When Virginia’s congressional delegation reported back to Henry regarding his plea for assistance, the news was not good. The northern states without large frontier areas were unwilling to help. “They with reluctance assent to relieving us from difficulties to which they are not themselves likely to be exposed to,” they wrote. Henry was “mortified” at this news. “I cannot be persuaded,” he told the delegation, “to think it necessary for me to endeavor to excite sympathy for that part of the union whose extermination seems to be attempted by an enemy thirsting for blood.” Did Congress intend to protect frontier settlers or not? Their dreadful disregard of the frontier had started rumors of secession from the Confederation government by the western settlers. Henry began to wonder whether he would eventually have to choose between the national Confederation government and Virginians in the West. With sectional issues already hampering Congress’s ability to act on Virginia’s behalf, what would an even stronger national government mean for Virginia, if the same northeastern interests retained their dominant power?47
In August 1786, Henry’s consternation regarding the national government reached new heights. John Jay, the secretary of foreign affairs, recommended that the United States give up the use of the Mississippi to Spain for twenty-five or thirty years, in exchange for trade privileges that would primarily profit the northern states. Jay, a wealthy New Yorker nine years younger than Henry, would soon become, along with Alexander Hamilton, one of his state’s key advocates for the new Constitution and, in 1789, the first chief justice of the United States. According to Jay, the Mississippi deal would confer short-term commercial benefits on the country, while allowing the possibility that American control of the river could be reestablished after several decades of Spanish control. Virginia’s delegates in Congress countered with a motion calling for perpetual American access to the Mississippi, but northern members defeated it. A northern majority gave Jay authority to negotiate away America’s access to the great river.48
Southerners were outraged. Virginia congressman James Monroe, an army veteran and lawyer who was becoming one of Henry’s chief allies, wrote the governor to say he felt Jay’s actions were not just misguided but dishonest. Congress had earlier instructed Jay not to put navigation rights up for negotiation, but Jay did so anyway and then convinced northern delegates to rescind the instructions forbidding such a deal. Monroe saw the affair as a plot against southern interests “pursued by a set of men so flagitious, unprincipled, and determined in their pursuits, as to satisfy me beyond a doubt they have extended their views to the dismemberment of the government.” Monroe believed that changes in the Confederation would be necessary to preserve the Union, but he doubted whether northern delegates possessed the requisite virtue and common sense to make those modifications.49
Convinced that giving up the Mississippi would be a disaster, Henry worked to generate resistance to Jay’s plan in Virginia and Kentucky. He wrote to his sister Anne, who lived in Kentucky; her husband, William Christian, had died in the Illinois country in a fight with Wabash Indians, which gave Henry’s fears about the turmoil in the West deep personal significance. “Congress are about to agree to give up the navigation of the Mississippi,” Henry told her. “I’ve exerted myself to prevent it.” He asked her to encourage their contacts in Kentucky to petition Congress against the treaty. Southern opposition finally did derail the treaty in the Confederation Congress, where a two-thirds majority was required to approve such agreements.50
Although Jay failed to negotiate away the Mississippi, he did major damage to the credibility of the Confederation government. In fact, the Mississippi controversy was one of the chief precipitants of the Constitutional Convention of 1787, with many Americans fearing that the Articles had to be reformed lest disunion result. By 1786, almost everyone realized that change was needed, but southerners were divided as to whether the conflict over Jay’s Mississippi treaty indicated a need for stronger national government or more power for the states.
James Madison wanted a stronger government but he feared that the Mississippi fracas could jeopardize that effort, particularly because of its effect on Henry and other southerners. Madison wrote to George Washington in December 1786, telling him, “I am entirely convinced from what I observe here, that unless the project of Congress can be reversed, the hopes of carrying this state into a proper federal system will be demolished. Many of our most federal leading men are extremely soured with what has already passed. Mr. Henry, who has been hitherto the champion of the federal cause, has become a cold advocate, and in the event of an actual sacrifice of the Mississippi by Congress, will unquestionably go over to the opposite side.”51
The Mississippi treaty turned Henry against the idea of a more formidable national government. He was always a defender of Virginia’s interests first, and his Christian republican assumptions also convinced him that large-scale consolidated power could not be trusted. He doubted that politicians from other sections of the country would act on behalf of the nation’s interests as a whole—a concern confirmed by Jay’s actions.
