CHAPTER XIX

THE AFTER-FIGHT FOR AMENDMENTS

Thus, on the question of adopting the new Constitution, the fight was

over; but on the question of amending that Constitution, now that it

had been adopted, the fight, of course, was only just begun.

For how could this new Constitution be amended? A way was

provided,--but an extremely strait and narrow way. No amendment

whatsoever could become valid until it had been accepted by three

fourths of the States; and no amendment could be submitted to the

States for their consideration until it had first been approved,

either by two thirds of both houses of Congress, or else by a majority

of a convention specially called by Congress at the request of two

thirds of the States.

Clearly, the framers of the Constitution intended that the supreme law

of the land, when once agreed to, should have within it a principle of

fixedness almost invincible. At any rate, the process by which alone

alterations can be made, involves so wide an area of territory, so

many distinct groups of population, and is withal, in itself, so

manifold and complex, so slow, and so liable to entire stoppage, that

any proposition looking toward change must inevitably perish long

before reaching the far-away goal of final endorsement, unless that

proposition be really impelled by a public demand not only very

energetic and persistent, but well-nigh universal. Indeed, the

constitutional provision for amendments seemed, at that time, to many,

to be almost a constitutional prohibition of amendments.

It was, in part, for this very reason that Patrick Henry had urged

that those amendments of the Constitution which, in his opinion, were

absolutely necessary, should be secured before its adoption, and not

be left to the doubtful chance of their being obtained afterward, as

the result of a process ingeniously contrived, as it were, to prevent

their being obtained at all. But at the close of that June day on

which he and his seventy-eight associates walked away from the

convention wherein, on this very proposition, they had just been voted

down, how did the case stand? The Constitution, now become the supreme

law of the land, was a Constitution which, unless amended, would, as

they sincerely believed, effect the political ruin of the American

people. As good citizens, as good men, what was left for them to do?

They had fought hard to get the Constitution amended before adoption.

They had failed. They must now fight hard to get it amended after

adoption. Disastrous would it be, to assume that the needed amendments

would now be carried at any rate. True, the Virginia convention, like

the conventions of several other States, had voted to recommend

amendments. But the hostility to amendments, as Patrick Henry

believed, was too deeply rooted to yield to mere recommendations. The

necessary amendments would not find their way through all the hoppers

and tubes and valves of the enormous mill erected within the

Constitution, unless forced onward by popular agitation,--and by

popular agitation widespread, determined, vehement, even alarming. The

powerful enemies of amendments must be convinced that, until

amendments were carried through that mill, there would be no true

peace or content among the surrounding inhabitants.

This gives us the clew to the policy steadily and firmly pursued by

Patrick Henry as a party leader, from June, 1788, until after the

ratification of the first ten amendments, on the 15th of December,

1791. It was simply a strategic policy dictated by his honest view of

the situation; a bold, manly, patriotic policy; a policy, however,

which was greatly misunderstood, and grossly misrepresented, at the

time; a policy, too, which grieved the heart of Washington, and for

several years raised between him and his ancient friend the one cloud

of distrust that ever cast a shadow upon their intercourse.

In fact, at the very opening of the Virginia convention, and in view

of the possible defeat of his demand for amendments, Patrick Henry had

formed a clear outline of this policy, even to the extent of

organizing throughout the State local societies for stirring up, and

for keeping up, the needed agitation. All this is made evident by an

important letter written by him to General John Lamb of New York, and

dated at Richmond, June 9, 1788,--when the convention had been in

session just one week. In this letter, after some preliminary words,

he says:--

It is matter of great consolation to find that the

sentiments of a vast majority of Virginians are in unison

with those of our Northern friends. I am satisfied four

fifths of our inhabitants are opposed to the new scheme of

government. Indeed, in the part of this country lying south

of James River, I am confident, nine tenths are opposed to

it. And yet, strange as it may seem, the numbers in

convention appear equal on both sides: so that the majority,

which way soever it goes, will be small. The friends and

seekers of power have, with their usual subtilty, wriggled

themselves into the choice of the people, by assuming shapes

as various as the faces of the men they address on such

occasions.

