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. II > Part 27
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270 In the Discourse on the Convention of 1776, page 67, where a fuller account of Robert Carter Nicholas may be seen, I state erroneously that he died in his sixty-fifth year; but since the publication of that work I have received from one of the descendants of Nicholas a small slip of paper, being a copy of the original, which contains the date of his birth, and which was obtained by Nicholas himself from Robert Fry, the clerk of Bruton parish, on the 26th of December, 1777. The slip is endorsed by Nicholas, and has these words: "Robert Carter Nicholas, son of Dr. George and Elizabeth Nicholas, was born January 28, 1728." This paper had been laid away seventy years and more, when it was found by a fair correspondent of mine and transmitted to me. And I must confess here that I have received much valuable aid from the female descendants of my characters ; and their zeal in behalf of the memory of their ancestors gives me a livelier notion of what their grandmothers were than I had before I began this work.
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. It is said that clever men may be traced to their mothers; and, although in a physiological view the notion cannot be sustained, it is certain that George Nicholas is not an exception to the rule. His mother was Anne Cary, daughter of Colonel Wilson Cary, of "Richneck," and sister of Colonel Archibald Cary, who, as chairman of the Committee of the Whole, reported to the « Convention of 1776 the memorable resolution instructing the delegates of Virginia in Congress to propose independence, and who was the chairman of the select committee which reported the Declaration of Rights and the first Constitution of a free Commonwealth. She is said to have been of small stature, to the eye exceedingly fragile, but possessed of untiring energy. A correspondent, whose sources of information are unquestion- able, thus describes her: "Fully imbued with the spirit of the times in which she lived, she early instilled into her sons that republicanism and love of country which had distinguished their father; and, herself a woman of high cultivation, she beguiled the tedium of an almost constant confinement to her couch by awakening in them a thirst for knowledge and a love of reading, more necessary to be roused at a period when war had closed all the institutions of learning. Her labors were requited by the celebrity of four of her five sons. When the war broke out, in 1775, Mrs. Nicholas retired to the country, probably to avoid the excitement and the alarms of which the seat of government was the scene. Her place of retreat was a farm of her husband's in Hanover, called the 'Retreat,' where, in 1780, her husband died and was buried. Here she resided when Lord Cornwallis, crossing the James, fixed his headquarters in the immediate neighborhood of that estate. On the report of the enemy's approach, she concealed her plate and jewels in the chimney; but one of the children disclosing the place of deposit, Corn- wallis,271 who was present, entreated her with a smile not to feel any alarm on the score of her property-a subject which, how-
. 27] I record with pleasure the liberal conduct of Cornwallis on this occasion, but it is in strong contrast with his doings at other times in Virginia. And even here there is another version of the story, which renders it probable that the plate was carried off after, as is stated by Bishop Meade (Old Churches, &c., Vol. I, 185). where may also be found the capital advice addressed by Mrs. Nicholas to her son, Wilson Cary.
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ever engrossing at another time, then hardly occupied her thoughts, as she had just observed from her door a chase in which her son, John, thanks to the fleetness of his horse, had made his escape from the British dragoons. She had no reason to complain of the treatment received from Lord Cornwallis; but, being wholly unprotected, she moved to Albemarle, where her husband had purchased large estates on James river. She . lived to see her sons rise to distinction, and to address to one of them about to embark in public life some sage advice, which may well be heeded even at the present day."
