes, where shall we find a place of 
rest ? He contended that, if the new system were put into ope- 
ration unamended, the people would not bear it; that two om- 
nipotent agents exercising the right of taxation without restraint, 
could not co- exist; that a revolt or the destruction of the State 
governments would follow ; that as long as climate produces its 
effects upon men, men would differ from each other in their 
tastes, their interests, and affections; and that a consolidated 
system could only be sustained under a military despotism. He 
discussed in detail the policy of amendments, and concluded that 
the public mind would not be satisfied until the great questions 
at issue should be settled by another Convention. He reviewed 
the chances of interference by foreign powers, and argued that 
as it was their interest to be at peace with us, they would obey 
the dictates of interest. He deprecated the idea of a great and 
powerful government. Self defence in the present age and con- 
dition of the country was all that we ought to look for. He said 
he sought invariably to oppose oppression. His course through 
the Revolution would justify him. He held now a paltry office, 
away with it. 255 It had no influence upon his conduct. He was ; 
no lover of disunion. He wished Congress to possess the right 
of regulating trade, as he thought that a partial and ever-varying ' 
system of regulation by the individual States would not suffice, 
and he had proposed to vest that right in the general govern- 
ment ; but since this new government had grown out of his 

255 Tyler was appointed one of the Commissioners of Admiralty in 
July, 1776, by the Convention, and performed the duties of his office 
under a State appointment until 1781, when the Articles of Confedera- 
tion took effect, and when his appointment as Judge of Admiralty was 
renewed by the Federal government. By the ninth of those articles 
the general government received the power k 'of establishing rules for 
deciding in all cases what captures on land or water shall be legal, and 
in what manner prizes taken by land or by the naval forces of the 
United States shall be divided or appropriated." 



336 VIRGINIA CONVENTION OF 1788. 

scheme to effect a desirable object, he lamented that he had put 
his hand to it. It never entered his head that we should quit 
liberty and throw ourselves into the hands of a great and ener- 
getic government. But, if we are to surrender liberty, we surely 
ought to know the terms of the surrender. The new system, 
however, as construed by its own friends, does not accord us that 
poor privilege. He said he was not prone to jealousy ; that he 
would trust his life to the members of this House, but he could 
not trust the Constitution as it stood. Its unlimited power of 
taxation, the supremacy of the laws of the union, and of trea- 
ties, were, in his opinion, exceedingly dangerous. There was no 
responsibility. Who would punish the President? If we turn 
out our own ten representatives, what can we do with the re- 
maining fifty-five? The wisdom of Great Britain gave each 
colony its separate legislature, a separate judiciary, and the ex- 
clusive right to tax the people. When that country infringed our 
rights, \ve declared war. This system violates all those precious 
rights. In 1781 the Assembly were compelled by the difficulties 
of the times to provide by law that forty members should con- 
stitute a quorum. That measure has been harshly blamed by 
gentlemen ; but if we could not trust forty then, are we to be 
blamed for not trusting to ten now ? After denouncing the im- 
policy and the folly of altering or amending a contract when it 
was signed and sealed, he concluded by saying that his heart 
was full that he could never feel peace again till he saw the de- 
fects of the new system removed. Our only consolation, he said, 
is the virtue of the present age. It is possible that the friends 
of this system, when they see their country divided, will reconcile 
the people by the introduction of such amendments as shall be 
deemed necessary. Were it not for this hope he would despair. 
He should say no more, but that he wished his name to be seen 
in the yeas and nays, and that it may be known hereafter that his 
opposition to this new system arose from a full persuasion and 
conviction of its being dangerous to the liberties of his country. 
The fierce and uncompromising assault of Tyler called up 
Adam Stephen. Stephen had risen some days before for the 
purpose of rebuking Henry for the course which he had pursued 
in debate, but had not gone fully into a discussion of the new 
scheme. Nor did he now proceed to examine that system in 
detail, but in a highly figurative strain of eloquence advocated 



VIRCxINIA CONVENTION OF 1788. 337 

its ratification without previous amendments. The country, he 
said, was in an unhappy condition, and that the members had 
been sent here to accept or reject the new system. That was 
their sole duty. Still he would concede future amendments, 
and he felt assured that such amendments would at an early day 
be engrafted on the Constitution. He praised the Constitution 
as embodying in just proportions the virtues of the three dif- 
ferent kinds of government. Let gentlemen remember that we 
now have no Federal government at all. It is gone. It has been 
asked where is the genius of America ? He would answer that it 
was that genius which convoked the Federal Convention, and 
which sent us here to decide upon the merits of the system framed 
by that body. What has now become of that genius ? that benefi- 
cent genius which convoked the Federal Convention? "Yon- 
der she is," he said, "in mournful attire, her hair dishevelled, 
distressed with grief and sorrow, supplicating our assistance 
against gorgons, fiends, and hydras, which are ready to devour 
her and carry desolation throughout her country. She bewails 
the decay of trade and the neglect of agriculture her farmers 
discouraged, her ship carpenters, blacksmiths, and all other 
tradesmen unemployed. She casts her eyes on these, and de- 
plores her inability to relieve them. She sees and laments that 
the profits of her commerce go to foreign States. She further 
bewails that all she can raise by taxation is inadequate to her 
necessities. She sees religion die by her side, public faith pros- 
tituted, and private confidence lost between man and man. Are 
the hearts of her citizens so steeled to compassion that they will 
not go to her relief?" He closed his remarks by holding up 
the magnanimity of Massachusetts in ratifying the Constitution 
in a spirit of union, and by declaring that the question was 
whether Virginia should be one of the United States or not. 

Stephen was succeeded by a member who had not yet partici- 
pated in debate, but who, as a representative of the Valley, was 
listened to with profound respect. Zachariah Johnston came 
from Augusta, a county which had been distinguished by the 
valor of its sons in the Indian wars, especially at the battle of 
Point Pleasant, 256 and in the Revolution; which had hailed the 

256 One of the Augusta companies that marched to Point Pleasant 
reminded one of Frederick the Second's tall regiment. We are told 



338 VIRGINIA* CONVENTION OF 1788. 

conduct of the Virginia members of the Congress of 1774 in a 
patriotic letter still extant, and which had urged the Convention 
of May, 1776, before that body had dissolved the allegiance of 
the Colony to the crown, to establish an independent govern- 
ment, and to form an alliance of the States. 257 The position of 
the Valley helped to give a cast to the politics of its inhabitants. 
Its waters ran to the east and sought the Atlantic through the 
Chesapeake. Its rich lands were thinly settled. The emigra- 
tion, which had since the war been winding its way to Kentucky, 
passed through its breadth, and not only left none behind, but 
was taking off some of its citizens. The people of the Valley 



by Dr. Foote "that the company excited admiration for the height of 
the men and their uniformity of stature. In the bar-room of Sampson 
Mathews a mark was made upon the walls, which remained until the 
tavern was consumed by fire about seventy years after the measure- 
ment of the company was made. The greater part of the men were 
six feet two inches in their stockings, and only two were but six feet." 
Footers Sketches of Virginia, second series, 162. 

[Sampson Mathews was a brother of Colonel George Mathews of the 
Revolution, subsequently Governor of Georgia, etc., and the brothers, 
prior to the Revolution, were merchants and partners under the firm 
name of Sampson and George Mathews. ED.] 

257 The address of the freeholders of Augusta, dated February 22, 
1775, to Thomas Lewis and Samuel McDowell, and the letter to the 
delegates in Congress are now well known, and may be found in the 
American Archives compiled by Mr. Force, but it is a mistake to sup- 
pose that my allusion in the discourse on the Convention of 1776, in 
the sketch of Thomas Lewis, to a memorial of Augusta had any refer- 
ence to these papers. They are honorable to the people of Augusta, 
but they did not refer to independence. The memorial to which I 
allude in the text was presented by Thomas Lewis in the Convention 
of May, 1776, and distinctly pointed to the establishment of an inde- 
pendent State government and a Federal union. (See Journal, page 
n.) The only paper which can stand near this, and a noble paper it 
is, is the instructions forwarded by the freeholders of Buckingham to 
Charles Patteson and John Cabell, then delegates in the same Conven- 
tion. These instructions were drawn before the resolution of the Con- 
vention instructing the delegates in Congress to declare independence 
had reached Buckingham, and require the delegates from that county 
to form an independent government. These instructions were printed 
in the Virginia Gazette of June 14, 1776, though written certainly be- 
fore the middle of the previous month. The paper should be printed 
and framed and hung from every wall in Buckingham. 



VIRGINIA CONVENTION OF 1788. 339 

were, therefore, more disposed to look to the East than to the 
West, and no appeal founded on the probable loss of the navi- 
gation of the Mississippi had any effect upon them. In fact, the 
stoppage of the navigation of that stream was more likely to 
prove a benefit than an injury to them. It would check emigra- 
tion. It would not only keep their own people at home, but it 
would probably collect the emigrants from the East within the 
borders of the Valley. On the other hand, the dangers which 
the people of the Valley had most to apprehend, were from the 
Indians, who might not molest their own firesides, but who, if 
they made an inroad on the frontiers, must be repelled mainly by 
their arms. Hence a strong and energetic government, which 
might bring at any moment the military resources of the Union 
to bear upon the Indians, had in itself nothing unpleasing in the 
sight of the Valley people. And when we recall the subsequent 
Indian campaigns, during which two well-equipped armies of 
the Federal government, officered by brave and skillful men, 
were surprised and slain, it should appear that their fears were 
not wholly groundless. 

Only one member from the Valley had spoken ; but Stephen 
was an old soldier, and was apt to view political questions more 
in the spirit of a soldier than of a statesman. Thomas Lewis 
was a man of large experience in civil affairs ; but it was now 
believed that he would support the Constitution. 258 It was plain 
that the opponents of that paper regarded the Valley delegation 
with alarm. It was mainly composed of men who had seen hard 
military service, and were devoted to Washington ; and a large 
proportion of such men were in favor of a scheme of govern- 
ment which their chief had assisted in framing ; which bore his 
august name on its face ; which was recommended to the Con- 
gress of the Confederation in an eloquent letter from his pen, 
and the adoption of which it was well known that he had used 
all the just influence of his character to secure. 259 Nor were the 



258 In the discourse on the Virginia Convention of 1776, trusting to 
the researches of others instead of consulting the records for myself, I 
inadvertently represented Lewis as voting against the ratification of the 
Constitution. He voted in favor of it. 

