Posted on 01/20/2011 7:50:16 AM PST by Publius
Although Patrick Henry made some 24 speeches over the twenty day period of Virginia’s ratifying convention, his first two are considered the best summaries of the anti-Federalist arguments. This speech addresses his concerns as to whether the new Constitution is even necessary.
1 I have thought, and still think, that a full investigation of the actual situation of America ought to precede any decision of this great and important question.
2 That government is no more than a choice among evils is acknowledged by the most intelligent among mankind and has been a standing maxim for ages.
3 If it be demonstrated that the adoption of the new plan is a little or a trifling evil, then sir, I acknowledge that adoption ought to follow, but sir, if this be a truth, that its adoption may entail misery on the free people of this country, I then insist that rejection ought to follow.
4 Gentlemen strongly urge its adoption will be a mighty benefit to us, but sir, I am made of so incredulous materials that assertions and declarations do not satisfy me.
5 I must be convinced, sir.
6 I shall retain my infidelity on that subject till I see our liberties secured in a manner perfectly satisfactory to my understanding.
7 There are certain maxims by which every wise and enlightened people will regulate their conduct.
8 There are certain political maxims which no free people ought ever to abandon, maxims of which the observance is essential to the security of happiness.
9 It is impiously irritating the avenging hand of Heaven when a people, who are in the full enjoyment of freedom, launch out into the wide ocean of human affairs and desert those maxims which alone can preserve liberty.
10 Such maxims, humble as they are, are those only which can render a nation safe or formidable.
11 Poor little humble republican maxims have attracted the admiration and engaged the attention of the virtuous and wise in all nations, and have stood the shock of ages.
12 We do not now admit the validity of maxims which we once delighted in.
13 We have since adopted maxims of a different but more refined nature, new maxims which tend to the prostration of republicanism.
14 We have one, sir, that all men are by nature free and independent and have certain inherent rights, of which, when they enter into society, they cannot by any compact deprive or divest their posterity.
15 We have a set of maxims of the same spirit, which must be beloved by every friend to liberty, to virtue, to mankind: our Bill of Rights contains those admirable maxims.
16 Now sir, I say let us consider whether the picture given of American affairs ought to drive us from those beloved maxims.
17 The honorable gentleman, Governor Randolph, has said that it is too late in the day for us to reject this new plan.
18 That system which was once execrated by the honorable member must now be adopted, let its defects be ever so glaring.
19 That honorable member will not accuse me of want of candor when I cast in my mind what he has given the public and compare it to what has happened since.
20 It seems to me very strange and unaccountable that that which was the object of his execration should now receive his encomiums.
21 Something extraordinary must have operated so great a change in his opinion.
22 It is too late in the day!
23 Gentlemen must excuse me if they should declare, again and again, that it was too late, and I should think differently.
24 I never can believe, sir, that it is too late to save all that is precious; if it be proper and, independently of every external consideration, wisely constructed, let us receive it, but sir, shall its adoption by eight states induce us to receive it if it be replete with the most dangerous defects?
25 They urge that subsequent amendments are safer than previous amendments and that they will answer the same ends.
26 At present we have our liberties and privileges in our own hands.
27 Let us not relinquish them.
28 Let us not adopt this system till we see them secure.
29 There is some small possibility that, should we follow the conduct of Massachusetts, amendments might be obtained.
30 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?
31 The gentleman fears the loss of the Union.
32 If eight states have ratified it unamended and we should rashly imitate their precipitate example, do we not thereby disunite from several other states?
33 Shall those who have risked their lives for the sake of the Union be at once thrown out of it?
34 If it be amended, every state will accede to it, but by an imprudent adoption in its defective and dangerous state, a schism must inevitably be the consequence.
35 I can never, therefore, consent to hazard our most unalienable rights on an absolute uncertainty.
36 You are told 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 comforts in other parts of the world; laws insulted; many instances of tyrannical legislation.
37 These things, sir, are new to me.
38 He has made the discovery.
39 As to the administration of justice, I believe that failures in commerce, etc., cannot be attributed to it.
40 My age enables me to recollect its progress under the old government.
41 I can justify it by saying that it continues in the same manner in this state as it did under the former government.
42 As to other parts of the continent, I refer that to other gentlemen.
43 As to the ability of those who administer it, I believe they would not suffer by a comparison with those who administered it under the royal authority.
44 Where is the cause of complaint if the wealthy go away?
45 Is this, added to the other circumstances, of such enormity, and does it bring such danger over this commonwealth as to warrant so important and so awful a change in so precipitate a manner?
46 As to insults offered to the laws, I know of none.
47 In this respect, I believe this commonwealth would not suffer by a comparison with the former government.
48 The laws are as well executed and as patiently acquiesced in as they were under the royal administration.
49 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.
50 Is there a man in this commonwealth whose person can be insulted with impunity?
51 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 monarchs triumph and reign?
52 Is not the protection of property in full operation here?
53 The contrary cannot with truth be charged on this commonwealth.
54 Those severe charges which are exhibited against it appear to be totally groundless.
55 On a fair investigation, we shall be found to be surrounded by no real dangers.
56 We have the animating fortitude and persevering alacrity of republican men to carry us through misfortunes and calamities.
57 It is the fortune of a republic to be able to withstand the stormy ocean of human vicissitudes.
58 I know of no danger awaiting us.
59 Public and private security are to be found here in the highest degree.
60 Sir, it is the fortune of a free people not to be intimidated by imaginary dangers.
61 Fear is the passion of slaves.
62 Our political and natural hemisphere are now equally tranquil.
63 Let us recollect the awful magnitude of the subject of our deliberation; let us consider the latent consequences of an erroneous decision, and let not our minds be led away by unfair misrepresentations and un-candid suggestions.