If they shall carry their point, and preclude previous

amendments, which we have ready to offer, it will become

highly necessary to form the society you mention. Indeed, it

appears the only chance for securing a remnant of those

invaluable rights which are yielded by the new plan. Colonel

George Mason has agreed to act as chairman of our republican

society. His character I need not describe. He is every way

fit; and we have concluded to send you by Colonel Oswald a

copy of the Bill of Rights, and of the particular amendments

we intend to propose in our convention. The fate of them is

altogether uncertain; but of that you will be informed. To

assimilate our views on this great subject is of the last

moment; and our opponents expect much from our dissension.

As we see the danger, I think it is easily avoided.

I can assure you that North Carolina is more decidedly

opposed to the new government than Virginia. The people

there seem rife for hazarding all, before they submit.

Perhaps the organization of our system may be so contrived

as to include lesser associations dispersed throughout the

State. This will remedy in some degree the inconvenience

arising from our dispersed situation. Colonel Oswald's short

stay here prevents my saying as much on the subject as I

could otherwise have done. And after assuring you of my

ardent wishes for the happiness of our common country, and

the best interests of humanity, I beg leave to subscribe

myself, with great respect and regard,

Sir, your obedient, humble servant,

P. HENRY.[398]

On the 27th of June, within a few hours, very likely, after the final

adjournment of the convention, Madison hastened to report to

Washington the great and exhilarating result, but with this anxious

and really unjust surmise respecting the course then to be pursued by

Patrick Henry:--

"Mr. H----y declared, previous to the final question, that

although he should submit as a quiet citizen, he should

seize the first moment that offered for shaking off the yoke

in a constitutional way. I suspect the plan will be to

encourage two thirds of the legislatures in the task of

undoing the work; or to get a Congress appointed in the

first instance that will commit suicide on their own

authority."[399]

At the same sitting, probably, Madison sent off to Hamilton, at New

York, another report, in which his conjecture as to Patrick Henry's

intended policy is thus stated:--

"I am so uncharitable as to suspect that the ill-will to the

Constitution will produce every peaceable effort to disgrace

and destroy it. Mr. Henry declared ... that he should wait

with impatience for the favorable moment of regaining, in a

constitutional way, the lost liberties of his country."[400]

Two days afterward, by which time, doubtless, Madison's letter had

reached Mount Vernon, Washington wrote to Benjamin Lincoln of

Massachusetts, respecting the result of the convention:--

"Our accounts from Richmond are that ... the final decision

exhibited a solemn scene, and that there is every reason to

expect a perfect acquiescence therein by the minority. Mr.

Henry, the great leader of it, has signified that, though he

can never be reconciled to the Constitution in its present

form, and shall give it every constitutional opposition in

his power, yet he will submit to it peaceably."[401]

Thus, about the end of June, 1788, there came down upon the fierce

political strife in Virginia a lull, which lasted until the 20th of

October, at which time the legislature assembled for its autumnal

session. Meantime, however, the convention of New York had adopted the

Constitution, but after a most bitter fight, and by a majority of only

three votes, and only in consequence of the pledge that every possible

effort should be made to obtain speedily those great amendments that

were at last called for by a determined public demand. One of the

efforts contemplated by the New York convention took the form of a

circular letter to the governors of the several States, urging almost

pathetically that "effectual measures be immediately taken for calling

a convention" to propose those amendments which are necessary for

allaying "the apprehensions and discontents" then so prevalent.[402]

This circular letter "rekindled," as Madison then wrote to Jefferson,

"an ardor among the opponents of the federal Constitution for an

immediate revision of it by another general convention, ... Mr. Henry

and his friends in Virginia enter with great zeal into the

scheme."[403] In a letter written by Washington, nearly a month before

the meeting of the legislature, it is plainly indicated that his mind

was then grievously burdened by the anxieties of the situation, and

that he was disposed to put the very worst construction upon the

expected conduct of Patrick Henry and his party in the approaching

session:--

"Their expedient will now probably be an attempt to procure

the election of so many of their own junto under the new

government, as, by the introduction of local and

embarrassing disputes, to impede or frustrate its

operation.... I assure you I am under painful apprehensions

from the single circumstance of Mr. H. having the whole game

to play in the Assembly of this State; and the effect it may

have in others should be counteracted if possible."[404]