Robert Carter Nicholas and Anne Cary had five sons-George, John, Wilson Cary, Lewis, and Philip Norborne; and two daugh - ters-Elizabeth, who married Edmund Randolph, and another who married John H. Norton, of Winchester. George Nicho- las, the subject of this sketch, was born in Williamsburg in or about the year 1755,272 attended the grammar school of William and Mary College, and in 1772 entered the college as a regular student, having for his associates James Innes, with whom he served in the army, in the Assembly, and in the present Con- vention; William Nelson, the future chancellor; St. George Tucker, the future commentator of Blackstone, and judge of the Court of Appeals; James Madison, the future bishop; Beverley Randolph, the future Governor; Samuel Jordan. Cabell, the future member of the present Convention and member of Con- gress; Benjamin Harrison, of "Brandon," and other young men who became conspicuous in after life. At the breaking out of the war he obtained a captain's commission, and conducted himself with credit at Hampton. He attained the rank of colonel in Bay-
272 All.the genealogies in my possession make George the oldest son; and if he was, he must have been born a year or so after the marriage of his parents, which took place in 1754; but in the catalogue of Wil- liam and Mary College, under the year 1766, there is a Robert Carter Nicholas, "son of the Treasurer." If this youth was the son of the Treasurer, he could only have been eleven or twelve in 1766, when in college. I make no doubt the error is in the catalogue, and that if there was such a person at that time he must have been the son of another man. It is hardly probable that the name and memory of such a youth, if he was the son of the Treasurer, should not appear in the family records. If, however, the youth was a son of the Trea- surer, he was the oldest son, and we must put the birth of George in 1756 or 1757.
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lor's regiment; and it was at a ball given to the American officers in Baltimore, in 1778, when he had reached the rank of colonel, that he saw for the first time Mary Smith, the lady who was to become his bride. She was the sister of General Samuel Smith, then a colonel, long distinguished as a member of the Senate of the United States, and of Robert Smith, who was successively Secretary of the Navy and of the State Department. Court- ships were rapid during the Revolution; and during the same year, in which he saw her for the first time, Mary Smith became the wife of Colonel Nicholas. Withdrawing from the army, he studied law and entered the Assembly.
During the session of 1781, at a time when the cavalry of the enemy were roving through the State and driving the Assembly before them, and when immense losses were suffered from hostile depredations, Nicholas, then a young man of five-and-twenty, and the representative of the county in which the Governor of Virginia resided, moved an inquiry into the conduct of that officer. It is easy to imagine the feelings of a gallant young patriot in beholding the whole Commonwealth at the mercy of a squad of dragoons, and it was his first impulse to move an inquiry into the conduct of the Executive. Such an investiga- tion might be right and proper, whatever may have been the innocence or guilt of the Governor. It was due to all parties that the facts of the case should be fully known; and it is certain that, if a becoming investigation had then been held, and the results committed to paper, we should have had a valuable con- tribution to our history. The inquiry was properly postponed to the following session, when Mr. Jefferson appeared in the House of Delegates as a member from Albemarle. On the day set apart for the investigation that gentleman rose in his place and avowed his readiness to answer any questions on the sub- ject. Nicholas was absent, but Mr. Jefferson read the objections received from Nicholas and his own answers. No further pro- ceedings followed, and both houses of Assembly adopted a resolution, in which they declare the high opinion which they entertained of Mr. Jefferson's ability, rectitude, and integrity as Chief Magistrate of the Commonwealth, and that they mean, by thus publicly avowing their opinion, to obviat: and remove all unmerited censure.
When Nicholas became convinced, upon mature deliberation,
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that his motion for an inquiry was founded on a misapprehen- sion of the true state of affairs, he made the amende honorable ; which was the more magnanimous, as it was already seen that the same intrepid spirit which impelled him to originate the inquiry was not to be swayed by fear or favor. 273
In the interval between the close of the war and the adoption of the Federal Constitution he was frequently a member of the House of Delegates, and by his skill in law and by his vigorous powers of debate exerted great influence in all its decisions. With the subject of the Western lands, most of the laws respect- ing which he aided in framing, he was most intimately acquainted; and when Kentucky became a State he removed to that country, and connected his destinies with the new Commonwealth.
