The History of the Virginia Federal Convention of 1788
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- 2 Volume Two
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The number and character of the delegates selected for the service demonstrated the importance of the movement ; and Virginia, when she had confided her trust to George Washington, Patrick Henry, Edmund Randolph, John Blair, James Madison, George Mason, and George Wythe, calmly awaited the result of their labors."
The person of Wythe was more familiar to persons from abroad ; for, since the removal of the seat of government from Williamsburg, he had taken up his abode in town,38 and might be seen in his court or in his study, and not unfrequently of a bright frosty morning, in loose array, taking an air-bath in the porch of his humble residence on Shockoe Hill.
38Judge Wythe's residence stood at the southeast corner of Grace and Fifth streets, on the spot where stands the residence erected by the late Abraham Warwick, and now owned and occupied by Major Legh R. Page.
Pendleton, the President of the Court of Appeals, and Wythe, a chancellor and a member of the same court, who had been pitted against each other in the Senate and in the forum throughout their political lives, and were now to act in unison, were not the only representatives of the judiciary.
Harrison, Henry and Pendleton stood up in the Carpenters' Hall, when the eloquent Duch6, then firm in his country's cause, had invoked the guidance of Heaven in the deliberations of the first Congress ; while Grayson, Henry Lee of the Legion,. Madison, Monroe, Edmund Randolph, and Wythe, had been or were then in the councils of the Union.
A sounded opinion would be that, in ability and capacity for effective public service, the Convention of 1776 was surpassed by the Convention of 1788, which was in its turn surpassed by the Convention of 1829-30.46
46Thus in the Convention of 1776 there was a large number of the leading mem bers who voted, in 1765, on Henry's resolutions against the Stamp Act, such as Henry himself, Nicholas, Harrison, Pendleton, Wythe, Lewis, and others ; and in the present Convention there were members who had been in the House of Burgesses in 1765, as well as in the Conven tions of 1774, 1775, and 1776.
As an illustration of "the influence of character, it may be said that no four men excited more influence in favor of the Constitution in Virginia, than George Washington, Edmund Pendleton, George Wythe, and James Madison, and four purer names were probably never recorded in profane history ; yet to those who look into the secret motives that unconsciously impel the most candid minds on great occasions, which involve the destinies of posterity, it may be said that they were all men of wealth, or held office by a life tenure, and that, though married, neither of them ever had a child.
It was ultimately carried in a house of one hundred and seventy members by a majority of ten only, and five votes would have reversed the decision ; and it is certain that at least ten members voted, either in disobedience of the positive instructions of their constituents, or in defiance of their well-known opinions.48
48As an illustration of "the influence of character, it may be said that no four men excited more influence in favor of the Constitution in Virginia, than George Washington, Edmund Pendleton, George Wythe, and James Madison, and four purer names were probably never recorded in profane history ; yet to those who look into the secret motives that unconsciously impel the most candid minds on great occasions, which involve the destinies of posterity, it may be said that they were all men of wealth, or held office by a life tenure, and that, though married, neither of them ever had a child.
The Federalists well knew that when such men as Edmund Pendleton, George Wythe, John Blair, and Paul Carrington, all of whom were on the bench, appeared at the hustings, nobody would vote against them.
Neither the Journal of the Convention nor Robertson reports the name of the member who nominated Pendleton. I heard, from a gen tleman who was present at the time, that Judge Carrington made the motion ; but I am wholly at a loss for the name of the seconder, who, I suppose, was Wythe, from the fact that he was the only member likely to be brought out against Pendleton, and that Pendleton almost invariably called him to the chair in Committee of the Whole.
The nomination of Pendle ton was fixed upon beforehand, beyond doubt, and there can be as little doubt that Wythe was party to it.
Paul Carrington now rose, and in a short address nominated Edmund Pendleton as President.75
75Neither the Journal of the Convention nor Robertson reports the name of the member who nominated Pendleton. I heard, from a gen tleman who was present at the time, that Judge Carrington made the motion ; but I am wholly at a loss for the name of the seconder, who, I suppose, was Wythe, from the fact that he was the only member likely to be brought out against Pendleton, and that Pendleton almost invariably called him to the chair in Committee of the Whole.