No sooner had the Assembly met, than Patrick Henry's ascendency became

apparent. His sway over that body was such that it was described as

"omnipotent." And by the time the session had been in progress not

quite a month, Washington informed Madison that "the accounts from

Richmond" were "very unpropitious to federal measures." "In one word,"

he added, "it is said that the edicts of Mr. H. are enregistered with

less opposition in the Virginia Assembly than those of the grand

monarch by his parliaments. He has only to say, Let this be law, and

it is law."[405] Within ten days from the opening of the session, the

House showed its sensitive response to Patrick Henry's leadership by

adopting a series of resolutions, the chief purpose of which was to

ask Congress to call immediately a national convention for proposing

to the States the required amendments. In the debate on the subject,

he is said to have declared "that he should oppose every measure

tending to the organization of the government, unless accompanied with

measures for the amendment of the Constitution."[406]

Some phrases in one of his resolutions were most offensive to those

members of the House who had "befriended the new Constitution," and

who, by implication at least, were held forth as "betrayers of the

dearest rights of the people." "If Mr. Henry pleases," so wrote a

correspondent of Washington, "he will carry the resolution in its

present terms, than which none, in my opinion, can be more

exceptionable or inflammatory; though, as he is sometimes kind and

condescending, he may perhaps be induced to alter it."[407]

In accordance with these resolutions, a formal application to Congress

for a national convention was prepared by Patrick Henry, and adopted

by the House on the 14th of November. Every word of that document

deserves now to be read, as his own account of the spirit and purpose

of a measure then and since then so profoundly and so cruelly

misinterpreted:--

"The good people of this commonwealth, in convention

assembled, having ratified the Constitution submitted to

their consideration, this legislature has, in conformity to

that act, and the resolutions of the United States in

Congress assembled to them transmitted, thought proper to

make the arrangements that were _necessary_ for carrying it

into effect. Having thus shown themselves obedient to the

voice of their constituents, all America will find that, so

far as it depends on them, that plan of government will be

carried into immediate operation.

"But the sense of the people of Virginia would be but in

part complied with, and but little regarded, if we went no

further. In the very moment of adoption, and coeval with the

ratification of the new plan of government, the general

voice of the convention of this State pointed to objects no

less interesting to the people we represent, and equally

entitled to your attention. At the same time that, from

motives of affection for our sister States, the convention

yielded their assent to the ratification, they gave the most

unequivocal proofs that they dreaded its operation under the

present form.

"In acceding to a government under this impression, painful

must have been the prospect, had they not derived

consolation from a full expectation of its imperfections

being speedily amended. In this resource, therefore, they

placed their confidence,--a confidence that will continue to

support them whilst they have reason to believe they have

not calculated upon it in vain.

"In making known to you the objections of the people of this

Commonwealth to the new plan of government, we deem it

unnecessary to enter into a particular detail of its

defects, which they consider as involving all the great and

unalienable rights of freemen: for their sense on this

subject, we refer you to the proceedings of their late

convention, and the sense of this General Assembly, as

expressed in their resolutions of the day of .

"We think proper, however, to declare that in our opinion,

as those objections were not founded in speculative theory,

but deduced from principles which have been established by

the melancholy example of other nations, in different ages,

so they will never be removed until the cause itself shall

cease to exist. The sooner, therefore, the public

apprehensions are quieted, and the government is possessed

of the confidence of the people, the more salutary will be

its operations, and the longer its duration.

"The cause of amendments we consider as a common cause; and

since concessions have been made from political motives,

which we conceive may endanger the republic, we trust that a

commendable zeal will be shown for obtaining those

provisions which, experience has taught us, are necessary to

secure from danger the unalienable rights of human nature.

"The anxiety with which our countrymen press for the

accomplishment of this important end, will ill admit of

delay. The slow forms of congressional discussion and

recommendation, if indeed they should ever agree to any

change, would, we fear, be less certain of success. Happily

for their wishes, the Constitution hath presented an

alternative, by admitting the submission to a convention of

the States. To this, therefore, we resort, as the source

from whence they are to derive relief from their present

apprehensions. We do, therefore, in behalf of our

constituents, in the most earnest and solemn manner, make

this application to Congress, that a convention be

immediately called, of deputies from the several States,

with full power to take into their consideration the defects

of this Constitution, that have been suggested by the state

conventions, and report such amendments thereto, as they

shall find best suited to promote our common interests, and

secure to ourselves and our latest posterity the great and

unalienable rights of mankind."[408]