He took up his residence in his new home about 1790, not leaving Virginia until the adoption of the Federal Constitution had been secured. It was in the present Convention, called to decide upon that instrument, that he displayed in the greatest perfection his wonderful ability in debate, and reared for himself the most durable monument of his fame. His general course in that body has been detailed with some minuteness. To say that it was distinguished would convey a faint impression of its efficiency. He was the Ulysses as well as the Ajax Telamon of the hosts which upheld the Constitution. Tongue and tact, as well as brawn and vigor, were his characteristics. Clear as was the logic, convincing as were the ample and apt illustrations of Madison, their effect was equalled, probably surpassed, by the exhibitions of Nicholas. His powerful voice, which could be heard with ease over the hall, and even at the head of a bat- talion (a rare quality in a close reasoner); his profound acquaint- ance with the intricate local legislation of the State, in which he had so large a share; his perfect knowledge of his opponents- of their plans and of their modes of thought and action-derived from long experience at the bar and in the Assembly; his famili- arity with law and with British political history, which enabled him to detect unerringly any incongruity in the arguments urged
273 For a masterly review of this subject, consult Randall's Life of Jefferson, Vol. I, 349, et seq. The eighth and ninth chapters of the first volume will richly repay the student of the Revolutionary history of Virginia.
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in debate; the advantages resulting from an intimate association with the people, whose manners, habits, and prejudices had been observed minutely by him ever since his entrance into public life; the wonderful readiness with which he marshalled his resources, and the utter fearlessness with which he ventured into the field of debate with his strongest adversaries-qualities in which he was not excelled by friend or enemy-fully justified the choice of his party in consigning to him the province of opening the grand discussion on the practical merits of the new Constitution. He bore the brunt of the battle, assisted, indeed, by eloquent and powerful colleagues, and by none more than by Madison, whose sphere, exalted as it was, was rather in a forum of philosophers than in a vast congregation of planters, whose passions and prejudices were to be cunningly soothed or dexterously assailed, not only by pure reasoning, but by strength of utterance, by vehement gesticulation, and even by personal daring.
Having thus given an outline of the life of Nicholas, I turn to particular parts of his career as detailed by a venerable man, who, having studied law in his office, and observed him critically in his public and private relations in Kentucky, undertook, in his eightieth year, when he had lost his sight and wrote by the hand of an amanuensis, to reduce his recollections to writing.214
After some prefatory remarks concerning the ancestry and birth of Nicholas, which have been treated more at large and more accurately already, our reminiscent continues:
"At the close of the war of the Revolution Colonel Nicholas removed to the village of Charlottesville, in Virginia, and com- menced the practice of the law in that place and in the surround- ing courts. He soon rose to a high eminence, and became the most distinguished lawyer wherever he practiced. He was par- ticularly successful and distinguished at the bar of Staunton, a place then at which much legal business concentrated, and where the celebrated Gabriel Jones resided, and had long been monarch at the bar. Jones soon became a great admirer of Nicholas and his talents, and threw his patronage upon him. He (Jones), having accumulated a large fortune by the practice, had deter-
274 Robert Wickliffe, Esq., of Kentucky, whose death is announced in the Richmond papers received while I was writing this memoran- dum-September 7, 1859.
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mined upon withdrawing from it altogether; and Colonel Gam- ble relates an anecdote that one of Jones's old clients and friends, having a suit depending of much interest, he directed his client to associate Nicholas with himself in the prosecution of it. In the argument of the case Nicholas displayed great ability, and the cause was gained; on which Jones's client asked Nicholas his charge, and was told he must pay him a guinea. Jones, meeting his client, asked him what he had paid Nicholas. He informed him, and Jones said, 'Go and give him two more.' The man accordingly went and told Colonel Nicholas what Jones had said; but the Colonel refused to take the two guineas, saying to the man, 'You have paid me my charge.' The man inform- ing Jones that Nicholas would accept no more, he told the man to deliver him the guineas, and that Nicholas should accept them. This anecdote not only illustrates the character of Nicho - las's mind, but also the principles on which he practiced in the early part of his career.