But George Wythe was now known to approve the Constitution, and so far from opposing Pendleton would sustain him by his vote. Had Wythe been of the opposite party, the opponents of the Constitution would doubtless have ventured a contest. Nor is it certain that the contest would not have been successful. Wythe was, as a man, more popular than Pendleton ; many of the members had been his scholars, and loved him with an affection which neither time nor distrust could weaken ; and he would certainly have carried with him the votes of the smaller counties on tide, which had ever regarded him with warm attachment, and had long counted his fame among their most precious possessions.
It was a touching sight to behold him, his earlier and elder compeers long laid to rest, as, with his shrunken form upheld by crutches, he now passed between Carrington and Wythe to the chair.
When the Convention had elected the other officers of the body, had appointed a Committee of Privileges and Elections,80and had chosen a printer of its proceedings, it adjourned, on the motion of George Mason to the next day at eleven, then to meet in the New Academy on Shockoe Hill.
80The Committee of Privileges and Elections were so distinguished a body that I annex their names, with the remark that such an array of genius, talents, and public and private worth had not been seen before, nor has it been seen since, on such a committee in Virginia : Benjamin Harrison, George Mason, His Excellency Governor Randolph, Patrick Henry, George Nicholas, John Marshall, Paul Carrington, John Tyler, Alexander White, John Blair, Theodore Bland, William Grayson, Daniel Fisher, Thomas Mathews, John Jones, George Wythe, William Cabell, James Taylor of Caroline, Gabriel Jones, Francis Corbin, James Innes, James Monroe, Henry Lee, and Cuthbert Bullitt. The committee is appointed with great liberality, the friends of the Constitution having a majority of two only.
He was sixty-two years old, and had not been more than twelve years continuously in the public councils, 83 but from his entrance into public life he was confessedly the first man in every assembly of which he was a member, though rarely seen on the floor except on great occasions.
83Colonel Mason was a member of the House of Burgesses as early as 1758, with Pendleton and Wythe ; but did not adopt the favorite cus tom in the Colony of holding a seat for a series of years. Even during the past twelve vears he was not always a member.
When the House had received and acted upon the reports of the Committee of Elections, the order of the day was read, and the Convention went into Committee of the Whole. Wythe was called to the chair.8* Next to Pendleton, his fame as a jurist and a statesman had been more widely diffused at home and abroad than that of any other member. He had been longest in the public service ; had long been a member of the House of Burgesses, which he entered as early as 1758 ; had been the intimate and confidential friend of Fauquier and Botetourt, and the associate of all the royal governors of Virginia who in his time had any pretensions as gentlemen and scholars ; had spoken in the great debate on the Declaration of Independence in Congress ; had voted for the Declaration of Rights and the Constitution of Virginia ; had filled the chair of the House of Delegates, when Pendleton, suffering from his recent accident, was detained at home, and had acquired in the performance of his various duties that knowledge of the law of parliament and those habits of a presiding officer, which were now indispensable to an occupant of the chair. His position in one respect was unique. As a professor of William and Mary, he had trained some of the ablest members of the House, who regarded him with a veneration greater than that, great as it was, which was shared by the public at large.*0 He had reached his sixty-second year; yet as he moved with a brisk and graceful step from the floor to the chair, his small and erect stature presented a pleasing image of a fresh and healthy old man. In a front view, as he sate in the chair, he appeared to be bald ; but his gray hair grew thick behind, and instead of being wrapped with a ribbon, as was then and many years later the universal custom, descended to his neck, and rose in a broad curl He had not yet given way to that disarrangement of his apparel which crept upon him in extreme age, and was arrayed in the neat and simple dress that has come down to us in the portrait engraved by Longacre." Though never robust, he was now more able to bear, in a physical sense, the formidable ordeal of the chair than Pendleton. He had been a member of the General Convention which framed the Constitution, and had assented to the Virginia platform presented to that body ; but, as he was absent when that instrument was subscribed by the members, his name did not appear on its roll. He was, however, in favor of its ratification.
When Wythe had taken his seat, before he had ordered the clerk to read the first clause of the Constitution, Henry was on the floor.
As a professor of William and Mary, he had trained some of the ablest members of the House, who regarded him with a veneration greater than that, great as it was, which was shared by the public at large.90
90Among the numerous pupils of Wythe in the Convention were Chief Justice Marshall, President Monroe, George and Wilson Cary Nicholas, Read, Innes, Lewis, Samuel Jordan Cabell, &c.