259 Washington enclosed copies of the Constitution to many promi- 
nent men throughout the Union. See the form of his letter to them, 



340 VIRGINIA CONVENTION OF 1788. 

tender ties which bound the soldier to Washington severed by 
the peace. The society of the Cincinnati had been called into 
existence ; its diplomas, admirably printed, for the times, on 
parchment, were seen neatly framed, and were to be seen in the 
rude cabins of the frontier as well as in the costlier dwellings of 
the East ; and of that influential body he was the head. Stuart, 
of Greenbriar, who had behaved with gallantry at Point Plea- 
sant, and who has handed down in his Memoir a description of 
the battle, lived on the other side of the mountain ; but by mar- 
riage, by association, and by similarity of interest, was induced 
to sustain the policy of the Valley people. Stuart, of Augusta, 
had left William and Mary College to engage in the war, and, 
righting gallantly at Guilford, had seen his commander, who was 
his own father, 260 fall from his horse, pierced with many wounds, 
and dragged off the field by the enemy, to be incarcerated in a 
prison-hulk on the seaboard. Darke, as well as his colleague, 
Stephen, fortemqtie Gyan fortemque Cloanthum, the opponents 
of the Constitution knew regarded that instrument with affec- 
tion. Moore, of Rockbridge, who had seen arduous service in 
the Northern army, and was present when the flag of St. George 
was lowered on the field of Saratoga, had received inslmclions 
to oppose the new system ; but it was believed that he would 
disobey them.' 261 Gabriel Jones was not a soldier, but an able 
lawyer ; but his shrewdness in business ; his vast wealth, made 
up of lands and cash ; his hatred of paper money, and the ec- 
centric cast of his character, would insensibly lead him to ap- 
prove an energetic and hard-money government. 

In this state of apprehension respecting the opinions of the 



and the manly answers of Harrison and Henry^ in the Writings of 
Washington. Index to the volumes in the XII Volume, Articles, Harri- 
son and Henry. 

260 [Major Alexander Stuart, whose sword, presented by his grandson, 
Hon. Alex. H. H. Stuart, is among the relics of the Virginia Historical 
Society. ED.] 

261 He did disobey them ; but, though warmly opposed by the cele- 
brated William Graham [founder of Liberty Academy, now Washing- 
ton and Lee University], he was returned from Rockbridge at the next 
election of the House of Delegates by a large majority. General 
Moore was not present at the battle of Point Pleasant, as is repre- 
sented by Dr. Foote, and in Howe's Virginia. 



VIRGINIA CONVENTION OF 1788. 341 

members from the Valley, the words of Johnston were closely 
watched. Of the sentiments held by others, however, he said 
nothing, but in a few sentences removed all doubt about his 
own. After presenting some remarks appropriately introduced 
respecting the nature and value of government, and offering a 
deserved compliment to Pendleton, he discussed, concisely and 
clearly the legislative department, and pointed out it's fine adap- 
tation, in his opinion, to attain the end in view. He approved 
the provisions touching the militia, which, as the father of a large 
family, he regarded with caution ; saw no danger to religious 
freedom, or fear from direct taxation, and defended the irregu- 
larities of the new system by an illustration drawn from the num- 
ber of fighting men in the county of Augusta and in the county 
of Warwick, and argued that the representation in the House of 
Representatives was more equal and more just than in our own 
House of Delegates. He saw full responsibility in the houses 
of Congress. Men would not be wicked for nothing, and when 
they became wicked we would turn them out. When the mem- 
bers of Congress knew that their own children would be taxed, 
there was sufficient responsibility. He animadverted sternly on 
the amendments brought forward by the opponents of the new 
scheme. They had left out the most precious article in the bill 
of rights. They feared, he said, that emancipation would be 
brought about. That had begun since the Revolution ; and, do 
what you will, it will come round. If slavery, he said, .were 
totally abolished, it would do much good. He now looked forward 
to that happy day when discord and dissension shall cease. 
Division was a dreadful thing. The Constitution, he admitted, 
might have defects ; but where do the annals of the world show 
us a perfect constitution ? He closed his remarks by a novel and 
well-drawn parallel between the condition of the British people, 
who, when they had overthrown monarchy, were unable to gov- 
ern themselves, and had in despair called Charles the Second to 
the throne, and the condition of our own country, warning the 
members of the fate which might overtake them, if, by rejecting 
the Constitution, they became involved in disunion and anarchy. 262 
Henry rose to utter his last words. We are told, he said, of 
the difficulty of obtaining previous amendments. I contend that 



262 This speech is quite able, and is well reported by Robertson. 



342 VIRGINIA CONVENTION OF 1788. 

they may be as easily obtained as subsequent amendments. We 
are told that nine States have adopted this Constitution. If so, 
when the government gets in motion, have they not the right to 
consider our amendments as well as if we had adopted first? If 
we remonstrate, may they not consider our amendments ? I fear 
subsequent amendments, he said, will make our condition worse. 
They will make us ridiculous. I speak in plain direct language. 
It is extorted from me. I say, if the right of obtaining amend- 
ments is not secured, then our rights are not secured. The pro- 
position of subsequent amendments is only to lull our apprehen- 
sions. He dwelt upon the surrender of the right of direct 
taxation. Taxes and excises are to be laid on us. The people 
are to be oppressed. The State Legislature is to be prostrated. 
The power of making treaties is also passed over. Our country 
may be dismembered. He might enumerate many other great 
rights that are omitted in the amendments. I am astonished, he 
said, at what my worthy friend (Innes) said that we have no 
right of proposing previous amendments. That honorable gen- 
tleman is endowed with great eloquence eloquence splendid, 
magnificent, and sufficient to shake the human mind. He has 
brought the whole force of America against this State. He has 
shown our weakness in comparison with foreign powers. His 
reasoning has no effect upon me. He cannot shake my political 
faith. He admits our power over subsequent amendments, 
though not over previous ones. If we have the right to depart 
from the letter of our commission in one instance, we have in the 
other. We shall absolutely escape danger in the one case, but 
not in the other. If members are serious in wishing amend- 
ments, why do they not join us in a manly, firm, and resolute 
manner to procure them? "I beg pardon of this House," he 
said, "for having taken up more time than came to my share, 
and I thank them for the patience and polite attention with which 
I have been heard. If I shall be in the minority, I shall have 
those painful sensations which arise from a conviction of being 
overpowered in a good cause. Yet I will be a peaceable citizen. 
My head, my hand, and my heart shall be ready to retrieve the 
loss of liberty, and remove the defects of that system, in a con- 
stitutional way. I wish not to go to violence, but will await with 
hopes that the spirit which predominated in the Revolution is 
not yet gone, nor the cause of those who are attached to the 



VIRGINIA CONVENTION OF 1788. 343 

Revolution yet lost. I shall therefore patiently wait in expecta- 
tion of seeing that government changed so as to be compatible 
with the safety, liberty, and happiness of the people." 

Randolph ended that long and brilliant debate in a touching 
valedictory. One parting word, he said, he humbly supplicated. 
The suffrage which he should give in favor of the Constitution 
will be ascribed by malice to motives unknown to his breast. 
"But, although for every other act of my life," he said, " I shall 
seek refuge in the mercy of God, for this I request his justice 
only. Lest, however, some future annalist, in the spirit of party 
vengeance, deign to mention my name, let him recite these 
truths : that I went to the Federal Convention with the strongest 
affection for the union ; that I acted there in full conformity with 
this affection ; that I refused to subscribe because I had, as I 
still have, objections to the Constitution, and wished a free 
enquiry into its merits ; and that the accession of eight States 
reduced our deliberations to the single question of union or no 
union." 

The President now resumed the chair, and Mathews reported 
that the committee had, according to order, again had the Con- 
stitution under consideration, and had gone through the same, 
and come to several resolutions thereupon, which he read in his 
place, and afterwards delivered in at the clerk's table, where 
they were again read, and are as followeth : 

" WHEREAS, The powers granted under the proposed Consti- 
tution are the gift of the people, and every power not granted 
thereby remains with them and at their will ; no right therefore, of 
any denomination can be cancelled, abridged, restrained or modi- 
fied by the Congress, by the Senate or House of Representatives 
acting in any capacity, by the President, or any department or 
officer of the United States, except in those instances in which 
power is given by the Constitution for those purposes ; and 
among other essential rights, liberty of conscience and of the 
press cannot be cancelled, abridged, restrained, or modified by 
any authority of the United States ; 

" AND WHEREAS, Any imperfections which may exist in the 
said Constitution ought rather to be examined in the mode pre- 
scribed therein for obtaining amendments, than by a delay, with 
a hope of obtaining previous amendments, to bring the union 
into danger ; 



344 VIRGINIA CONVENTION OF 1788. 

" Resolved, That it is the opinion of this committee that the 
said Constitution be ratified. 

" But in order to relieve the apprehensions of those who may 
be solicitous for amendments, 

" Resolved, That it is the opinion of this committee, that what- 
soever amendments may be deemed necessary, be recommended 
to the consideration of Congress, which shall first assemble under 
the said Constitution, to be acted upon according to the mode 
prescribed in the fifth article thereof." 

The first resolution proposing a ratification of the Constitution 
having been read a second time, a motion was made to amend 
it by substituting in lieu of the resolution and its preamble the 
following : 

"Resolved, That previous to the ratification of the new Con- 
stitution of government recommended by the late Federal Con- 
vention, a declaration of rights asserting and securing from en- 
croachment the great principles of civil and religious liberty, and 
the unalienable rights of the people, together with amendments to 
the most exceptionable parts of the said Constitution of govern- 
ment, ought to be referred by this Convention to the other 
States in the American confederacy for their consideration." 