64 There have been many instances of uncommon lenity and temperance used in the exercise of power in this commonwealth.
65 I could call your recollection to many that happened during the war and since, but every gentleman here must be apprized of them.
66 The honorable member has given you an elaborate account of what he judges tyrannical legislation and an ex post facto law, in the case of Josiah Philips.
67 He has misrepresented the facts.
68 That man was not executed by a tyrannical stroke of power.
69 Nor was he a Socrates.
70 He was a fugitive murderer and an outlaw, a man who commanded an infamous banditti and at a time when the war was at the most perilous stage.
71 He committed the most cruel and shocking barbarities.
72 He was an enemy to the human name.
73 Those who declare war against the human race may be struck out of existence as soon as they are apprehended.
74 He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases.
75 The enormity of his crimes did not entitle him to it.
76 I am truly a friend to legal forms and methods, but sir, the occasion warranted the measure.
77 A pirate, an outlaw, or a common enemy to all mankind may be put to death at any time.
78 It is justified by the laws of nature and nations.
79 The honorable member tells us, then, that there are burnings and discontents in the hearts of our citizens in general and that they are dissatisfied with their government.
80 I have no doubt the honorable member believes this to be the case, because he says so.
81 But I have the comfortable assurance that it is certain fact that it is not so.
82 The middle and lower ranks of people have not those illuminated ideas which the well born are so happily possessed of; they cannot so readily perceive latent objects.
83 The microscopic eyes of modern statesmen can see abundance of defects in old systems, and their illuminated imaginations discover the necessity of a change.
84 They are captivated by the parade of the number ten – the charms of the ten miles square.
85 Sir, I fear this change will ultimately lead to our ruin.
86 My fears are not the force of imagination; they are but too well founded.
87 I tremble for my country, but sir, I trust, I rely and I am confident that this political speculation has not taken so strong a hold of men’s minds as some would make us believe.
88 The dangers which may arise from our geographical situation will be more properly considered a while hence.
89 At present, what may be surmised on the subject, with respect to the adjacent states, is merely visionary.
90 Strength, sir, is a relative term.
91 When I reflect on the natural force of those nations that might be induced to attack us, and consider the difficulty of the attempt, and uncertainty of the success, and compare thereto the relative strength of our country, I say that we are strong.
92 We have no cause to fear from that quarter; we have nothing to dread from our neighboring states.
93 The superiority of our cause would give us an advantage over them, were they so unfriendly or rash as to attack us.
94 As to that part of the community which the honorable gentleman spoke of as being in danger of being separated from us, what excitement or inducement could its inhabitants have to wish such an event?
95 It is a matter of doubt whether they would derive any advantage to themselves or be any loss to us by such a separation.
96 Time has been, and may yet come, when they will find it their advantage and true interest to be united with us.
97 There is no danger of a dismemberment of our country unless a constitution be adopted which will enable the government to plant enemies on our backs.
98 By the Confederation, the rights of territory are secured.
99 No treaty can be made without the consent of nine states.
100 While the consent of nine states is necessary to the cession of territory, you are safe.
101 If it be put in the power of a less number, you will most infallibly lose the Mississippi.
102 As long as we can preserve our unalienable rights, we are in safety.
103 This new Constitution will involve in its operation the loss of the navigation of that valuable river.
104 The honorable gentleman cannot be ignorant of the Spanish transactions.
105 A treaty had been nearly entered into with Spain to relinquish that navigation.
106 That relinquishment would absolutely have taken place had the consent of seven states been sufficient.
107 The honorable gentleman told us then that, eight states having adopted the system, we cannot suppose they will recede on our account.
108 I know not what they may do, but this I know: that a people of infinitely less importance than those of Virginia stood the terror of war.
109 Vermont, sir, withstood the terror of thirteen states.
110 Maryland did not accede to the Confederation till the year 1781.
111 These two states, feeble as they are comparatively to us, were not afraid of the whole Union.
112 Did either of these states perish?
113 No sir, they were admitted freely into the Union.
114 Will not Virginia, then, be admitted?
115 I flatter myself that those states which have ratified the new plan of government will open their arms and cheerfully receive us, although we should propose certain amendments as the conditions on which we should ratify it.
116 During the late war, all the states were in pursuit of the same object.
117 To obtain that object, they made the most strenuous exertions.
118 They did not suffer trivial considerations to impede its acquisition.
119 Give me leave to say that if the smallest states in the Union were admitted into it after having unreasonably procrastinated their accession, the greatest and most mighty state in the Union will be easily admitted when her reluctance to an immediate accession to this system is founded on the most reasonable grounds.
120 When I call this the most mighty state in the Union, do I not speak the truth?
121 Does not Virginia surpass every state in the Union in number of inhabitants, extent of territory, felicity of position, and affluence and wealth?
122 Some infatuation hangs over men's minds that they will inconsiderately precipitate into measures the most important and give not a moment's deliberation to others, nor pay any respect to their opinions.
123 Is this federalism?
124 Are these the beloved effects of the federal spirit, that its votaries will never accede to the just propositions of others?
125 Sir, were there nothing objectionable in it but that, I would vote against it.
126 I desire to have nothing to do with such men as will obstinately refuse to change their opinions.
127 Are our opinions not to be regarded?
128 I hope that you will recollect that you are going to join with men who will pay no respect even to this state.
129 Switzerland consists of thirteen cantons expressly confederated for national defense.
130 They have stood the shock of four hundred years; that country has enjoyed internal tranquillity most of that long period.