Before Henry’s opposition to the new Constitution became publicly known, he retired again from the governor’s office, explaining to his sister Anne that he and Dorothea were “heartily tired of the bustle we live in” at Richmond. The pressures of the governor’s office continued to clash with his financial and domestic imperatives. Dorothea had given birth to five children between 1778 and 1785, and Patrick needed to devote more time to his own business to support the family. Two of Henry’s older daughters, Anne and Elizabeth, got married in the fall of 1786, shortly before he stepped down as governor. He had to provide a dowry to each, in addition to the costs associated with the weddings. (His beloved Elizabeth, or Betsey, was married in October at St. John’s Church in Richmond, where Henry had delivered the “Liberty or Death” speech eleven years earlier.) The dread of financial debility tormented Henry. Nor did he take pleasure in the thought of a sixth term, as he found himself routinely fighting with a national government that seemed either indifferent or hostile to Virginia’s interests.52
Henry relocated his family to a new home in Prince Edward County, which was closer than his Leatherwood plantation, only eighty miles southwest of Richmond. There they would live in a modest wooden house for the next six years, while he tried to revive his legal practice and ventures in land speculation. The location put Henry at some distance from political affairs, but the separation was intentional. He needed some space away from the demands of government. Politics, he reminded himself, could never become his exclusive work.
Mail delivery was sometimes slow in remote Prince Edward County. When the new governor, Edmund Randolph, wrote Henry in December 1786 asking him to serve as a delegate to a recently summoned Constitutional Convention in 1787, Henry did not receive the letter for about two months. By that time, he had decided that he wanted nothing to do with James Madison’s scheme to transform the nation’s government.53
9
“I SMELT A RAT”
Defending the Revolution by Opposing the Constitution
MAJOR NORTHERN NEWSPAPERS published the news of Patrick Henry’s selection as a delegate to the Constitutional Convention even before he had received the request to serve. But when Henry finally got Edmund Randolph’s letter of invitation in February 1787, he politely declined the offer. Not only would attending the convention distract from his private affairs—the condition of which had driven him to leave the governor’s office—but he had also turned against the idea of substantially changing the form of the national government. One anecdote holds that when a pro-Constitution opponent demanded to know why Henry had not attended the convention, he replied, “I smelt a rat.”1
Henry scented that decaying rodent in the notion that the states should surrender more power to a new national government. John Marshall, the future chief justice of the Supreme Court, also believed that Henry would rather see the dissolution of the Confederation than surrender America’s rig
ht to the Mississippi as John Jay had attempted to do. Madison told Jefferson that Henry’s revulsion against the Mississippi treaty augured ill for any governmental change. “Mr. Henry’s disgust [regarding the Jay Treaty] exceeded all measure and I am not singular in ascribing his refusal to attend the convention to the policy of keeping himself free to combat or espouse the result of it according to the result of the Mississippi business.” Madison feared (correctly) that he and Henry were heading for a confrontation over the Constitution. Henry’s snub of the convention allowed him to subsequently position himself to oppose the constitutional changes. Madison told Washington that Henry’s action “proceeded from a wish to leave his conduct unfettered on another theatre where the result of the convention will receive its destiny from his omnipotence.” But Henry, like most Americans, also may not have seen how fundamentally Madison and Hamilton intended to change the Articles. They meant to abandon the Articles altogether.2
A MOVEMENT TO REVISE the Articles of Confederation had been growing ever since the government had struggled to provide for the Continental army during the war. Many Americans also were arguing that the national government needed power to regulate interstate and foreign commerce. Some of the new nation’s worst economic problems were the result of European trade barriers to American goods. Without a central authority to negotiate tariffs and other commercial policies, the states could only muddle along, futilely trying to get European countries to accept their exports on an equitable basis.
A major problem blocking the revision of the Articles lay within the document itself: it required unanimous approval by the states for amendments. One or two states had often stymied reforms that seemed sensible to the rest. In the mid-1780s, frustration over the Articles led younger political leaders such as James Madison and Alexander Hamilton to wonder whether more drastic action was required than simply proposing new laws and amendments that would be debated, diluted, and ultimately dismissed.