The vote on this amendment, which involved the question of 
previous or subsequent amendments, was taken without debate, 
and resulted in its rejection by a majority of eight votes. 263 



263 The ayes and noes, which were ordered for the first time in a Vir- 
ginia convention, on motion of Henry seconded by Bland, were 80 to 
88, as follows : 

AYES : Edmund Custis, John Pride, Edmund Booker, William Cabell, 
Samuel Jordan Cabell, John Trigg, Charles Clay, Henry Lee, of Bour- 
bon, the Hon. John Jones, Binns Jones, Charles Patteson, David Bell, 
Robert Alexander, Edmund Winston, Thomas Read, Benjamin Harri- 
son, the Hon. John Tyler, David Patteson, Stephen Pankey, junior, 
Joseph Michaux, Thomas H. Drew, French Strother, Joel Early, Joseph 
Jones, William Watkins, Meriwether Smith, James Upshaw, John Fow- 
ler, Samuel Richardson, Joseph Haden, John Early, Thomas Arthur, 
John Guerrant, William Sampson, Isaac Coles, George Carrington, 
Parke Goodall, John Carter Littlepage, Thomas Cooper, John Mann, 
Thomas Roane, Holt Richeson, Benjamin Temple, Stevens Thompson 
Mason, William White, Jonathan Patteson, Christopher Robinson, John 
Logan, Henry Pawling, John Miller, Green Clay, Samuel Hopkins, 
Richard Kennon, Thomas Allen, Alexander Robertson, John Evans, 
Walter Crockett, Abraham Trigg, Matthew Walton, John Steele, Ro- 



VIK.Lri.N-- -vVENTION OF 1 7' -6. 345 

The main question was 'then put, that the Convention agree, 
with the committee on the said first resolution the resolution of 
ratification and was carried in a house of one hundred and 
sixty-eight members by ten votes. 264 

bert Williams, John Wilson, of Pottsylvania, Thomas Turpin, Patrick 
Henry, Robert Lawson, Edmund Ruffin, Theodrick Bland, William 
Grayson, Cuthbert Bullitt, Thomas Carter, Henry Dickenson, James 
Monroe, John Dawson, George Mason, Andrew Buchanan, John How- 
ell Briggs, Thomas Edmunds, the Hon. Richard Gary, Samuel Ed- 
monson, and James Montgomery 80. 

NOES: The Hon. Edmund Pendleton, president, George Parker, ' 
George Nicholas, Wilson Nicholas, Zachariah Johnston, Archibald 
Stuart, William Darke, Adam Stephen, Martin McFerran, William Flem- 
ing, James Taylor, of Caroline, the Hon. Paul Carrington, Miles King, 
Worlick Westwood, David Stuart, Charles Simms, Humphrey Mar- 
shall, Martin Pickett, Humphrey Brooke, John S. Woodcock, Alexan- 
der White, Warner Lewis, Thomas Smith, George Clendenin, John 
Stuart, William Mason, Daniel Fisher, Andrew Woodrow, Ralph Hum- 
phreys, George Jackson, John Prunty, Isaac Vanmeter, Abel Seymour, 
His Excellency Governor Randolph, John Marshall, Nathaniel Burwell, 
Robert Andrews, James Johnson, Robert Breckenridge, Rice Bullock, 
William Fleet, Burdet Ashton, William Thornton, James Gordon, of 
Lancaster, Henry Towles, Levin Powell, Wm. O. Callis, Ralph Worm- 
ley, junior, Francis Corbin, William McClerry, Wills Riddick, Solomon 
Shepherd, William Clayton, Burwell Bassett, James Webb, James Tay- 
lor, of Norfolk, John Stringer, Littleton Eyre, Walter Jones, Thomas 
Gaskins, Archibald Wood, Ebenezer Zane, James Madison, James Gor- 
don, of Orange, William Ronald, Anthony Walke, Thomas Walke, 
Benj. Wilson, John Wilson, of Randolph, Walker Tomlin, William 
Peachy, William McKee, Andrew Moore, Thomas Lewis, Gabriel Jones, 
Jacob Rinker, John Williams, Benj. Blunt, Samuel Kello, John Hart- 
well Cocke, John Allen, Cole Digges, Henry Lee, of Westmoreland, 
Bushrod Washington, the Hon. John Blair, the Hon. George Wythe, 
James Innes, and Thomas Mathews 88. 

264 The ayes and noes, ordered on motion of George Mason, seconded 
by Henry, were ayes 89, noes 79, as follows : 

AYES: The Hon. Edmund Pendleton, president, George Parker, 
George Nicholas, Wilson Nicholas, Zach. Johnston, A. Stuart, W. Darke, 
A. Stephen, M. McFerran, W. Fleming, Jas. Taylor, of Caroline, the 
Hon. P. Carrington, D. Patteson, M. King, W. Westwood, D. Stuart, C. 
Simms, H. Marshall, M. Pickett, H. Brooke, J. S. Woodcock, A. White, 
W Lewis, T Smith, G. Clendenin, J. Stuart, W. Mason, D. Fisher, A. 
Woodrow, R. Humphreys, G. Jackson, John Prunty, I. Vanmeter, A. 
Seymour, His Excellency Governor Randolph, J. Marshall, N. Burwell, 
R. Andrews, J. Johnson, R. Breckenridge, Rice Bullock, W Fleet, B. 



346 VIB\ INI A CONVENTION OF 1788. 

When the vote was announced from the chair, and when it 
appeared that the long and arduous contest had been at last 
decided in favor of the new system, there was no show of 
triumph or exultation on the part of its friends. A great victory 
had been achieved by them ; but it was impossible to say that 
the Constitution was yet safe. It was carried by a meagre 
majority ; and it was carried, it was believed by those who had 
the control of the Assembly, in plain opposition to the wishes of 
the people; the Legislature might yet interpose obstacles to the 
organization of the government, and might virtually annul, for 
some time at least, the ratification which had been so dearly won. 
The vote which we shall soon record, attests in the strongest 
manner the desire for conciliation which governed the conduct 
of the friends of the Constitution. 

The second resolution having been amended by striking out 
the preamble, was then agreed to by a silent vote. 265 



Ashton, W. Thornton,]. Gordon, of Lancaster, H. Towles, L. Powell, 
W. O. Callis, R. Wormeley, junior, F. Corbin, Wil. McClerry, W. Rid- 
dick, S. Shepherd, W. Clayton, B. Bassett, J. Webb, J. Taylor, of Norfolk, 
J. Stringer, L. Eyre, W. Jones, T. Gaskins, A. Woods, E. Zane, James 
Madison, J. Gordon, of Orange, W. Ronald. A. Walke, T. Walke, B. 
Wilson, J. Wilson, of Randolph, W. Tomlin, W. Peachy, W. McKee, A. 
Moore, T. Lewis, G. Jones, J Rinker, J. Williams, B. Blunt, S. Kello, J. H. 
Cocke.J. Allen, C. Digges, H. Lee, of Westmoreland, B Washington, 
the Hon. J. Blair, the Hon. G. Wythe, J. Innes, and T. Mathews 89. 

NOES: E Custis, J. Pride, E. Booker, W. Cabell, S. J. Cabell.J. Trigg, 
C. Clay, H. Lee, of Bourbon, the Hon. J. Jones, B. Jones, C. Patteson, D. 
Bell, R. Alexander, E. Winston, T. Read,B. Harrison, the Hon. J.Tyler, 
S. Pankey,Jr.,J. Michaux, T. H. Drew, F. Strother, Joel Early, J. Jones, 
W. Watkins, M. Smith, J. Upshaw, J. Fowler, S. Richardson, J. Haden, 
John Early, T. Arthur, J. Guerrant, W. Sampson, I. Coles, G. Carring- 
ton, P. Goodall, J. C. Littlepage, T. Cooper, J. Mann, T. Roane, H. Riche- 
son, B. Temple, S. T. Mason, W. White, Jona Patteson, C. Robertson, 
J. Logan, H. Pawling, J. Miller, G. Clay, S. Hopkins, R. Kennon, T. 
Allen, A. Robertson, J. Evans, W. Crockett, A. Trigg, M. Walton, J. 
Steele, R. Williams, John Wilson, of Pottsylvania, F. Turpin, P. Henry, 
R. Lawson, E. Ruffin, T. Bland, W. Grayson, C. Bullitt, T. Carter, H. 
Dickenson, James Monroe, J. Dawson, Geo. Mason, A. Buchanan, J. H. 
Briggs,T. Edmunds, the Hon. Richard Gary, S. Edmonson, and James 
Montgomery 79. 

263 The vote on striking out the first resolution, and inserting the 
amendment in its stead, was the test vote, and was lost by eight votes. 
A change, therefore, of four of the votes of the majority would have 



VIRGINIA CONVENTION OF 1788. 347 

A committee was then appointed to prepare and report a form 
of ratification, and Randolph, George Nicholas, Madison, Mar- 
shall, and Corbin were placed upon it. 266 A committee was also 
appointed " to prepare and report such amendments as shall by 
them be deemed necessary to be recommended in pursuance of 
the second resolution," and consisted of Wythe, Harrison, 
Mathews, Henry, Randolph, George Mason, Nicholas, Grayson, 
Madison, Tyler, Marshall, Monroe, Ronald, Bland, Meriwether 
Smith, Paul Carrington, Innes, Hopkins, John Blair, and Simms. 

Randolph immediately reported a form of ratification, which 
was read and agreed to without debate ; and is as follows : 

"We, the Delegates of the People of Virginia, duly elected in 
pursuance of a recommendation from the General Assembly, and 
now met in Convention, having fully and freely investigated and 
discussed the proceedings of the Federal Convention, and being 
prepared, as well as the most mature deliberation hath enabled 
us, to decide thereon, Do, in the name and in the behalf of the 
People of Virginia, declare and make known, that the powers 
granted under the Constitution being derived from the People 



made a tie, and a single additional vote would have settled the fate of 
the Constitution for that time. Had Moore and McKee obeyed their 
instructions, and had Stuart, of Augusta, remained at home at the time 
of the Botetourt election, instead of using his influence effectually on 
the ground in favor of the Constitution, and of causing the Botetourt 
candidates to pledge themselves to sustain that system ; and had Paul 
Carrington voted with his colleague, Read, in favor of it, those five 
votes would have been forthcoming. That some of the delegates 
voted in opposition to the wishes of their constituents was well known 
at the time. 