131 Their dissensions have been, comparatively to those of other countries, very few.
132 What has passed in the neighboring countries?
133 War, dissensions and intrigues – Germany involved in the most deplorable civil war thirty years successively, continually convulsed with intestine divisions, and harassed by foreign wars!
134 France, with her mighty monarchy, perpetually at war.
135 Compare the peasants of Switzerland with those of any other mighty nation; you will find them far more happy, for one civil war among them, there have been five or six among other nations; their attachment to their country and freedom, their resolute intrepidity in their defense, the consequent security and happiness which they have enjoyed, and the respect and awe which these things produced in the bordering nations, have signalized those republicans.
136 Their valor, sir, has been active; everything that sets in motion the springs of the human heart engaged them to that protection of their inestimable privileges.
137 They have not only secured their own liberty, but have been the arbiters of the fate of other people.
138 Here sir, contemplate the triumph of the republican governments over the pride of monarchy.
139 I acknowledge, sir, that the necessity of national defense has prevailed in invigorating their councils and arms, and has been in a considerable degree the means of keeping these honest people together.
140 But sir, they have had wisdom enough to keep together and render themselves formidable.
141 Their heroism is proverbial.
142 They would heroically fight for their government and their laws.
143 One of the illumined sons of these times would not fight for those objects.
144 Those virtuous and simple people have not a mighty and splendid president, nor enormously expensive navies and armies to support.
145 No sir, those brave republicans have acquired their reputation no less by their undaunted intrepidity than by the wisdom of their frugal and economical policy.
146 Let us follow their example and be equally happy.
147 The honorable member advises us to adopt a measure which will destroy our Bill of Rights, for after having his picture of nations and his reasons for abandoning all the powers retained to the states by the Confederation, I am more firmly persuaded of the impropriety of adopting this new plan in its present shape.
148 I had doubts of the power of those who went to the Convention, but now we are possessed of it, let us examine it.
149 When we trusted the great object of revising the Confederation to the greatest and best and most enlightened of our citizens, we thought their deliberations would have been solely confined to that revision.
150 Instead of this, a new system, totally different in its nature, and vesting the most extensive powers in Congress, is presented.
151 Will the ten men you are to send to Congress be more worthy than those seven were?
152 If power grew so rapidly in their hands, what may it not do in the hands of others?
153 If those who go from this state will find power accompanied with temptation, our situation must be truly critical.
154 When about forming a government, if we mistake the principles or commit any other error, the very circumstance promises that power will be abused.
155 The greatest caution and circumspection are therefore necessary; nor does this proposed system, on its investigation here, deserve the least charity.
156 The honorable gentleman says that the national government is without energy.
157 I perfectly agree with him, and when he cries out Union, I agree with him, but I tell him not to mistake the end for the means.
158 The end is union; the most capital means, I suppose, are an army and navy.
159 On a supposition, I will acknowledge this: still the bare act of agreeing to that paper, though it may have an amazing influence, will not pay our millions.
160 There must be things to pay debts.
161 What these things are, or how they are to be produced, must be determined by our political wisdom and economy.
162 The honorable gentleman alleges that previous amendments will prevent the junction of our riches from producing great profits and emoluments, which would enable us to pay our public debts by excluding us from the Union.
163 I believe, sir, that a previous ratification of a system notoriously and confessedly defective will endanger our riches, our liberty, our all.
164 Its defects are acknowledged; they cannot be denied.
165 The reason offered by the honorable gentleman for adopting this defective system is its adoption by the eight states.
166 I say, sir, that, if we present nothing but what is reasonable in the shape of amendments, they will receive us.
167 Union is as necessary for them as for us.
168 Will they, then, be so unreasonable as not to join us?
169 If such be their disposition, I am happy to know it in time.
170 The honorable member then observed that nations will expend millions for commercial advantages; that is, that they will deprive you of every advantage if they can.
171 Apply this another way.
172 Their cheaper way, instead of laying out millions in making war upon you, will be to corrupt your senators.
173 I know that if they be not above all price, they may make a sacrifice of our commercial interests.
174 They may advise your President to make a treaty that will not only sacrifice all your commercial interests, but throw prostrate your Bill of Rights.
175 Does he fear that their ships will outnumber ours on the ocean, or that nations whose interest comes in contact with ours in the progress of their guilt will perpetrate the vilest expedients to exclude us from a participation in commercial advantages?
176 Does he advise us, in order to avoid this evil, to adopt a constitution which will enable such nations to obtain their ends by the more easy mode of contaminating the principles of our senators?
177 Sir, if our senators will not be corrupted, it will be because they will be good men, and not because the Constitution provides against corruption; for there is no real check secured in it, and the most abandoned and profligate acts may with impunity be committed by them.
178 With respect to Maryland, what danger from thence?
179 I know none.
180 I have not heard of any hostility premeditated or committed.
181 Nine-tenths of the people have not heard of it.
182 Those who are so happy as to be illumined have not informed their fellow citizens of it.
183 I am so valiant as to say that no danger can come from that source sufficient to make me abandon my republican principles.
184 The honorable gentleman ought to have recollected that there were no tyrants in America as there are in Europe.
185 The citizens of republican borders are only terrible to tyrants.
186 Instead of being dangerous to one another, they mutually support one another’s liberties.
187 We might be confederated with the adopting states without ratifying this system.
188 No form of government renders a people more formidable.
189 A confederacy of states joined together becomes strong as the United Netherlands.
190 The government of Holland, execrated as it is, proves that the present Confederation is adequate to every purpose of human association.
191 There are seven provinces confederated together for a long time, containing numerous opulent cities and many of the finest ports in the world.