At Virginia’s behest, a multistate conference met in Annapolis in September 1786 to consider giving Congress the power to regulate commerce. The meeting made no progress on the issue, but the attendees recommended that the states elect delegates to another convention, to be held in Philadelphia in May 1787, which would “devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.” When Virginia’s legislature elected its delegates for the Constitutional Convention, Henry received the second-greatest number of votes after George Washington, with James Madison fifth in the balloting—an order reflecting Henry’s relative position in Virginia politics, one rivaled only by Washington. The delegation was mixed in its views of the need for stronger national government.3
Edmund Randolph’s letter of invitation made clear why legislators were asking Henry to participate, even though many recognized he was not inclined to afford the government major new powers. Randolph (Henry’s successor as governor) knew that Henry’s experience in leading the state had shown him how deeply dysfunctional the national government had become. Randolph also realized that the political crisis of the 1780s raised the prospect that a newly independent America might forget the lessons of the Revolution, chief among them the danger of centralized government. Americans needed the wisdom of “those who first kindled the Revolution,” Randolph wrote, who could be trusted to protect its legacy.4
But Henry remained home. Although delegates from many states made major contributions to the convention, Virginians took the lead, thanks in part to George Washington’s formidable and essential presence. Washington had retired from the army in 1783 with great flourish, styling himself as an American Cincinnatus, willingly surrendering military power to return to his beloved farm. “I meditate to pass the remainder of my life in a state of undisturbed repose,” he told his grateful countrymen. But once Washington became convinced that the new nation would not survive without major adjustments to the Articles of Confederation, he reluctantly agreed to reenter politics. Washington was simultaneously the most important delegate at the Constitutional Convention and the one least involved in the debates. His presence lent invaluable credibility to Madison and Hamilton’s audacious plans, especially when charges mounted during the ratification debates that the proceedings were illegitimate. Henry’s archenemy, Jefferson, was not at the convention; he remained in Paris as ambassador to France.5
The thirty-six-year-old Madison wielded the most influence over the details of the new document that began to emerge from the Philadelphia negotiations. He brought to the delegates a plan for a federal government that would be stronger than the Confederation, but that he claimed would respect individual and states’ rights. After intense debate and much compromise, Madison and the nationalists—who would become known as Federalists—succeeded in getting the convention to endorse a vigorous government to replace the Confederation. The new Congress would have the powers to tax and to regulate interstate commerce. The executive power, the president, would command the armed forces, appoint executive and judicial officers, and conduct diplomacy. The federal judiciary’s powers were less clear. But while the Confederation had no clearly defined executive or judicial authority, the new Constitution placed the executive and judicial powers in branches of the government separate from the legislative.
The Constitution also reduced the relative strength the states enjoyed under the Articles. Numerical majorities, not the states, would rule in the House of Representatives. No longer could states so easily stop new legislation. The states also lost much of their power to regulate interstate commerce. Moreover, ratifying the new Constitution only required nine states’ approval to go into effect in the states that had ratified, whereas the Confederation had required all thirteen even to agree on amendments.
Madison and the nationalists did concede on some of the most extreme aspects of the government’s political power. For example, Madison had to give up on the concept that the national government could veto state legislation. But overall, the polity hammered together by the delegates was much more like the British system (a national government with balanced powers and a strong executive) than the Articles were. Although it did not become widely known until years after the Constitution was adopted, the archnationalist Alexander Hamilton frankly stated at the convention that he thought the recently rejected British system of government—in which the Parliament and king reigned over local interests—was the ideal model for America.
Signs of opposition to this accrual of national authority appeared among Virginians, even at the convention. As the meetings ended, Virginia delegates George Mason and Edmund Randolph refused to sign the document. Mason had unsuccessfully sought to mandate a two-thirds majority on any navigation acts, which would have given southerners extra protection against northern economic interests. Shortly after the convention adjourned in September 1787, Mason published a list of reasons why he could not support the Constitution. He predicted that because of the simple majority required for navigation acts, the “five southern states (whose produce and circumstances are totally different from that of the eight northern and eastern states) will be ruined.” Mason also lamented the absence of a bill of rights, and the dangerous powers afforded to the Senate and president. He forecast that the new government would become either a monarchy or a “corrupt oppressive aristocracy.”6
Madison and Washington actually thought they might yet convince Henry to support the Constitution. Madison knew a lot was at stake. “Much will depend on Mr. Henry,” Madison wrote. As soon as Washington returned home, he began appealing to Henry and other possible opponents to support the Constitution, despite the defects they would identify in it. It is not entirely clear what Washington found deficient in the Constitution, because he intended to support it publicly and remained silent on its faults. Nevertheless, he sent a copy of the document to Henry, telling him that “your experience of the difficulties which have ever arisen when attempts have been made to reconcile such variety
of interests, and local prejudices as pervade the several states will render explanation unnecessary. I wish the Constitution which is offered had been made more perfect, but I sincerely believe it is the best that could be obtained at this time—and as a constitutional door is opened for amendment hereafter.”7
Henry was not convinced. He wrote back to Washington, saying, “I have to lament that I cannot bring my mind to accord with the proposed Constitution. The concern I feel on this account, is really greater than I am able to express. Perhaps mature reflection may furnish me reasons to change my present sentiments into a conformity with the opinion of those personages for whom I have the highest reverence.” Opposing Washington was not something Henry relished, but on this occasion he would make that choice.8
As with his opposition to disestablishment of the Anglican Church, some have found Henry’s hostility toward the Constitution perplexing. Americans’ devotion to their system of government is a doctrine of their civil spirituality. After its ratification, they would not typically question the essential value of the Constitution, much less condemn it in the harsh terms that Henry did. Yet in 1787 Henry was in good company as an anti-federalist, both within and outside of Virginia. Benjamin Harrison, a signer of the Declaration of Independence and former governor of Virginia, told Washington that although America had its problems, this constitutional “remedy will prove worse than the disease.” Like Mason, he feared that the Constitution would make the southern states forever subservient to the North.9
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