"When the reminiscent, a student of Nicholas's, a few months before his death, was about to return to his home to enter upon the practice of law, he waited upon Colonel Nicholas to take his leave, and found him in his office, alone. Nicholas, before he took his final leave, said to him: 'You are about to practice where you will find the courts often ignorant and incompetent. You will owe it to your own personal respect, as well as to your interest, to treat the judges with a deference and respect due to the judiciary of the land, and never to wound the feelings of a judge by intimating that he is incompetent from ignorance. With your clients be ever candid and sincere, and never, by exciting their fears or hopes, extort an additional farthing to your fee. Some lawyers, after bargaining for a fee, and getting their clients in their power, refuse or fail to do their duty until their fees are enlarged. Such conduct is base, as well as unlaw- ful. A lawyer should be reasonable in his charges and faithful in his duties, and no honorable gentleman of the profession will ever make the size of his fee dependant upon the ignorance or credulity of his client; in fine, he should consider himself the friend and the trustee of his client. Make no enemies, if you can help it, and do not depend with too much confidence on the professions of friendship for your success in life; but while friends may wish you well, and are certainly necessary to success
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in life, when it comes to a question whether a friend will give his business to a competent or incompetent lawyer, he will not be long in deciding to give it to a competent lawyer.'
"Colonel Nicholas, while he practiced law in Kentucky, was the most moderate lawyer in his charges and the most laborious in his duties to his clients. His regular fee in chancery was five pounds, Kentucky currency, and in a common-law case about three.
"About the year 1787 (1789 or 1790) Colonel Nicholas removed from Charlottesville to the county of Mercer, and set- tled on a farm near Danville, then the seat of justice of the Supreme Court for the district of Kentucky. He was no sooner settled than he was crowded with business, and considered decidedly the best lawyer in the county so long as he remained at the bar. His competitors at the Supreme Court for the dis- trict were of the best talents the country then afforded. When the district was turned into a State, and the Supreme Court was substituted by the Court of Appeals, in civil cases, and the court of Oyer and Terminer, in criminal cases, here Colonel Nicholas met not only the first men of the bar of Kentucky, but competi- tors equal to those of any bar in the United States. Among them were the late John Breckenridge, James Hughes, William Murray, Thomas Todd, James Brown, and Joseph Hamilton Daveiss. These men were not only distinguised for learning, but for their eloquence and highly honorable bearing as a bar. At the head of this bar was George Nicholas. All his brethren deferred to him; and the courts as well as the people at large listened and were instructed in the great displays which he often made in the important causes with which the Court of Appeals was crowded.
"Colonel Nicholas seems to have commenced his political life and services at the close of the Revolutionary War, always taking a decided and active part in the political questions that agitated his native State, as well as those that concerned the Confedera- tion of the States, and when he was always the advocate for a more strong and energetic government than the Confederation States had. So that when the present Constitution of the United States was submitted to a Convention of the people of Virginia for ratification, it found in him an able and active advocate. In defense and explanation of it he often addressed the people at
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large, before his election to the Convention. On the assembling of the Convention, though believed to be the youngest member elected,275 he took the lead in opening the debate in favor of the adoption of the Constitution. His speech upon the subject has been preserved among the debates of that distinguished body, and has ever been considered an able exposition and defence of the Federal Constitution.
"Shortly after the ratification of the Constitution in Virginia Colonel Nicholas, as before stated, removed to the district of Kentucky, where he found the district in a state of great excite- ment upon the subject of the separation of the district from Vir- ginia, and an election of a Convention to form a Constitution for the new State. He brought with him a great reputation, both as a lawyer and a statesman, which induced several of the lead- ing gentlemen of the district to apply to him to become a candi- date for the Convention about to be elected. He expressed his willingness to do so, but his doubts of the propriety of his becoming a candidate on account of his non-acquaintance with the people, and the weight of private and professional business that was pressing upon him. To this the applicants replied that he need not have any apprehension of his election, nor waste his time in becoming acquainted with the people before his elec- tion; that they would advocate his claims, and had no doubts of being able to secure his election. He was accordingly announced a candidate, and, instead of making a canvass, he devoted his time, from his becoming a candidate to the meeting of the Con- vention, in drafting a form of a Constitution for the proposed State. On his being elected and taking his seat he laid before the Convention his plan of a Constitution, which was finally adopted, and passed by the Convention with scarcely an altera- tion. While his draft was being discussed an incident arose in the Convention which serves in some measure to illustrate the character of Colonel Nicholas's mind. Some one of the Con- vention had the indelicacy to intimate to him that he was a stranger to the people, and had come in under the popularity and influence of others; upon which he arose, tendered his
275 There were many much younger. If born in 1755, he was thirty- three in 1788-the same age of John Marshall, and a year older than Legion Harry Lee.