192 The recollection of the situation of that country would make me execrate monarchy.
193 The singular felicity and success of that people are unparalleled; freedom has done miracles there in reclaiming land from the ocean.
194 It is the richest spot on the face of the globe.
195 Have they no men or money?
196 Have they no fleets or armies?
197 Have they no arts or sciences among them?
198 How did they repel the attacks of the greatest nations in the world?
199 How have they acquired their amazing influence and power?
200 Did they consolidate government to effect these purposes, as we do?
201 No sir, they have trampled over every obstacle and difficulty, and have arrived at the summit of political felicity and of uncommon opulence by means of a confederacy, that very government which gentlemen affect to despise.
202 They have, sir, avoided a consolidation as the greatest of evils.
203 They have lately, it is true, made one advance to that fatal progression.
204 This misfortune burst on them by iniquity and artifice.
205 That stadtholder, that executive magistrate, contrived it in conjunction with other European nations.
206 It was not the choice of the people.
207 Was it owing to his energy that this happened?
208 If two provinces have paid nothing, what have not the rest done?
209 And have not these two provinces made other exertions?
210 Ought they to avoid this inconvenience to have consolidated their different states and have a ten miles square?
211 Compare that little spot, nurtured by liberty, with the fairest country in the world.
212 Does not Holland possess a powerful navy and army, and a full treasury?
213 They did not acquire these by debasing the principles and trampling on the rights of their citizens.
214 Sir, they acquired these by their industry, economy, and by the freedom of their government.
215 Their commerce is the most extensive in Europe, their credit is unequaled, their felicity will be an eternal monument of the blessings of liberty; every nation in Europe is taught by them what they are, and what they ought to be.
216 The contrast between those nations and this happy people is the most splendid spectacle for republicans, the greatest cause of exultation and triumph to the sons of freedom.
217 While other nations, precipitated by the rage of ambition or folly, have in the pursuit of the most magnificent projects riveted the fetters of bondage on themselves and descendants, these republicans secured their political happiness and freedom.
218 Where is there a nation to be compared to them?
219 Where is there now, or where was there ever, a nation of so small a territory and so few in number, so powerful, so wealthy, so happy?
220 What is the cause of this superiority?
221 Liberty, sir, the freedom of their government.
222 Though they are now unhappily in some degree consolidated, yet they have my acclamations when put in contrast with those millions of their fellow men who lived and died like slaves.
223 The dangers of a consolidation ought to be guarded against in this country.
224 I shall exert my poor talents to ward them off.
225 Dangers are to be apprehended in whatever manner we proceed, but those of a consolidation are the most destructive.
226 Let us leave no expedient untried to secure happiness.
227 But whatever be our decision, I am consoled if American liberty will remain entire only for half a century, and I trust that mankind in general, and our posterity in particular, will be compensated for every anxiety we now feel.
228 Another gentleman tells us that no inconvenience will result from the exercise of the power of taxation by the general government, that two shillings out of ten may be saved by the impost, and that four shillings may be paid to the federal collector and four to the state collector.
229 A change of government will not pay money.
230 If, from the probable amount of the imposts, you take the enormous and extravagant expenses which will certainly attend the support of this great consolidated government, I believe you will find no reduction of the public burdens by this new system.
231 The splendid maintenance of the President and of the members of both Houses and the salaries and fees of the swarm of officers and dependants of the government will cost this continent immense sums.
232 Double sets of collectors will double the expenses; to those are to be added oppressive excisemen and custom-house officers.
233 Sir, the people have an hereditary hatred to customhouse officers.
234 The experience of the Mother Country leads me to detest them.
235 They have introduced their baneful influence into the administration and destroyed one of the most beautiful systems that ever the world saw.
236 Our forefathers enjoyed liberty there while that system was in its purity, but it is now contaminated by influence of every kind.
237 The style of the government – “We, the people” – was introduced perhaps to recommend it to the people at large, to those citizens who are to be leveled and degraded to the lowest degree, who are likened to a herd, and who by the operation of this blessed system are to be transformed from respectable, independent citizens to abject, dependent subjects or slaves.
238 The honorable gentleman has anticipated what we are to be reduced to, by degradingly assimilating our citizens to a herd.
239 I will exchange that abominable word for requisitions.
240 Requisitions, which gentlemen affect to despise, have nothing degrading in them.
241 On this depends our political prosperity.
242 I never will 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.
243 Requisitions are attended with one singular advantage.
244 They are attended by deliberation.
245 They secure to the states the benefit of correcting oppressive errors.
246 If our Assembly thought requisitions erroneous, if they thought the demand was too great, they might at least supplicate Congress to reconsider that it was a little too much.
247 The power of direct taxation was called by the honorable gentleman the soul of the government; another gentleman called it the lungs of the government.
248 We all agree that it is the most important part of the body politic.
249 If the power of raising money be necessary for the general government, it is no less so for the states.
250 If money be the vitals of Congress, is it not precious for those individuals from whom it is to be taken?
251 Must I give my soul, my lungs, to Congress?
252 Congress must have our souls; the state must have our souls.
253 This is dishonorable and disgraceful.
254 These two coordinate, interfering, unlimited powers of harassing the community are unexampled; it is unprecedented in history.
255 They are the visionary projects of modern politicians.
256 Tell me not of imaginary means, but of reality; this political solecism will never tend to the benefit of the community.
257 It will be as oppressive in practice as it is absurd in theory.
258 If you part from this, which the honorable gentleman tells you is the soul of Congress, you will be inevitably ruined.