266 This was an able committee, but a grave objection exists against 
it that it did not contain the name of an opponent of the Constitution. 
I am reminded by the names of Madison and Marshall of the fact that 
those two gentlemen were appointed to a similar committee in a similar 
body forty years afterwards. On the adjournment of that body, I walked 
home to our lodgings in the Eagle Tavern with the president, the late 
Philip Pendleton Barbour, and by the way asked him if he had been in 
the chair at a joint session of the Senate and House of Representatives, 
could he have selected such a committee, when he answered without 
hesitation, " No, nor from the Union at large." That committee con- 
sisted of Madison, Marshall, Tazewell, Doddridge, Leigh, Johnson, and 
Cooke; one from the tidewater country, two from above tide, two 
from the Valley, and one from the extreme west. 



348 VIRGINfA CONVENTION OF 1788. 

of the United States, may be resumed by them whensoever the 
same shall be perverted to their injury or oppression, and that 
every power not granted thereby remains with them, and at their 
will ; that therefore, no right of any denomination can be can- 
celled, abridged, restrained, or modified by the Congress, by the 
Senate or House of Representatives acting in any capacity, by 
the President, or any department, or officer of the United States, 
except in those instances in which power is given by the Con- 
stitution for those purposes ; and that among other essential 
rights, the liberty of conscience and of the press cannot be can- 
celled, abridged, restrained, or modified, by any authority of the 
United States. 

"With these impressions, with a solemn appeal to the searcher 
of hearts for the purity of our intentions, and under the convic- 
tion that whatsoever imperfections may exist in the Constitution, 
ought rather to be examined in the mode prescribed therein, 
than to bring the Union into danger by a delay, with a hope of 
obtaining amendments previous to the ratification : 

"We, the said Delegates, in the name and in behalf of the 
People of Virginia, do, by these presents, assent to, and ratify 
the Constitution, recommended on the seventeenth day of Sep- 
tember, one thousand seven hundred and eighty-seven, by the 
Federal Convention for the government of the United States, 
hereby announcing to all those whom it may concern, that the 
said Constitution is binding upon the said People, according to 
an authentic copy hereto annexed, in the words following:" 267 

(See the Constitution in the Appendix.) 

The Convention then ordered two fair copies of the form of 
ratification and of the Constitution to be engrossed forthwith, 
and adjourned to the next day at twelve o'clock. 

267 The form of ratification has been usually attributed to the pen of 
Madison; but I am compelled to give up this opinion, which was com- 
mon thirty years ago. It is but an enlargement of the preamble offered 
by Wythe, and doubtless from internal evidence written by him. That 
preamble is not such as in my opinion Madison or Randolph would 
have drawn, and is very properly amended in a vital part in the form 
of ratification. As Randolph was chairman of the committee which 
reported the form, and was a critical writer, and as the form was 
mainly an enlargement of the preamble presented by Wythe, the safer 
conjecture is that its merit belongs jointly to Randolph and Wythe. 



VIRGINIA CONVENTION OF 1788. 349 

On Thursday, the twenty-sixth day of June, at twelve o'clock, 
the Convention met, and, one copy only of the form of ratifica- 
tion having as yet been transcribed, it was read by the clerk, was 
signed by the president on behalf of the Convention, and was 
ordered " to be transmitted by the president to the United States 
in Congress assembled." 268 As the Committee on Amendments 
had not yet completed its schedule, the House, after making cer- 
tain allowances to its officers for services rendered during the 
session, adjourned until the next day at ten o'clock. 269 

On Friday, the twenty-seventh day of June, the Convention 
met for the last time. The session, which had lasted during 
twenty-five eventful days, was to close with the adjournment of 
that day. Nor was the public anxiety less intense than at an 
earlier stage of the proceedings. The hall of the Academy was 
crowded. Several of the members of the select committee, who 
happened to be late, could with difficulty force their way to their 
seats. It was certain that, unless the proposed amendments were 
acceptable to the minority, the worst results were yet to be ap- 
prehended. The members of that minority, who, in a house of 
one hundred and seventy members, were only ten less than the 
majority, and who, in all those qualities necessary for the guid- 
ance of men in a great crisis, were certainly not inferior to their 
opponents, might proceed to organize, and to digest a plan of 
operations, the effect of which would certainly be, in the first in- 
stance, to prevent all participation by Virginia in setting up the 
new government, and might ultimately end in the organization 
of a Southern confederacy. 270 Fortunately the friends of the 

268 That is, to the Congress of the Confederation, which held its sit- 
tings in New York, and "which determined on the i3th of September, 
1788; under the resolutions of the General Convention, that the Con- 
stitution had been established, and that it should go into operation on 
the first Wednesday of March (the fourth), 1789." 

269 The president was allowed forty shillings per day, Virginia cur- 
rency, for his pay ; the secretary, forty pounds in full ; the chaplain, 
thirty pounds; the sergeant, twenty-four pounds; each door-keeper, 
fifteen pounds. 

270 It is proper to remind the reader, what has been said before, that 
our greatest statesmen, to their dying day, believed that they had been 
trapped in calling the general Federal Convention, and that they dis- 
trusted "the military gentlemen," as George Mason called them, into 






350 VIRGINIA CONVENTION OF 1788. 

Constitution saw the full extent of the conjuncture, and deter- 
mined, by a manly patriotism, and by a spirit of concession as 
rare as it was honorable, to avert the impending danger. 

When Pendleton took the chair the clerk proceeded to read the 
second engrossed copy of the form of ratification, which was 
signed by the president. It was then ordered that the form 
should be deposited in the archives of the General Assembly. 
Wythe now rose and presented the amendments proposed by the 
select committee to be made to the Constitution in the mode pre- 
scribed by that instrument. Those amendments consisted of a 
Declaration of Rights, in twenty articles nearly similar to those 
prefixed to the Constitution of the State, and a series of amend- 
ments proper, also in twenty articles, to be added to the body of 
the Federal Constitution. The report of the committee ended 
in these words : " And the Convention do, in the name and be- 
half of the people of this Commonwealth, enjoin it upon their 
representatives in Congress to exert all their influence, and use 
all reasonable and legal methods to obtain a ratification of the 
foregoing alterations and provisions in the manner provided by 
the fifth article of the said Constitution ; and in all congressional 
laws to be passed in the meantime, to conform to the spirit of 
these amendments as far as the said Constitution will admit." 

The Declaration of Rights was then adopted without a divi- 
sion. The amendments proper were read, and a motion was 
made to amend them by striking out the third article in these 
words : " When Congress shall lay direct taxes or excises, they 
shall immediately inform the executive power of each State, of 
the quota of such State according to the census herein directed, 
which is proposed to be thereby raised ; and if the Legislature 
of any State shall pass a law which shall be effectual for raising 
such quota at the time required by Congress, the taxes and ex- 
cises laid by Congress shall not be collected in such State.' ' 



whose hands they feared the new government would be committed. 
All had unlimited confidence in the integrity of Washington ; but they 
had known him, as yet, as a silent member by their sides in the House 
of Burgesses, as an Indian fighter, and as the great commander of the 
armies during the Revolution, but never as a statesman. But, how- 
ever eminent he might be in every respect, he must lean mainly on the 
friends of the Constitution, who were the greatest soldiers of their day. 
Gray son expressed the general opinion when he said: "We have no 
fear of tyranny while he lives'' 



VIRGINIA CONVENTION OF 1788. 351 

This amendment, which it was proposed to strike out, was, in 
the estimation of the opponents of the Constitution, the most 
important of all. It struck at the root of the new Federal polity. 
Of that polity the distinguishing characteristic was that it was 
complete in itself and by itself in effectuating all measures within 
its scope; especially, that it was free to lay and collect taxes of its 
own authority and at its own discretion. This was deemed a car- 
dinal virtue by its friends, and a cardinal vice by its opponents. 
To strike this feature from the Constitution was substantially to 
fall back upon requisitions. What passed in the select com- 
mittee is not known, and, unless it may be gleaned from stray 
letters written at the time, which may hereafter be cast up, will 
remain a secret ; but it can hardly be doubted that the adoption 
of this amendment by the committee was made by Henry and 
Mason an indispensable preliminary of a peaceful adjustment. 
But it must also be sanctioned by the House ; otherwise its adop- 
tion by the committee would be too palpable a farce to impose on 
two such statesmen. Accordingly, the motion to strike it out failed 
by twenty votes. Pendleton was the most prominent opponent 
who gave way. He was followed by Paul Carrington. The gal- 
lant and patriotic Fleming, who carried to his grave a troublesome 
wound which he received in the thickest of the fight at Point 
Pleasant, followed the example of Carrington. Eight other 
members magnanimously followed Fleming, and ten votes taken 
from one scale and added to the other make up the decisive 
number. Thus, by the most decisive vote given during the ses- 
sion the Convention solemnly pledged itself to amend the power 
of direct taxation, and virtually to fall back upon requisitions. 271 

271 The ayes and noes were called by Nicholas, seconded by Harri- 
son, and were ayes, 65 ; noes, 85, as follows : 

AYES: G. Parker, G. Nicholas, W. Nicholas, Z. Johnston, A. Stuart, 
W. Dark, A. Stephen, M. McFerran, James Taylor, of Caroline, D. 
Stuart, C. Simms, H. Marshall, M. Pickett, H. Brooke, J. S. Woodcock, 
A. White, W. Lewis, T. Smith, [ohn Stuart, D. Fisher, A. Woodrow, 
G. Jackson, J. Prunty, A. Seymour, His Excellency Governor Ran- 
dolph, John Marshall, N. Burwell, R. Andrews, James Johnson (who 
was the latest survivor of the Convention, died at his residence in Isle 
of Wight county on the i6th day of August, 1845, aged ninety-nine 
years), R. Bullock, B. Ashton, W. Thornton, H. Towles, L Powell, W. 
O. Callis, R. Wormeley, Francis Corbin, W. McClerry, James Webb, 
James Taylor, of Norfolk, J. Stringer, L. Eyre, W. Jones, T. Gaskins, 



352 VIRGINIA CONVENTION OF 1788. 

The main question on concurring in the amendments proposed 
by the committee was then put, and decided in the affirmative 
without a division. The secretary was ordered to engross the 
amendments on parchment, to be signed by the president, and 
to transmit the same, with the ratification of the Federal Consti- 
tution, to the United States in Congress assembled. A fair en- 
grossed copy of the form of ratification, with the proposed 
amendments, was ordered to be signed by the president, and to 
be forwarded to the executive of each State in the Union. It 
was further ordered that the proceedings of the body be recorded 
in a well-bound book, and, when signed by the president and 
secretary, to be deposited in the archives of the Council of State. 
The printer was ordered to transmit fifty copies of the form of 
ratification, with the amendments, to each county in the State. 
Some accounts of the printer and of the carpenters, who had 
fitted up the hall of the Academy, were referred to the auditor 
for settlement, and the business of the Convention was done. 



