USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. I > Part 12
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(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."
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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.14 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.
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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
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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 that 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."
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rule apportioning the number of representatives-" the number of representatives," the Constitution said, "shall not exceed one for every thirty thousand ;" now, 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
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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 English 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.
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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.
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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
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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 Euquirer 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 Cockburn's Life of Jeffery, I. 179.
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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-
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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 a 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.
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