259 I tell you they shall not have the soul of Virginia.
260 They tell us that one collector may collect the federal and state taxes.
261 The general government being paramount to the state legislatures, if the sheriff is to collect for both – his right hand for Congress, his left for the state – his right hand being paramount over the left, his collections will go to Congress.
262 We shall have the rest.
263 Deficiencies in collections will always operate against the states.
264 Congress, being the paramount, supreme power, must not be disappointed.
265 Thus Congress will have an unlimited, unbounded command over the soul of this commonwealth.
266 After satisfying their uncontrolled demands, what can be left for the states?
267 Not a sufficiency even to defray the expense of their internal administration.
268 They must therefore glide imperceptibly and gradually out of existence.
269 This, sir, must naturally terminate in a consolidation.
270 If this will do for other people, it never will do for me.
271 If we are to have one representative for every thirty thousand souls, it must be by implication.
272 The Constitution does not positively secure it.
273 Even say it is a natural implication, why not give us a right to that proportion in express terms in language that could not admit of evasions or subterfuges?
274 If they can use implication for us, they can also use implication against us.
275 We are giving power, they are getting power; judge then on which side the implication will be used!
276 When we once put it in their option to assume constructive power, danger will follow.
277 Trial by jury and liberty of the press are also on this foundation of implication.
278 If they encroach on these rights and you give your implication for a plea, you are cast, for they will be justified by the last part of it which gives them full power “to make all laws which shall be necessary and proper to carry their power into execution.”
279 Implication is dangerous because it is unbounded: if it be admitted at all and no limits be prescribed, it admits of the utmost extension.
280 They say that everything that is not given is retained.
281 The reverse of the proposition is true by implication.
282 They do not carry their implication so far when they speak of the general welfare, no implication when the sweeping clause comes.
283 Implication is only necessary when the existence of privileges is in dispute.
284 The existence of powers is sufficiently established.
285 If we trust our dearest rights to implication, we shall be in a very unhappy situation.
286 Implication, in England, has been a source of dissension.
287 There has been a war of implication between the King and people.
288 For a hundred years did the Mother Country struggle under the uncertainty of implication.
289 The people insisted that their rights were implied; the monarch denied the doctrine.
290 The Bill of Rights, in some degree, terminated the dispute.
291 By a bold implication, they said they had a right to bind us in all cases whatsoever.
292 This constructive power we opposed, and successfully.
293 Thirteen or fourteen years ago, the most important thing that could be thought of was to exclude the possibility of construction and implication.
294 These, sir, were then deemed perilous.
295 The first thing that was thought of was a bill of rights.
296 We were not satisfied with your constructive, argumentative rights.
Henry’s Critique
Two days after Henry’s initial blast, he insists on considerations broader than the clause-by-clause analysis for which most attendees assumed they were present. It is a change of scope sufficient to lay Henry open to certain charges he is about to lay upon his opponents who were delegates to the Philadelphia Convention, that of exceeding the scope of their responsibilities. Henry, the previous Governor of Virginia, will be taken to task for it by the sitting Governor, Edmund Randolph, who was a delegate to the Convention and now urges acceptance of a document he once opposed.
Randolph, second cousin to Thomas Jefferson and his successor as Secretary of State, was in a position to know Henry’s weaknesses, one of which would place Henry in a very difficult position for one whose theme was the rights of the citizen in the face of an oppressive government. For Henry, there is no ideal government, no engineered Platonic society under the benevolent guidance of a philosopher-king. Government is an artificiality and a threat to man’s natural liberty.
2 That government is no more than a choice among evils is acknowledged by the most intelligent among mankind…
6 I shall retain my infidelity on that subject till I see our liberties secured in a manner perfectly satisfactory to my understanding.
For Henry, liberty was threatened by a plan of government that disregarded “humble little republican maxims” for grand theory. The first of these was an echo of the words his friend Jefferson placed in the Declaration of Independence.
14 …that all men are by nature free and independent and have certain inherent rights, of which, when they enter into society, they cannot by any compact deprive or divest their posterity.
Edmund Burke would later amplify this point when he observed that in the matter of social contracts, it is only the first generation that is actually given a choice, their posterity committed by birth to a compact in which they had no direct part. Henry is stating boldly that there are certain rights that cannot be bargained away like that, and Virginia has provided a guard for them within its own constitution.
15 We have a set of maxims of the same spirit, which must be beloved by every friend to liberty, to virtue, to mankind: our Bill of Rights contains those admirable maxims.
He notes Governor Randolph’s statement at 17 that with eight of the required states having already ratified, it is “too late in the day” for Virginia to march off in its own direction. Nonsense, says Henry.
28 Let us not adopt this system till we see them [those liberties] secure.
29 There is some small possibility that, should we follow the conduct of Massachusetts, amendments might be obtained.
That was a reference to the ratification of Massachusetts which had been made contingent upon the addition of a bill of rights. Henry has suggested in his previous speech that this, or an outright rejection, would best guard the liberties he sees slipping away. Premature acceptance would also, he claims, threaten the Union he has pledged to preserve.
34 If it [the Constitution] be amended, every state will accede to it, but by an imprudent adoption in its defective and dangerous state, a schism must inevitably be the consequence.
He praises the current government of Virginia, comparing it favorably to its royal predecessor (47), and stating that it has placed its people in a state of tranquility that mocks the dire presentiment of danger put forth by the proponents of the Constitution. Repeating a point from his earlier speech, he claims that danger to be overstated. It is in part the realization that it was not overstated that later would lead Henry to support the Constitution.
The tangent Henry suddenly takes requires some explanation. It was his answer to the accusation on the part of Edmund Randolph that he was hypocritical to present himself as a champion of human rights when he had so recently acted against the very rights that were specifically mentioned in the Constitution. An incident from Henry’s past now came back to haunt him.