A. Woods, James Madison, J. Gordon, of Orange, W. Ronald, T. 
Walke, Anthony Walke, Benjamin Wilson, John Wilson, of Randolph, 
W. Peachey, Andrew Moore, T. Lewis, G. Jones, J. Rinker, J. Williams, 
Benjamin Blunt, S. Kello, }. Allen, Cole Digges, B. Washington, the 
Hon. George Wythe, and Thomas Mathews 65. 

NOES: The Hon. Edmund Pendleton, president, E. Custis, J. Pride, 
William Cabell, S. J. Cabell, J. Trigg, C. Clay, William Fleming, Henry 
Lee, of Bourbon, John Jones, B. Jones, C. Patteson, D. Bell, R. Alex- 
ander, E. Winston, Thomas Read, the Hon. Paul Carrington, Benjamin 
Harrison, the Hon. John Tyler, D. Patteson, S. Pankey, junior, Joseph 
Michaux, French -Strother, Joseph Jones, Miles King, J. Haden, John 
Early, T. Arthur, J. Guerrant, W. Sampson, Isaac Coles, George Car- 
rington, Parke Goodall, John C. Littlepage, Thomas Cooper, W. Fleet, 
Thomas Roane, Holt Richeson, B. Temple, James Gordon, of Lancas- 
ter, Stevens Thompson Mason, W. White, Jona. Patteson, J. Logan, 
H. Pawling, John Miller, Green Clay, S. Hopkins, R. Kennon, Thomas 
Allen, A. Robertson, Walter Crockett, Abraham Trigg, Solomon Shep- 
herd, W. Clayton, Burwell Bassett, M. Walton, John Steele, R. Wil- 
liams, John Wilson, of Pittsylvania, T. Turpin, Patrick Henry, Edmund 
Ruffin, Theodoric Bland, William Grayson, C. Bullitt, W. Tomlin, W. 
McKee, Thomas Carter, H. Dickenson, James Monroe, J. Dawson, 
George Mason, A. Buchanan, John Hartwell Cocke, J. H. Briggs, 
Thomas Edmunds, the Hon. Richard Cary, S. Edmonson, and J. Mont- 
gomery 85. 

This list of names deserves to be well studied. 



VIRGINIA CONVENTION OF 1788. 353 

And now the last scene was at hand. Some member, whose 
name has not come down to us, offered a resolution expressive v 
of the sense entertained by the Convention of the dignity, the 
impartiality, and the ability displayed by Pendleton in the chair. 
It was received with unanimous assent. A motion to adjourn 
sine die was then made and carried. Then that old man, who 
had hitherto kept his seat when putting a question to the House, 
was seen to rise slowly from the chair ; and while he was adjust- 
ing himself on his crutches, the members on the farthest benches 
crept quietly into the body of the hall. They were unwilling to 
lose any of the last words of an eminent man whose name had 
been honored by their fathers and by their grandfathers ; whose 
skill in debate was unrivalled, and who was about to close, on a 
solemn occasion aptly designed for such an event, a parliamentary 
career the longest and most brilliant in our annals. His first 
words were almost inaudible to those nearest him. He said "he 
felt grateful to the House for the mark of respect which they had 
just shown him. He was conscious that his infirmities had pre- 
vented him from discharging the duties of the chair satisfactory 
to himself, and he therefore regarded the expression of the good 
will of his associates with the more grateful and the more tender 
sensibility. He knew that he was now uttering the last words 
that he should ever address to the representatives of the people. 
His own days were nearly spent, and whatever might be the 
success or failure of the new government, he would hardly live 
to see it. But his whole heart was with his country. She had 
overlooked his failings and had honored him far beyond his 
deserts, and every new mark of her esteem had been to him a 
fresh memorial of his duty to serve her faithfully. The present 
scene would recall to others, as it did to him, a similar one which 
occurred twelve years ago. The Convention had then declared 
independence, and the members who had cheerfully incurred the 
risks of a war with a powerful nation, were about to depart to 
sustain their country by their counsels and by their valor. He 
saw some of those members before him. A kind Providence 
had blessed them beyond their hopes. They had gained their 
liberty, and their country was placed among the nations of the 
earth. They had acquired a territory nearly as large as the con- 
tinent of Europe. That territory connected them with two great 
warlike and maritime nations, whose power was formidable and 



354 VIRGINIA* CONVENTION OF 1788. 

whose friendship was at least doubtful. The defects of the Con- 
federation were generally admitted, and the Constitution, which 
has been ratified by us, is designed to take its place. This Con- 
vention was called to consider it. 

" Heretofore our Conventions had met in the midst of a raging 
war. Now all was peace. There was no enemy within our bor- 
ders to intimidate or annoy us. The Constitution was in some 
important respects defective. The numerous amendments pro- 
posed by the Convention were designed to point out those de- 
fects, and to remove them. The members had performed their 
duty with the strictest fidelity, and he was pleased to see so many 
young, eloquent, and patriotic men ready to take the places of 
those who must soon disappear. He beseeched gentlemen who 
had acquitted themselves with a reputation that would not be lost 
to posterity, to forget the heats of discussion, and remember that 
each had only done what he deemed to be his duty to his coun- 
try. Let us make allowances for the workings of a new system. 
It is the Constitution of our country. If our hopes should be 
disappointed, and should the government turn out badly, the 
remedy was in our own hands. Virginia gave, and Virginia would 
take away. But all radical changes in governments should be 
made with caution and deliberation. We could know the present, 
but the future was full of uncertainties. The best government was 
not perfect, and even in a government that has serious defects, 
the people might enjoy, by a prudent and temperate administra- 
tion, a large share of happiness and prosperity. But it was his 
solemn conviction that a close and firm union was essential to the 
safety, the independence, and the happiness of all the States, and 
with his latest breath he would conjure his countrymen to keep 
this cardinal object steadily in view. We are brothers ; we are 
Virginians. Our common object is the good of our country. 
Let us breathe peace and hope to the people. Let our rivalry be 
who can serve his country with the greatest zeal ; and the future 
would be fortunate and glorious. His last prayer should be for 
his country, that Providence might guide and guard her for years 
and ages to come. If ever a nation had cause for thankfulness 
to Heaven, that nation was ours. As for himself, if any unpleas- 
ant incident had occurred in debate between him and any mem- 
ber, he hoped it would be forgotten and forgiven ; and he tendered 
to all the tribute of his most grateful and affectionate respect. 



VIRGINIA CONVENTION OF 1788. 355 

One duty alone remained to be performed, and he now pro- 
nounced the adjournment of the Convention without day." 

While Pendleton was speaking, we are told that the House was 9 
in tears. Members who had mixed in the fierce m&lee, and who 
had uttered the wildest imprecations on the Constitution, as they 
listened to his calm, monitory voice, could not restrain their emo- 
tions. Old men, who had heard his parting benediction twelve 
years before to the Convention which declared independence, and 
called to mind his manly presence and the clear silver tones of a 
voice now tremulous and faint from infirmity and age, bowed 
their heads between their hands and wept freely. But in the ^ 
midst of weeping the deep blue eye of Pendleton was undimmed. 
When he concluded his speech he descended from the chair, and, 
taking his seat on one of the nearest benches, he bade adieu to 
the members individually, who crowded around him to press a 
parting salutation. The warmest opponents were seen to ex- 
change parting regards with each other. For it was a peculiar 
and noble characteristic of our fathers, when the contest was de- 
cided, to forgive and forget personal collisions, and to unite heart 
and hand in the common cause. On the breaking up of the 
House many members ordered their horses, and were before sun- 
set some miles on their way homeward ; and before the close of 
another day all had disappeared ; and there was no object to re- 
mind the citizen of Richmond, as at nightfall through deserted 
streets he sought his home, that the members of one of the most 
illustrious assemblies that ever met on the American continent 
had finished their deliberations, had discharged the high trust 
confided to them by their country, and had again mingled with 
the mass of the people. 




APPENDIX. 



As a specimen of the complaints about the state of trade in 
1785, I annex, with some comments upon it, an extract from a 
letter of Mr. Madison, dated Orange C. H., July 7, 1785, and 
addressed to R. H. Lee, which may be seen in Mr. Rives' His- 
tory of the Life and Times of Madison, Vol. II, 47, note : 

" What makes the British monopoly the more mortifying is 
the abuse which they make of it. Not only the private planters, 
who have resumed the practice of shipping their own tobacco, 
but many of the merchants, particularly the natives of the coun- 
try, who have no connections with Great Britain, have received 
accounts of sales this season which carry the most visible and 
shameful frauds in every article. In every point of view, indeed, 
the trade of the country is in a most deplorable condition. 

"A comparison of current prices here with those in the 
Northern States, either at this time or at -any time since the 
peace, will show that the loss direct on our produce, and indirect 
on our imports, is not less than fifty per cent. Till very lately 
the price of one staple has been down at 323. and 333. on James 
river, at 283. on Rappahannock river tobacco. During the same 
period the former was selling in Philadelphia, and I suppose in 
other Northern ports, at 443. of this currency, and the latter in 
proportion, though it cannot be denied that tobacco in the 
Northern ports is intrinsically worth less than it is here, being 
at the same distance from the ultimate market, and burthened 
with the freight from this to the other States. The price of 
merchandise here is, at least, as much above, as that of tobacco 
is below, the Northern standard." 