Such was the purpose, such was the temper, of Virginia's appeal,

addressed to Congress, and written by Patrick Henry, on behalf of

immediate measures for curing the supposed defects of the

Constitution. Was it not likely that this appeal would be granted? One

grave doubt haunted the mind of Patrick Henry. If, in the elections

for senators and representatives then about to occur in the several

States, very great care was not taken, it might easily happen that a

majority of the members of Congress would be composed of men who would

obstruct, and perhaps entirely defeat, the desired amendments. With

the view of doing his part towards the prevention of such a result, he

determined that both the senators from Virginia, and as many as

possible of its representatives, should be persons who could be

trusted to help, and not to hinder, the great project.

Accordingly, when the day came for the election of senators by the

Assembly of Virginia, he just stood up in his place and named "Richard

Henry Lee and William Grayson, Esquires," as the two men who ought to

be elected as senators; and, furthermore, he named James Madison as

the one man who ought not to be elected as senator. Whereupon the vote

was taken; "and after some time," as the journal expresses it, the

committee to examine the ballot-boxes "returned into the House, and

reported that they had ... found a majority of votes in favor of

Richard Henry Lee and William Grayson, Esquires."[409] On the 8th of

December, 1788, just one month afterward, Madison himself, in a letter

to Jefferson, thus alluded to the incident: "They made me a candidate

for the Senate, for which I had not allotted my pretensions. The

attempt was defeated by Mr. Henry, who is omnipotent in the present

legislature, and who added to the expedients common on such occasions

a public philippic against my federal principles."[410]

Virginia's delegation in the Senate was thus made secure. How about

her delegation in the lower house? That, also, was an affair to be

sharply looked to. Above all things, James Madison, as the supposed

foe of amendments, was to be prevented, if possible, from winning an

election. Therefore the committee of the House of Delegates, which was

appointed for the very purpose, among other things, of dividing the

State into its ten congressional districts, so carved out those

districts as to promote the election of the friends of the good cause,

and especially to secure, as was hoped, the defeat of its great enemy.

Of this committee Patrick Henry was not a member; but as a majority of

its members were known to be his devoted followers, very naturally

upon him, at the time, was laid the burden of the blame for

practising this ignoble device in politics,--a device which, when

introduced into Massachusetts several years afterward, also by a

Revolutionary father, came to be christened with the satiric name of

"gerrymandering." Surely it was a rare bit of luck, in the case of

Patrick Henry, that the wits of Virginia did not anticipate the wits

of Massachusetts by describing this trick as "henrymandering;" and

that he thus narrowly escaped the ugly immortality of having his name

handed down from age to age in the coinage of a base word which should

designate a base thing,--one of the favorite, shabby manoeuvres of

less scrupulous American politicians.[411]

Thus, however, within four weeks from the opening of the session, he

had succeeded in pressing through the legislature, in the exact form

he wished, all these measures for giving effect to Virginia's demand

upon Congress for amendments. This being accomplished, he withdrew

from the service of the House for the remainder of the session,

probably on account of the great urgency of his professional

engagements at that time. The journal of the House affords us no trace

of his presence there after the 18th of November; and although the

legislature continued in session until the 13th of December, its

business did not digress beyond local topics. To all these facts,

rather bitter allusion is made in a letter to the governor of New

Hampshire, written from Mount Vernon, on the 31st of January, 1789, by

the private secretary of Washington, Tobias Lear, who thus reflected,

no doubt, the mood of his chief:--

"Mr. Henry, the leader of the opposition in this State,

finding himself beaten off the ground by fair argument in

the state convention, and outnumbered upon the important

question, collected his whole strength, and pointed his

whole force against the government, in the Assembly. He here

met with but a feeble opposition.... He led on his almost

unresisted phalanx, and planted the standard of hostility

upon the very battlements of federalism. In plain English,

he ruled a majority of the Assembly; and his edicts were

registered by that body with less opposition than those of

the Grand Monarque have met with from his parliaments. He

chose the two senators.... He divided the State into

districts, ... taking care to arrange matters so as to have

the county, of which Mr. Madison is an inhabitant, thrown

into a district of which a majority were supposed to be

unfriendly to the government, and by that means exclude him

from the representative body in Congress. He wrote the

answer to Governor Clinton's letter, and likewise the

circular letter to the executives of the several States....