In 1777, during the early days of the Revolution, a Tory laborer named Josiah Philips and roughly fifty followers had terrorized large areas of Virginia, taking the revolutionary turbulence there as a cover for arson and robbery. Governor Patrick Henry had sent the militia to confront them, and the militia were routed. He then turned to an assemblyman named Thomas Jefferson to address the matter with a bill of attainder, that is, a legislative declaration of outlawry and a warrant for the execution of the named individual without trial by any who should be in a position to do so. Jefferson produced such a bill and the legislature passed it.
“It shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates.”
Even those who might share the misfortune of physical proximity were placed at hazard by this bill. It passed unanimously after a third reading. Jefferson would defend his part in the affair vigorously for the rest of his long life, as Henry defended it now.
66 The honorable member has given you an elaborate account of what he judges tyrannical legislation and an ex post facto law, in the case of Josiah Philips.
67 He has misrepresented the facts.
70 He was a fugitive murderer and an outlaw, a man who commanded an infamous banditti and at a time when the war was at the most perilous stage.
71 He committed the most cruel and shocking barbarities.
In fact, bills of attainder were still widely recognized as the legitimate recourse of government. Both Blackstone and Montesquieu approved of them. But they were obviously fraught with abuse, and the British government would pass its final one only a decade later, in 1798. This legal controversy would find its way into the Constitution, where Article I, Section 9, clause 3, reads: “No Bill of Attainder or ex post facto Law shall be passed.” The next clause extends that prohibition to state governments as well, one of the few cases of that in the Constitution as written. Clearly, by 1788 the verdict was against bills of attainder.
One official profoundly uncomfortable with bills of attainder was the Virginia Attorney General, none other than Edmund Randolph, Henry’s subordinate then, his Governor and opponent in debate now. When Philips was finally apprehended, Randolph saw to it that he was convicted in a formal trial before he was hanged in December 1777.
It was an ironic turn of affairs for Henry to be reminded of this now by the man who was so closely involved, and the charge of hypocrisy concerning his defense of liberty had clearly struck home. His answer was one of simple defiance.
73 Those who declare war against the human race may be struck out of existence as soon as they are apprehended.
74 He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases.
75 The enormity of his crimes did not entitle him to it.
It is, to be sure, an argument the modern civil libertarian would find exceedingly odd coming from the likes of Henry and Jefferson, now striving for a bill of rights that would protect the citizen against that very sort of abuse. The opposite rejoinder, “Yes, even such believers in human rights as we were hypocrites, and that should prove how very much a temptation for abuse this Constitution would be, absent a bill of rights” is a perfectly logical one but suffers from some obvious defects as a rhetorical point. Nor could a man as proud as Henry admit to such a thing in the first place, nor did he ever.
Henry returns to his theme: the Confederation government, as constituted, is sufficient, and the proponents of the Constitution are overstating their case. It, more so than the Constitution, provides a guard against disadvantageous treaties (99) by requiring the acquiescence of nine states and has successfully prevented an unwise agreement with Spain regarding navigational rights on the Mississippi (105). It permitted the participation of states such as Vermont and Maryland before they were formally members (109), so why the urgency Governor Randolph has suggested? Cannot Virginia bide her time, still participate and be admitted when the time is right? Certainly it is strong enough to do so (120, 121).
He lays out the case for an independent – for a time – Virginia, and for a confederation that is not the consolidated form of the Constitution, contrasting the peace and independence of confederated Switzerland with the horrors Germany experienced during the Thirty Years’ War (133) and France through most of her history.
146 Let us follow their [the Swiss] example and be equally happy.
Thus, he returns to the attack. If, as he has already suggested, the delegates to the Constitutional Convention exceeded their authority, how much more so will the Constitution itself lead the representatives governing under it to that same excess?
152 If power grew so rapidly in their hands, what may it not do in the hands of others?
He now shifts his attack to Randolph, agreeing with him that the existing government is without energy and that union is desirable (157), although not necessarily under the terms of the Constitution, denying his claim that “previous” amendments, i.e., those insisted upon previous to ratification, are hazardous for commercial reasons (162, 170), and suggesting that the real danger from foreign influence will not be warfare but corruption under a Constitution that inadequately guards against it (177).
Henry now shifts to the defensive in citing the model of the Netherlands, a government “execrated” of late (190), possibly a reference to Madison and Hamilton’s biting critique in Federalist #20. It is, he states, despite recent history, a republican government that has made its people rich and powerful, free and independent, if the recent betrayal of its first hereditary stadtholder, William V, Prince of Orange, be conceded an exception to the rule.
203 They have lately, it is true, made one advance to that fatal progression.
Contrast Madison and Hamilton’s treatment.
# 20-21 What are the characters which practice has stamped upon it [the government of the Netherlands]?
# 20-22 Imbecility in the government, discord among the provinces, foreign influence and indignities, a precarious existence in peace, and peculiar calamities from war.
The contrast between Henry’s nostalgia for a country that tore its freedom from the grasp of the Spanish Habsburgs, and Madison and Hamilton’s contempt for the contemporary government that had betrayed it, could not be more marked. Henry insists, however, that it is the fault of consolidation (223), a danger which he is warning against with respect to America.
223 The dangers of a consolidation ought to be guarded against in this country.
224 I shall exert my poor talents to ward them off.
It may be that if the new government does not, as many have suggested, eliminate the state governments, then worse things than that are in store. Each government will, Henry reminds the listener, have its own tax collectors.