The British monopoly spoken of in the letter was nothing 
more or less than that England, having more ships than any 



358 APPENDIX. 

other nation, sent more of them to Virginia than any other 
nation did. Had France, or Spain, or Holland, or any other 
country, been fortunate enough to own more ships than its 
neighbor, the same ground of complaint would have existed ; 
or had all the foreign shipping that entered our ports been 
equally divided among foreign powers, the ground of complaint 
would have been the same. The ship-carpenters, and the mer- 
chants who owned home-built ships, were dissatisfied at the 
state of things, and called for relief. And supposing, for the 
sake of argument, it would have been expedient to burden for- 
eign vessels with taxes, the Assembly of Virginia had full au- 
thority to administer the proposed relief, which was done at the 
session following the date of the letter by the passage of an act 
imposing a tax on British shipping. And if it be alleged that, 
if Virginia imposed a tax, Maryland would admit the vessel 
taxed duty-free, it is conclusive to say that Virginia, with the 
assent of Congress, which followed as a matter of course, could 
form any agreement she pleased with Maryland, and did take effi- 
cient measures for so doing at the session of 1785. Thus far 
all that is complained of by Mr. Madison could be accomplished 
by an ordinary Act of Assembly, and required no change in the 
organic law. 

The next ground of complaint is, that the foreign commission 
merchants made fraudulent returns to the planter; a very bad 
thing indeed, and justified a change of agents ; but surely such 
a change could be made without overturning the government of 
the Confederation. Indeed, the Philadelphians, as it appears 
from the last sentence of the letter, did find honest agents abroad, 
we may suppose, if it be true, as alleged, that they sold their 
imported articles so much lower than they could be sold on James 
river. What the Northern merchant could do under the exist- 
ing Confederation, we could do as well. 

The second paragraph, which relates to current prices of to- 
bacco in Philadelphia and in the Virginia waters, will strike every 
man of business as representing an abnormal state of trade, which 
is frequently seen under every system of laws. The obvious ex- 
planation is, that Philadelphia was not a tobacco market, and that 
what little tobacco she had was mainly designed to make up the 
complement of assorted cargoes, and would naturally command 
under such circumstances a higher price than the article was sell- 



APPENDIX. 359 

ing for several hundred miles off. If the Philadelphia market 
had been stable at the prices named in the letter, and if the Vir- 
ginia planter lost fifty per cent, of his crop and of his return 
purchases by sending it to England, it is plain that the whole to- 
bacco crop of Virginia would have been at the foot of Market- 
street wharf in that city in less than six weeks from the time when 
the intelligence reached James river ; for vessels were abundant, 
according to the letter itself. The saving in time, in freight, and 
in foreign purchases, would have put the Northern market ahead 
of all the world. Such inequalities, then, could have been reme- 
died by a little management and common sense alone, without 
any change in the Federal alliances of Virginia. 

But the great value of this letter, which has been selected from 
the files of Mr. Madison to show the desperate condition of 
affairs under the government of the Confederation, and to justify 
that statesman in his policy of depriving his native State of the 
invaluable right of regulating her own trade, consists in affording 
an unconscious, but not the less remarkable, proof of the commer- 
cial prosperity of Virginia at the time in question. Let it be re- 
membered that the treaty with Great Britain, that ended the war 
of the Revolution, was not signed at Paris till the 3d day of Sep- 
tember, 1783, and was not ratified by Congress until the i4th 
day of January, 1784; and that this letter of Mr. Madison was 
written in July, 1785 ; and that, besides the large trade and com- 
merce of Norfolk, which we know from other sources, it repre- 
sents the planters shipping from their own estates their abundant 
agricultural products in the ships of a single nation which were 
so numerous as to monopolize the trade and fix what rates they 
pleased ; and that all this trade and commerce was the growth of 
less than eighteen months, and we have before us, under all the 
circumstances of the case, a picture of prosperity almost without 
a parallel. And this picture is heightened by the purport of 
three petitions, which are given on the same pages which con- 
tain the above letter. These petitions come from Norfolk, Ports- 
mouth and Suffolk. That from Norfolk is in the following words : 
"That the prohibition laid by Great Britain on the trade to the 
West Indies, and the almost total monopoly of the other branches 
of trade by foreigners, has produced great distress and much 
injury to the trade of the Commonwealth ; that the rapid de- 
crease of American bottoms, the total stop to ship-building and 



360 APPENDIX. 

to the nursery of American seamen occasioned thereby, threaten 
the most alarming consequences unless timely avoided by the 
wisdom of the Legislature." 

The object of this petition, which comes from the ship- carpen- 
ters and the merchants who built vessels, is the laying of a tax 
on the ships of all countries trading to our ports to favor their 
own private gain, which, so far as that private gain is the public 
gain, and no farther, is commendable ; and in asking for a tax on 
foreign tonnage, they sought what the Assembly could grant 
most effectually if it pleased, and was granted at the said session 
of 1785, no change in the Federal system being necessary for 
such a purpose. As for the prohibition on the West India trade, 
which only means that Great Britain would not allow our vessels, 
any more than the vessels of other nations, to engage in what she 
regards as her coasting trade, the petition, whether presented in 
1785 or 1826, would have been beyond the power of any nation 
under any possible form of government to have granted. Great 
Britain determined to be the carrier of the productions of her 
Colonies in her own bottoms ; but and this is one of the 
bright signs of those times all those productions were brought 
to our ports by her vessels, which received in return the products 
of our own industry, and the result was a most profitable busi- 
ness that greatly enhanced our prosperity. The complaint of 
the Norfolk merchants was that, in addition to the gains resulting 
from such a commerce, they could not secure the profits of the 
carrying trade. They sucked the orange dry, and muttered that 
the producer of the orange kept the rind to himself. 

The petitioners further urged as a grievance that, besides their 
inability to substitute their own vessels for the vessels owned by 
the West Indians who brought their valuable cargoes to Norfolk, 
and took back our produce in return, "there was an almost 
total monopoly of other branches of trade by foreigners" The 
history of the case is this : Norfolk had been reduced to ashes 
at the beginning of the war, and the whole population sent into 
the interior. It was so effectually destroyed by the British and 
by our own people that it was a boast that in that once flourish- 
ing town a shed could not be found to shelter a cow. Let it be 
remembered that among the merchants and traders of the town 
before it was burned, comparatively few were native Virginians, 
who regarded mercantile employments with dislike. As soon 



APPENDIX. 361 

as the war was over, hundreds of enterprising business men of 
every class and of every country flocked to the town, and in a 
short time restored it to a degree of prosperity which it had 
never known before. These men from abroad brought with 
them a capital in money as well as skill, and the business natu- 
rally fell into their hands. They became good citizens, married 
good Virginia wives, and the blood of one who came to Virginia 
from Scotland in 1783, and helped to build up the prosperity of 
that era, flows in the veins of him who traces these lines. I only 
wish we had the same ground of complaint now that the Nor- 
folk petitioners had then. 

The Norfolk petition further urges some relief against " the 
decrease of American bottoms." Then the business men of 
that day had a choice between home and foreign bottoms, and 
preferred the foreign. Now, according to the received laws of 
free trade, for which the South has ever been such an advocate, 
that preference was just; as to place the home bottoms on a 
level with the foreign, by legislation, would be to pay the home 
ship-owner a bounty not only equal to the difference in the 
charge of freight, but to the costs of collection. But, whatever 
we may think of the doctrines of free trade, the Assembly was 
competent to apply the remedy, and no organic change was 
needed on this account. And let it be kept in mind that, as 
Norfolk was a wilderness, destitute of people, capital, and skill 
at the close of the war, the men, the capital, and the skill which 
built these home-made vessels, which were said to be diminish- 
ing, were all the result of a space of time not exceeding eighteen 
months. 

The Portsmouth memorial, quoted by Mr. Rives, is as follows: 
The petitioners affirm that 4< the present deplorable state of 
trade, occasioned by the restrictions and policy of the British 
acts of navigation, has caused great and general distress, and 
threatens total ruin and decay to the several branches of com- 
merce ; " and we add from the Journal of the House of Delegates 
(October session of 1785, page 24,) the mode of relief desired 
by the petitioners, which is " that certain restrictive acts may be 
imposed on the British trade, or other more adequate and effec- 
tual measures adopted for relief therein." Here we have the 
remedy proposed by the petitioners, which is to tax foreign ton- 
nage to such a degree as either to drive it from our ports or to 



362 APPENDIX. 

enable them to build ships to compete with it. And Suffolk 
adds "that even the coasting trade and inland navigation had 
fallen into the hands of foreigners." What we would call atten- 
tion to is the fact that these petitioners fully believed that the 
Assembly possessed the power, as it assuredly did, to grant the 
relief desired, and professed no wish for a change in our federal 
system. As to a business view of the matter, when we recall the 
fact that, on the declaration of peace, we had hardly a canoe to 
launch on the waters of the Elizabeth, and not a solitary dollar 
in specie, and that our merchants had accumulated so early a 
moneyed capital which inspired them with the hopes of driving all 
foreign bottoms from our waters and all this in the space of 
eighteen months we see in all these memorials from our sea- 
ports, not the proofs of a decreasing trade, as some would have 
us believe, but the most infallible indications of commercial 
success. 

Of all the men of his times, Mr. Madison possessed that caste 
of intellect best adapted for the discussions of commerce and 
political economy. But his sphere of personal observation was 
very limited. He never visited Petersburg, I believe ; and, as 
well as I could learn from his writings, from the recollections of 
his intimate friends, and from conversations which I have had 
with him from time to time about Norfolk, he never visited our 
seaport in the interval between 1783 and 1788, if ever. He lived 
far beyond the scent of salt water in Orange, which was then as 
distant from Norfolk, if we measure distance by the time of ordi- 
nary travel, as Quebec or New Orleans is now. The only breath 
of sea air he probably ever drew was in crossing from the Jersey 
shore to New York to take his seat in Congress. He served but 
a single session in our Assembly, the October session of 1776, 
when he was twenty-five, and the next deliberative body of which 
he was a member was Congress, in which he remained the consti- 
tutional term of three years, and to which he was returned as 
soon as he was eligible. He was thus led to regard the Union 
as his patriotic stand -point and a glorious stand -point it was 
and not the State of Virginia, one more glorious still ; and his 
occasional appearances in the Assembly, in which he rendered 
invaluable service to his country, but in which on federal topics 
he was almost powerless, did not conquer his central preposses- 
sions. But in or out of Congress, a truer patriot never lived. 