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resignation, and went home. The Convention proceeded no longer with the Constitution, but ordered a new election in a few days. The people of the county in which he lived, spontane- ously and without any exertion of his own, re-elected him; and he again took his seat, and remained in the Convention until it not only adopted his Constitution as offered, but closed its entire business.
"The people of Kentucky were the first that applied to be separated from a mother State and become an independent State, and the Constitution drafted by Nicholas is believed to be the first Constitution formed for a new State. Happy would it have been for the people of Kentucky had they perpetuated its existence. It was a perfect Constitution in all its parts, entirely conservative, and the powers of government were well sustained by checks and balances, whereby one branch of the government was forbidden to trench upon the powers of either of the other branches. It was perfect in all its forms; its language clear and perspicuous; each line had its appropriate meaning, and each word in the line its appropriate place. So that the whole instru- ment manifested itself to be the work of an able and accom- plished statesman, well acquainted with the condition of the people who were to be governed by it. The Constitution lasted not quite nine years. Under it the people of Kentucky enjoyed law and liberty; no people ever obeyed their constitutional injunctions more faithfully, and under the laws of their land lived more happily; but in some evil hour, for some objections to minor parts in the Constitution, the people consented to go into a Convention to amend their Constitution. The Conven- tion assembled, but Nicholas was not there, but in his grave. His Constitution went into the hands of the new Convention, and did not come out of it until juvenile lawyers and unfledged politicians made sad work of its most valuable and conservative principles.
"During the continuance of the old Constitution, Kentucky knew nothing but thrift and prosperity, and, as far as a people could be under any form of government made, happy. During all which time Colonel Nicholas seemed to take but little part in the State government; but by his conversation and conduct indicated that he thought it was best to let well enough alone.
"About the year 1796 he retired from the practice, sold his
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farm in the county of Mercer, removed his family to the Iron- Works Company's property, of which company he was a mem- ber-hoping by a residence on the property to give a change to the administration of its affairs by the company, which were then in a bad condition. He remained there, however, little more than a year, when he took up his final residence in the town of Lexington. General Washington's administration had expired, and his successor, Mr. Adams, had put his administra- tion in hostile array against the Republic of France by calling into existence a standing army, passing alien and sedition laws, and, to sustain the extraordinary expenses of his administration, bringing to his aid stamp acts and direct taxation; and, to deter the friends of the Constitution and human liberty from resisting his tyrannical and unconstitutional measures, caused prosecu- tions against those who wrote or published what were deemed seditious libels, until the jails were not only filled with citizens, but some members of Congress. Early in the year 1797 George Nicholas took the field against these high-handed and tyrannical measures of the Federal Government. He not only spoke to the people and brought unto his aid the co-operation and much of the talent and worth of the country, but kept the few papers then published well supplied with his essays arraign- ing the conduct of the administration, and forewarning the peo- ple of the imminent danger in which their liberties were, and calling upon them to wake up to their danger.276
"These calls were not lost upon the people of Kentucky. Public meetings were held in the most prominent parts of the State, and by proper preambles and resolutions the measures of the administration were denounced as unconstitutional and tyrannical. These proceedings in Kentucky were justly ascribed by the administration to George Nicholas, and the administra- tion, it is said, contemplated having him arrested for sedition; but before proceeding to execute their designs President Adams sent the Hon. James Ross, then a member of the Senate of the United States, a confidential agent, to Kentucky to ascertain and find out the extent and nature of the opposition, who were its
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