231 The splendid maintenance of the President and of the members of both Houses and the salaries and fees of the swarm of officers and dependants of the government will cost this continent immense sums.
232 Double sets of collectors will double the expenses.
However, where there is any conflict in this demand, the federal government will win out over the states.
261 The general government being paramount to the state legislatures, if the sheriff is to collect for both – his right hand for Congress, his left for the state – his right hand being paramount over the left, his collections will go to Congress.
262 We shall have the rest.
The truth of these remarks is printed on every American’s income tax forms. There is, to be sure, the inadequacy of the government in the face of the financial situation into which refractory states have led it. Henry defends the requisition system that allowed it to happen.
243 Requisitions are attended with one singular advantage.
244 They are attended by deliberation.
245 They secure to the states the benefit of correcting oppressive errors.
This is the crux of Henry’s position. As a broad principle, the inadequacies of the Confederation government served to protect the liberty of its people, and in correcting those inadequacies, the Constitution served to threaten that liberty unless specifically constrained by means that were not yet a part of the Constitution, and without which the latter was likely to turn into an instrument of oppression.
Lastly, Henry addresses the argument of Hamilton and Madison that a government constructed by the Constitution will be unable to act outside its enumerated powers. It is absurd, says Henry, to depend on such an unstated principle, a mere implication, as a defense of liberty.
280 They say that everything that is not given is retained.
281 The reverse of the proposition is true…
284 The existence of powers is sufficiently established.
285 If we trust our dearest rights to implication, we shall be in a very unhappy situation.
Hence the need for a specific boundary to be established, to be specified, not implied, by a bill of rights. Implication was a route to instability, ambiguity an avenue for encroachment on liberty. Henry wants it spelled out because he does not trust the members of this new federal government, however benign in intention, not to crush necessary liberty for their own purposes, and, worst of all, when those purposes are ostensibly for the people’s good.
It is, in summation, a vigorous and brilliant speech, emphasizing the merits of the Confederation government that the participants of the Constitutional Convention were, in Henry’s estimation, overstepping their bounds to attempt to replace; muting or defending those aspects of it which justified that action in the view of the Constitution’s proponents; calling for Virginian independence and offering its own constitution as a model; and most of all scoffing at the notion that the Constitution contained, as written, sufficient protections against the expansion of the federal government, offering instead a bill of rights to carve the diaphanous promise of protection against abuse into solid stone.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
20 Mar 1788, Brutus #15
21 Mar 1788, Federalist #72
21 Mar 1788, Federalist #73
25 Mar 1788, Federalist #74
26 Mar 1788, Federalist #75
1 Apr 1788, Federalist #76
4 Apr 1788, Federalist #77
10 Apr 1788, Brutus #16
5 Jun 1788, Patrick Henry’s Speech to the New York Ratifying Convention #1
Let me first say that it is abundantly clear that Mr. Henry was one long winded dude!
Unfortunately, he was right.
"As for Henry’s criticisms, had Henry bothered to do his duty and attend the Philadelphia Constitutional convention, there is no telling what positive influence he could have had. It is quite possible if not probable the taxing power and Article III would be different.
IIRC, he was also offered and declined the seat of Chief Justice of the United States. If he truly wished to protect the liberty of the people, he missed a superb opportunity.
I agree with him!
The status of Virginia as a state within a union is one example. At one point you think Henry might even be for secession, at another for the union at maybe more cost than Virginia might desire, and eventually you find out it's actually neither but a bit of both. These are not contiguous sections of the speech. The listener of the day would have found that boring and single-minded.
By the standards of the period, this is a short speech. No kidding.
I know! I was just trying to start the thread off with a bit of levity. Not very good at that I suppose.
;-)
Patrick Henry bump. The Antifederalists were right.
Patrick Henry and Brutus combine to demolish the Constitution. The Bill of Rights was lipstick on a pig.
The honorable member then observed, that nations will expend millions for commercial advantages; that is, that they will deprive you of every advantage if they can. Apply this another way. Their cheaper way, instead of laying out millions in making war upon you, will be to corrupt your senators. I know that, if they be not above all price, they may make a sacrifice of our commercial interests. They may advise your President to make a treaty that will not only sacrifice all your commercial interests, but throw prostrate your bill of rights.
An excellent point and today we are mostly there. By reasonable calculations, we will be forced to default on our debt in five years when it reaches 100% of GDP. The President can then negotiate a treaty with our debtors (mostly China) and the Senate can ratify it. Who knows what it will require? Madison’s favorite chamber, the House, will have no say on it.
Compare the peasants of Switzerland . . . Their valor, sir, has been active; every thing that sets in motion the springs of the human heart engaged them to that protection of their inestimable privileges. They have not only secured their own liberty, but have been the arbiters of the fate of other people. Here, sir, contemplate the triumph of the republican governments over the pride of monarchy.
Another excellent point. I thought he was going to make it when I read his first address.
The citizens of republican borders are only terrible to tyrants. Instead of being dangerous to one another, they mutually support one another’s liberties. We might be confederated with the adopting states without ratifying this system. No form of government renders a people more formidable. A confederacy of states joined together becomes strong as the United Netherlands. The government of Holland, execrated as it is, proves that {146} the present Confederation is adequate to every purpose of human association.
Where is there now, or where was there ever, a nation of so small a territory, and so few in number, so powerful, so wealthy, so happy? What is the cause of this superiority? Liberty, sir, the freedom of their government.
Another excellent point. I remember many histories of prior governments being discussed at the Constitutional Convention. I will have to go back and read Madison’s note and compare them to what Patrick Henry is saying here.