APPENDIX. 363 



CONSTITUTION. 



WE the people of the United States, in order to form a more perfect 
Union, establish Justice, insure domestic Tranquility, provide for the 
common defence, promote the general Welfare, and secure the Bles- 
sings of Liberty to ourselves and our Posterity, do ordain and estab- 
lish this CONSTITUTION for the United States of America. 

ARTICLE I. 

SECTION I. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

SECTION II. i. The House of Representatives shall be composed of 
members chosen every second Year by the People of the several States, 
and the Electors in each State shall have the Qualifications requisite 
for Electors of the most numerous Branch of the State Legislature. 

2. No person shall be a representative who shall not have attained 
to the Age of twenty five Years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of 
that State in which he shall be chosen. 

3. Representatives and direct Taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective Numbers, which shall be determined by adding to the 
whole Number of free Persons, including those bound to Service for a 
Term of Years, and excluding Indians not taxed, three-fifths of all 
other Persons. The actual Enumeration shall be made within three 
Years after the first Meeting of the Congress of the United States, and 
within every subsequent Term of ten Years, in such Manner as they 
shall by Law direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have at Least one 
Representative ; and until such enumeration shall be made, the State 
of New Hampshire shall be entitled to chuse three, Massachusetts 
eight, Rhode-Island and Providence Plantations one, Connecticut five, 
New- York six, New Jersey four, Pennsylvania eight, Delaware one, 
Maryland six, Virginia ten, North Carolina five, South Carolina five, and 
Georgia three. 

4. When vacancies happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies. 

5. The House of Representatives shall chuse their Speaker and 
other Officers ; and shall have the sole Power of Impeachment. 



364 APPENDIX. 

SECTION III. i. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature thereof, 
for six Years: and each Senator shall have one Vote. 

2. Immediately after they shall be assembled in Consequence of the 
first Election, they shall be divided as equally as may be into three 
Classes. The seats of the Senators of the first Class shall be vacated 
at the Expiration of the second Year, of the second Class at the Expi- 
ration of the fourth Year, and of the third Class at the Expiration of 
the sixth Year, so that one-third may be chosen every second Year ; 
and if Vacancies happen by Resignation, or otherwise, during the Re- 
cess of the Legislature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the Legislature, 
which shall then fi)l such Vacancies. 

3. No person shall be a Senator who shall not have attained to the 
Age of thirty Years, and been nine Years a Citizen of the United States, 
and who shall not, when elected, be an Inhabitant of that State for 
which he shall be chosen. 

4. The Vice President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

5. The Senate shall chuse their other Officers, and also a President 
pro tempore, in the Absence of the Vice President, or when he shall 
exercise the Office of President of the United States. 

6. The Senate shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice shall 
preside : And no Person shall be convicted without the Concurrence of 
two-thirds of the Members present. 

7. Judgment in Cases of Impeachment shall not extend further than 
to removal from Office, and Disqualification to hold and enjoy any 
Office cf honour, Trust or Profit under the United States: but the 
Party convicted shall nevertheless be liable and subject to Indictment, 
Trial, Judgment and Punishment, according to law. 

SECTION IV. i. The Times, Places and Manner of holding Elections 
for Senators and Representatives, shall be prescribed in each State by 
the Legislature thereof; but the Congress may at any time by Law 
make or alter such Regulations, except as to the places of chusing 
Senators. 

2. The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall by 
Law appoint a different Day. 

SECTION V. i. Each House shall be the Judge of the Elections, Re- 
turns and Qualifications of its own Members, and a Majority of each 
shall constitute a Quorum to do Business ; but a smaller Number may 
adjourn from day to day, and may be authorized to compel the At- 
tendance of Absent Members, in such Manner, and under such Penal- 
ties as each House may provide. 



APPENDIX. 365 

2. Each House may determine the Rules of its Proceedings, punish 
its Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

3. Each House shall keep a Journal of its Proceedings, and from 
time to time publish the same, excepting such Parts as may in their 
Judgment require Secrecy ; and the Yeas and Nays of the Members of 
either House on any question shall, at the Desire of one fifth of those 
Present, be entered on the Journal. 

4. Neither House, during the Session of Congress, shall, without the 
Consent of the other, adjourn for more than three days, nor to any 
other Place than that in which the two Houses shall be sitting. 

SECTION VI. i. The Senators and Representatives shall receive a 
compensation for their Services, to be ascertained by Law, and paid 
out of the Treasury of the United States. They shall in all Cases, ex- 
cept Treason, Felony and Breach of the Peace, be privileged from Ar- 
rest during their Attendance at the Session of their respective Houses, 
and in going to and returning from the same ; and for any Speech or 
Debate in either House, they shall not be questioned in any other 
Place. 

2. No Senator or Representative shall, during the Time for which he 
was elected, be appointed to any civil Office under the Authority of the 
United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time ; ,and no Person 
holding any Office under the United States, shall be a Member of either 
House during his Continuance in Office. 

SECTION VII. i. All Bills for raising Revenue shall originate in the 
House of Representatives ; but the Senate may propose or concur with 
Amendments as on other Bills. 

2. Every Bill which shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the Presi- 
dent of the United States ; if he approve he shall sign it, but if not he 
shall return it, with his Objections to that House in which it shall have 
originated, who shall enter the Objections at large on their Journal, 
and proceed to reconsider it. If after such Reconsideration two thirds 
of that House shall agree to pass the Bill, it shall be sent, together 
with the Objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that House, it shall be- 
come a Law. But in all such Cases the Votes of both Houses shall be 
determined by Yeas and Nays, and the Names of the Persons voting 
for and against the Bill shall be entered on the Journal of each House 
respectively. If any Bill shall not be returned by the President within 
ten Days (Sundays excepted) after it shall have been presented to him, 
the Same shall be a law, in like Manner as if he had signed it, unless 
the Congress by their Adjournment prevent its Return, in which Case 
it shall not be a Law. 

3. Every Order, Resolution, or Vote to which the Concurrence of the 



366 ^ APPENDIX. 

Senate and House of Representatives may be necessary (except on a 
question of Adjournment) shall be presented to the President of the 
United States ; and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two thirds 
of the Senate and House of Representatives, according to the Rules 
and Limitations prescribed in the Case of a Bill. 
SECTION VIII. The Congress shall have Power 

1. To lay and collect Taxes, Duties, Imposts and Excises,, to pay the 
Debts and provide for the common Defence and general Welfare of the 
United States ; but all Duties, Imposts and Excises shall be uniform 
throughout the United States ; 

2. To borrow Money on the credit of the United States ; 

3. To regulate Commerce with foreign Nations, and among the sev- 
eral States, and with the Indian Tribes ; 

4. To establish an uniform Rule of Naturalization, and uniform Laws 
on the subject of Bankruptcies throughout the United State ; 

5. To coin Money, regulate the Value thereof, and of foreign Coin, 
and fix the Standard of Weights and Measures ; 

6. To provide for the Punishment of counterfeiting the Securities and 
current Coin of the United States ; 

7. To establish Post Offices and post Roads ; 

8. To promote the progress of Science and useful Arts, by securing 
for limited Times to Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries ; 

9. To constitute Tribunals inferior to the supreme Court; 

10. To define and punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations ; 

11. To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water ; 

12. To raise and support Armies, but no Appropriation of Money to 
that Use shall be for a longer Term than two Years ; 

13. To provide and maintain a Navy ; 

14. To make Rules for the Government and Regulation of the land 
and naval forces ; 

15. To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repel Invasions; 

16. To provide for organizing, arming, and disciplining, the Militia, 
and for governing such Part of them as may be employed in the Ser- 
vice of the United States, reserving to the States respectively, the Ap- 
pointment of the Officers, and the Authority of training the Militia 
according to the Discipline prescribed by Congress ; 

17. To exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Cession of 
particular States, and the Acceptance of Congress, become the Seat of 
the Government of the United States, and to exercise like Authority 
over all Places purchased by the Consent of the Legislature of the 



APPENDIX. 367 

State in which the Same shall be, for the Erection of Forts, Magazines, 
Arsenals, Dock- Yards, and other needful Building;; ; And 

18. To make all Laws which shall be necessary and proper for car- 
rying into Execution the foregoing Powers, and all other Powers vested 
by this Constitution in the Government of the United States, or in any 
Department or Officer thereof. 

SECTION IX. i. The Migration or Importation of such Persons as any 
of the States now existing shall think proper to admit, shall not be 
prohibited by the Congress prior to the Year one thousand eight hun- 
dred and eight, but a Tax or Duty may be imposed on such Importa- 
tion, not exceeding ten dollars for each Person. 

2. The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it. 

3. No Bill of Attainder or ex post facto Law shall be passed. 

4. No Capitation or other direct Tax shall be laid, unless in Propor- 
tion to the Census or Enumeration herein before directed to be taken. 

5. No Tax or Duty shall be laid on Articles exported from any State. 
6 No Preference shall be given by any Regulation of Commerce or 

Revenue to the Ports of one State over those of another : nor shall 
Vessels bound to, or from, one State, be obliged to enter, clear, or pay 
Duties in another. 

7. No Money shall be drawn from the Treasury, but in Consequence 
of Appropriations made by Law ; and a regular Statement and Ac- 
count of the Receipts and Expenditures of all public Money shall be 
published from time to time. 

8. No title of Nobility shall be granted by the United States : And 
no Person holding any Office of Profit or Trust under them, shall 
without the Consent of the Congress, accept of any present, Emolu- 
ment, Office, or Title, of any kind whatever, from any King, Prince, or 
foreign State. 