And after he had settled everything relative to the

government wholly, I suppose, to his satisfaction, he

mounted his horse and rode home, leaving the little business

of the State to be done by anybody who chose to give

themselves the trouble of attending to it."[412]

How great was the effect of these strategic measures, forced by

Patrick Henry through the legislature of Virginia in the autumn of

1788, was not apparent, of course, until after the organization of the

first Congress of the United States, in the spring of 1789. Not until

the 5th of May could time be found by that body for paying the least

attention to the subject of amendments. On that day Theodoric Bland,

from Virginia, presented to the House of Representatives the solemn

application of his State for a new convention; and, after some

discussion, this document was entered on the journals of the

House.[413] The subject was then dropped until the 8th of June, when

Madison, who had been elected to Congress in spite of Patrick Henry,

and who had good reason to know how dangerous it would be for Congress

to trifle with the popular demand for amendments, succeeded, against

much opposition, in getting the House to devote that day to a

preliminary discussion of the business. It was again laid aside for

nearly six weeks, and again got a slight hearing on the 21st of July.

On the 13th of August it was once more brought to the reluctant

attention of the House, and then proved the occasion of a debate which

lasted until the 24th of that month, when the House finished its work

on the subject, and sent up to the Senate seventeen articles of

amendment. Only twelve of these articles succeeded in passing the

Senate; and of these twelve, only ten received from the States that

approval which was necessary to their ratification. This was obtained

on the 15th of December, 1791.

The course thus taken by Congress, in itself proposing amendments, was

not at the time pleasing to the chiefs of that party which, in the

several States, had been clamorous for amendments.[414] These men,

desiring more radical changes in the Constitution than could be expected

from Congress, had set their hearts on a new convention,--which,

undoubtedly, had it been called, would have reconstructed, from top to

bottom, the work done by the convention of 1787. Yet it should be

noticed that the ten amendments, thus obtained under the initiative of

Congress, embodied "nearly every material change suggested by

Virginia;"[415] and that it was distinctly due, in no small degree, to

the bitter and implacable urgency of the popular feeling in Virginia,

under the stimulus of Patrick Henry's leadership, that Congress was

induced by Madison to pay any attention to the subject. In the matter of

amendments, therefore, Patrick Henry and his party did not get all that

they demanded, nor in the way that they demanded; but even so much as

they did get, they would not then have got at all, had they not demanded

more, and demanded more, also, through the channel of a new convention,

the dread of which, it is evident, drove Madison and his brethren in

Congress into the prompt concession of amendments which they themselves

did not care for. Those amendments were really a tub to the whale; but

then that tub would not have been thrown overboard at all, had not the

whale been there, and very angry, and altogether too troublesome with

his foam-compelling tail, and with that huge head of his which could

batter as well as spout.

FOOTNOTES:

[398] Leake, _Life of Gen. John Lamb_, 307-308.

[399] Madison, _Letters_, etc. i. 402.

[400] _Works of Hamilton_, i. 463.

[401] _Writings of Washington_, ix. 392.

[402] Elliot, _Debates_, ii. 414.

[403] Madison, _Letters_, etc. i. 418.

[404] _Writings of Washington_, ix. 433.

[405] Bancroft, _Hist. Const._ ii. 483.

[406] _Corr. Rev._ iv. 240-241.

[407] _Ibid._ iv. 241.

[408] _Jour. Va. House Del._ 42-43.

[409] _Jour. Va. House Del._ 32.

[410] Madison, _Letters_, etc., i. 443-444.

[411] For contemporary allusions to this first example of

gerrymandering, see _Writings of Washington_, ix. 446-447; _Writings

of Jefferson_, ii. 574; Rives, _Life of Madison_, ii. 653-655;

Bancroft, _Hist. Const._ ii. 485.

[412] Bancroft, _Hist. Const._ ii. 488-489.

[413] Gales, _Debates_, i. 258-261.

[414] Marshall, _Life of Washington_, v. 209-210; Story, _Const._ i.

211.

[415] Howison, _Hist. Va._ ii. 333.

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