They tell us that one collector may collect the federal and state taxes. The general government being paramount to the state legislatures, if the sheriff is to collect for both, —his right hand for Congress, his left for the state, —his right hand being paramount over the left, his collections will go to Congress. We shall have the rest. Deficiencies in collections will always operate against the states. Congress, being the paramount, supreme power, must not be disappointed. Thus Congress will have an unlimited, unbounded command over the soul of this commonwealth. After satisfying their uncontrolled demands, what can be left for the states? Not a sufficiency even to defray the expense of their internal administration. They must therefore glide imperceptibly and gradually out of existence. This, sir, must naturally terminate in a consolidation. If this will do for other people, it never will do for me.
Patrick Henry is taking names and kicking tail. He was right of course. The explanation from the Federalists that the National Government would have the final right to decided the boundary between the States and the National government was always weak, i.e. "Well in areas the states know better the National Government will choose to defer" to paraphrase.
Mr. Henry then declared a bill of rights indispensably necessary; that a general positive provision should be inserted in the new system, securing to the states and the people every right which was not conceded to the general government; and that every implication should be done away. It being now late, he concluded by observing, that he would resume the subject another time.
Necessary but insufficient and by adding a Bill of Rights it enabled the Judiciary to legislate further.
Henry’s Critique
Henry’s weaknesses, one of which would place Henry in a very difficult position for one whose theme was the rights of the citizen in the face of an oppressive government . For Henry, there is no ideal government, no engineered Platonic society under the benevolent guidance of a philosopher-king. Government is an artificiality and a threat to man’s natural liberty.
Well that the problem isn’t it? We can complain about our constitution all we want but "framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." One still has to wonder if this Constitution was necessary.
BTW, Publis – Thanks for the explanation of Josiah Philips. Google couldn’t find much on him without including too much information on Josiah Phillips Quincy. I gave up.
Discussion
Is there any way to address this without demolishing the modern state? Should the modern state be demolished, and why?
After I got done with my look at the financial numbers over the holidays, I’m sure this is a real and present question. The short answer is, I don’t know. When I look at my own personal options, the thought that I can’t pick up and move like my ancestors did, really bothers me. I once had a conversation with a cabbie while riding from an airport. He was telling me what he liked about America. I told him that the difference between most every other country and America was that first the people came then the government came. I don’t know if I can find a country. As Reagan said, "If we lose freedom here, there is no place to escape to. This is the last stand on Earth." Internally, we must regain the right to move away from oppressive or irresponsible governments without moving away from America.
Which of Henry’s cherished liberties would he now consider long gone?
The ability to avoid our government. The Commerce Clause, Elastic Clause, 14th and 16th Amendment have all been used against us. Mathematically this reminds me of an optimization problem with constraints. If one manipulates the constraints, it doesn’t matter what equation is being optimized.
Henry sees the Preamble to the Constitution as an invitation to consolidate the nation into a "common herd"
If he had the word "socialist" to use, he would have. If he had seen what sociologists do with statistics, he would have shot everyone considering a national government. "Let us assume that people’s characteristics are normally distributed….."
The solution would seem to be the reinvigoration of the states, but what would that do to national unity in a dangerous world?
The question was and is, can we provide for the common defense while allowing people to move away from an oppressive government? Well, we can die trying one way or the other.
Henry pushes for the existing system of federal requisitions from the states as opposed to direct taxation. Could the early system of the federal government dunning the states for their share of the federal budget by population be reinstated, and if so, how?
I’ve been thinking about that one lately. Tariffs were typically the way national governments collected taxes and Hamilton used the whiskey tax to incite rebellion and keep the rum tariff down. I don’t suppose there is a "good" way to tax that evil men can’t use.
Was his criticism of the Constitution on this point hypocritical?
Thinking about it in this one dimension, yes it is, but I his argument was that the super majority requirement of the Constitution was no guaranty against mistakes. Only a government so weak that it’s mistakes didn’t matter could be expected to fail in the oppression of its people.
Did the episode of Josiah Philips undermine Henry’s arguments in favor of civil rights? Jefferson’s?
With what little understanding I have of the situation, it seems obvious. We are all sinners and Henry’s sin was used by other sinners against him.
Publis, Did they consider a temporary constitution? One lasting long enough to pay off the war debts then to dissolve? I don’t remember ever reading it coming up.
What were the proposals short of this particular constitution? In know the Virginia plan, New Jersey plan, Connecticut compromise, etc. Were there others?
Decision in Philadelphia: The Constitutional Convention of 1787, by Christopher Collier and James Lincoln Collier
The Summer of 1787: The Men Who Invented the Constitution, by David Stewart
Do either/both of them go through the war of 1812?
281 The reverse of the proposition is true…
284 The existence of powers is sufficiently established.
285 If we trust our dearest rights to implication, we shall be in a very unhappy situation.
He was absolutely right, and even the 10th amendment does NOTHING to change it, because it only begs the question of what is or isn't given.
It is also a fact that EXPRESSLY delegated powers were shot down. This system was intentionally broad, whereas the old system was intentionally strict. They went from one extreme to the other, with Madison claiming to have found some "middle ground." Beware of those who claim the middle ground.
Henry's speech also underlines the fact that the proponents of the Constitution used typical political tactics to get it passed--they created a crisis atmosphere, they claimed we must pass THIS constitution or perish. Hell, Ben Franklin's famous speech at the end of the convention is nothing more than your typical "it's the best bill we could get" speech.
Now watch as Obamacare is ultimately decided by one judge--Justice Kennedy--and reflect on whether or not that represents a limited government, a free republic, a setup MOST able to preserve the blessings of LIBERTY.
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