SECTION X. i. No State shall enter into any Treaty, Alliance, or Con- 
federation ; grant Letters of Marque and Reprisal ; coin Money ; emit 
Bills of Credit ; make any Thing but gold and silver Coin a Tender in 
Payment of Debts ; pass any Bill of Attainder, ex post facto Law, or 
Law impairing the Obligation of Contracts, or grant any Title of No- 
bility. 

2. No State shall, without the consent of the Congress, lay any Im- 
post or Duties on Imports or Exports, except what may be absolutely 
necessary for executing it's inspection Laws : and the net Produce of 
all Duties and Imposts laid by any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States; and all such Laws 
shall be subject to the Revision and Controul of the Congress. 

3. No State shall, without the Consent of Congress, lay any duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into 
any agreement or Compact with another State, or with a foreign Power, 



368 APPENDIX. 

. 

or engage in War, unless actually invaded, or in such imminent Danger 
as will not admit of Delay. 

ARTICLE II. 

SECTION I. i. The executive Power shall be vested in a President of 
the United States of America. He shall hold his Office during the 
Term of four Years, and, together with the Vice President, chosen for 
the same Term, be elected, as follows: 

2. Each State shall appoint, in such Manner as the Legislature there- 
of may direct, a Number of Electors, equal to the whole Number of 
Senators and Representatives to which the State may be entitled in the 
Congress : but no Senator or Representative, or Person holding an 
Office of Trust or Profit under the United States, shall be appointed 
an elector. 

3. The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhabitant 
of the same State with themselves. And they shall make a list of all 
the Persons voted for, and of the number of votes for each ; which List 
they shall sign and certify, and transmit sealed to the Seat of the Gov- 
ernment of the United States, directed to the President of the Senate. 
The President of the Senate shall, in the Presence of the Senate and 
House of Representatives, open all the Certificates, and the Votes 
shall then be counted. The Person having the greatest number of 
Votes shall be the President, if such a number be a Majority of the 
whole Number of Electors appointed; and if there be more than one 
who have such Majority, and have an equal number of votes, then the 
House of Representatives shall immediately chuse by Ballot one of 
them for President ; and if no Person have a Majority, then from the 
five highest on the List the said House shall in like manner chuse the 
President. But in chusing the President, the Votes shall be taken by 
States, the Representation from each State having one Vote: A Quo- 
rum for this Purpose shall consist of a Member or Members from two- 
thirds of the States, and a Majority of all the States shall be necessary 
to a Choice. In every Case, after the Choice of the President, the Per- 
son having the greatest Number of Votes of the Electors shall be the 
Vice President. But if there should remain two or more who have 
equal Votes, the Senate shall chuse from them by Ballot the Vice 
President. 

4. Congress may determine the Time of Chusing the Electors, and 
the Day on which they shall give their Votes; which day shall be the 
same throughout the United States. 

5. No Person except a natural born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, shall 
be eligible to the Office of President ; neither shall any Person be eli- 
gible to that Office who shall not have attained to the Age of thirty-five 
Years, and been fourteed Years a Resident within the United States. 



APPENDIX. 369 

6. In Case of the Removal of the President from Office, or of his 
Death, Resignation, or Inability to Discharge the Powers and Duties 
of the said Office, the same shall devolve on the Vice President, and 
the Congress may by Law provide for the Case of Removal, Death, 
Resignation, or Inability, both of the President and Vice President, 
declaring what Officer shall then act as President, and such Officer 
shall act accordingly, until the Disability be removed, or a President 
shall be elected. 

7. The President shall, at stated Times, receive for his Services, a 
Compensation, which shall neither be increased nor diminished during 
the Period for which he shall have been elected, and he shall not re- 
ceive withjn that Period any other Emolument from the United States, 
or any of them. 

8. Before he enter on the Execution of his Office, he shall take the 
following Oath or Affirmation : 

" I do solemnly swear (or affirm) that I will faithfully execute the 
" Office of President of the United States, and will to the best of my 
" Ability, preserve, protect and defend the Constitution of the United 
"States." 

SECTION II. i. The President shall be Commander in Chief of the 
Army and Navy of the United States, and of the Militia of the several 
States, when called into the actual Service of the United States ; he 
may require the Opinion, in writing, of the principal Officer in each of 
the executive Departments, upon any Subject relating to the Duties of 
their respective Offices, and he shall have power to grant Reprieves 
and Pardons for Offences against the United States, except in Cases of 
Impeachment. 

2. He shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two thirds of the Senators present 
concur; and he shall nominate, and by and with the Advice and Con- 
sent of the Senate, shall appoint Embassadors, other public Ministers 
and Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law : but the Congress may by 
Law vest the Appointment of such inferior Officers, as they think 
proper, in the President alone, in the Courts of Law, or in the Heads 
of Departments. 

3. The President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions 
which shall expire at the End of their next Session. 

SECTION III. He shall from time to time give to the Congress Infor- 
mation of the State of the Union, and recommend to their Considera- 
tion such Measures as he shall judge necessary and expedient ; he may, 
on extraordinary Occasions, convene both Houses, or either of them, 
and in Case of Disagreement between them, with Respect to the time 
of Adjournment, he may adjourn them to such time as he shall think 

24 



370 APPENDIX. 

proper : he shall receive Ambassadors and other public Ministers ; he 
shall take Care that the Laws be faithfully executed, and shall Com- 
mission all the Officers of the United States. 

SECTION IV. The President, Vice President and all civil Officers of 
the United States, shall be removed from Office on Impeachment for, 
and Conviction of, Treason, Bribery, or other high Crimes and Misde- 
meanors. 

ARTICLE III. 

SECTION I. The judicial Power of the United States, shall be vested 
in one supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish. The Judges, both of the su- 
preme and inferior Courts, shall hold their Offices during good Beha- 
vior, and shall, at stated Times, receive for their Services, a Compen- 
sation, which shall not be diminished during their Continuance in 
Office. 

SECTION II. i. The judicial Power shall extend to all Cases, in Law 
and Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their Au- 
thority ; to all Cases affecting Ambassadors, other public Ministers, 
and Consuls ; to all Cases of admiralty and maritime Jurisdiction ; to 
Controversies to which the United States shall be a Party; to Contro- 
versies between two or more States ; between a State and Citizens of 
another State ; between Citizens of different States, between Citizens 
of the same State claiming Lands under Grants of different States, and 
between a State, or the Citizens thereof, and foreign States, Citizens or 
Subjects. 

2. In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be a Party, the supreme Court 
shall have original Jurisdiction. In all the other Cases before men- 
tioned, the supreme Court shall have appellate Jurisdiction, both as to 
Law and fact, with such Exceptions, and under such Regulations as 
the Congress shall make. 

3. The trial of all Crimes, except in Cases of Impeachment, shall be 
by Jury ; and such trial shall be held in the State where the said Crimes 
shall have been committed ; but when not committed within any State, 
the Trial shall be at such Place or Places as the Congress may by Law 
have directed. 

SECTION III. i. Treason against the United States, shall consist only 
in levying War against them, or in adhering to their Enemies, giving 
them Aid and Comfort. No Person shall be convicted of Treason un- 
less on the Testimony of two Witnesses to the same overt Act, or on 
Confession in open Court. 

2. The Congress shall have Power to declare the Punishment of 
Treason, but no Attainder of Treason shall work Corruption of Blood, 
or Forfeiture except during the Life of the Person attainted. 



APPENDIX. 371 



ARTICLE IV. 

SECTION I. Full faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every other State. 
And the Congress may by general Laws prescribe the Manner in which 
such Acts, Records and Proceedings shall be proved, and the Effect 
thereof. 

SECTION II. i. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 

2. A Person charged in any State with Treason, Felony, or other 
Crime, who shall flee from Justice, and be found in another State, shall 
on Demand of the executive Authority of the State from which he 
fled, be delivered up, to be removed to the State having Jurisdiction 
of the Crime. 

3. No Person held to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or 
Regulation therein, be discharged from such Service or Labour, but 
shall be delivered up on Claim of the Party to whom such Service or 
Labour may be due. 

SECTION III. i. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within the 
Jurisdiction of any other State ; nor any State be formed by the Junc- 
tion of two or more States, or Parts of States, without the Consent of 
the Legislatures of the States concerned as well as of the Congress. 

2. The Congress shall have Power to dispose of and make all need- 
ful Rules and Regulations respecting the Territory or other Property 
belonging to the United States ; and nothing in this Constitution shall 
be so construed as to Prejudice any Claims of the United States, or of 
any particular State. 

SECTION IV. The United States shall guarantee to every State in 
this Union a Republican Form of Government, and shall protect each 
of them against Invasion ; and on Application of the Legislature, or 
of the Executive (when the Legislature cannot be convened) against 
domestic Violence. 

ARTICLE V. 

The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
Application of the Legislatures of two thirds of the several States, 
shall call a Convention for proposing Amendments, which, in either 
Case, shall be valid to all Intents and Purposes, as Part of this Consti- 
tution, when ratified by the Legislatures of three fourths of the several 
States, or by Conventions in three fourths thereof, as the one or the 
other Mode of Ratification may be proposed by the Congress : Pro- 
vided that no Amendment which may be made prior to the Year one 



372 APPENDIX. 

thousand eight hundred and eight shall in any Manner affect the first 
and fourth Clauses in the Ninth Section of the first Article ; and that 
no State, without its Consent, shall be deprived of its equal Suffrage in 
the Senate. 

ARTICLE VI. 

1. All Debts contracted and Engagements entered into, before the 
Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation. 

2. This Constitution, and the Laws of the United States which shall 
be made in Pursuance thereof; and all Treaties made, or which shall 
be made, under the authority of the United States, shall be the supreme 
Law of the Land ; and the Judges in every State shall be bound there- 
by, any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding. 

3. The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive and judi- 
cial Officers, both of the United States and of the several States, shall 
be bound by Oath or Affirmation, to support this Constitution ; but no 
religious test shall ever be required as a Qualification to any Office or 
public Trust under the United States. 

ARTICLE VII. 

The Ratification of the Conventions of nine States, shall be sufficient 
for the Establishment of this Constitution between the States so rati- 
fying the Same. 








F 

230 
G75 
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Grisby, Hugh Blair 

The history of the 
Virginia federal convention 
of 1788 



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