The nomination of Pendle ton was fixed upon beforehand, beyond doubt, and there can be as little doubt that Wythe was party to it. In the Convention of 1829-30 it was arranged with the privity of Madison, and doubtless at his sug gestion, that Mr. Monroe should be made president of the body, and he was so nominated by Mr. Madison himself; but the ablest members of the Convention were not aware of the design ; and when Mr. Madi son made the nomination, those who sate near John Randolph and observed his countenance, say that he was on the eve of rising to op pose it, not so much from hostility to Mr. Monroe as from a belief that the honor of the presidency should first be conferred on Madison. pg. 64 footnote 75 His address, which had been polished by long and intimate asso ciation in the most refined circles of the Colony, to which by birth he belonged, and of the Commonwealth ; his minute ac quaintance with every topic of local legislation ; his ready com mand of that historical knowledge within the range of a welleducated lawyer of the old regime ; perfect self-possession, which had been acquired in many a contest at the bar and in the House of Delegates with most of the able men now opposed to him, and which enabled him to wield at will a robust logic in debate which few cared to encounter, made him one of the most prom ising of that group of rising statesmen who had caught their inspiration from the lips of Wythe.
After a graceful allusion to the philosophy of the passions which were apt to rage most fiercely on those occasions which required the calmest deliberation, but excepting the members of the Convention from such an influence, he continued : " Pardon me, sir, if I am particularly sanguine in my expectations from the chair ; it well knows what is order, how to command obedience108 and that political opinions may be as honest on one side as the other. Before I pass into the body of the argument, I must take the liberty of mentioning the part I have already borne in this great question ; but let me not here be misunderstood.
108This very pointed intimation to Wythe to keep the discussion from wandering from the sections under debate, shows very plainly the pro gramme of the Federalists. If such was their policy in committee of the whole, we can well judge what they designed it to be in the House.
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.
Some business appertaining to con tested elections was soon despatched ; and Pendleton, having called Wythe to the chair, was helped to a seat in the body of the house. It is said that some of the oldest members,111 as they looked at the feeble old man on his pg. 101 feet, and at his ancient compeer Wythe leaning forward in the chair to catch the tones of a voice which for the past thirty years he had heard with various emotions, were affected to tears.
111The election of Pendleton instead of Wythe, who was the more popular of the two, is reflected in the election of Monroe instead of Madison, who was universally fixed upon both in and out of the Convention as its presiding officer, and who alone could have defeated his election, which he did by instantly rising when the body was called to order and nominating Mr. Monroe.
When the President called the Convention to order, a debate arose on the returns of an election case, which was soon dis patched, and the House resolved itself into committee—Wythe in the chair.
On the following day (Saturday, the seventh of June), as soon as some election details were disposed of, Wythe was called to the chair of the committee, the first and second sections of the Constitution still under consideration.
Wythe had just taken the chair, when Henry rose to conclude his unfinished speech of Saturday.
The honorable gentlemen there145 can say that when I went thither, no man was a stronger friend to such an union than myself.
145Meaning Mason, Wythe, Madison and John Blair, his colleagues in the general Federal Convention, and also members of the present Convention.
On Wednesday, the eleventh of June, the first and second sec tions still nominally the order of the day, and Wythe in the chair, Madison took the floor and discussed the subject of direct taxation in all its bearings, replying by the way to the argu ments of Henry against the expediency of vesting that power in the Constitution, and delivered the most elaborate speech of his whole life.
On Thursday, the twelfth of June, as soon as the House went into committee, Wythe in the chair, and the first and sec ond sections of the Constitution still nominally the order of the day, Grayson resumed his speech.
As soon as Grayson took his seat, Pendleton, who, when the House was in committee, always sat near the chair, caught the eye of Wythe, and, placed upon his crutches, proceeded to deliver the most elaborate of all the speeches which he made upon the floor.
Wythe took the chair, and, on motion, the acts and resolutions of the Assembly relative to the Mississippi were read.
He was one of that brilliant group of soldier- statesmen who had caught their inspiration and their love of country from the lips of Wythe.
On taking his seat a motion was made to go into committee, and his first act was to call Wythe to the chair.""
He had been so long a member of the public councils that even Wythe and Pendleton could not easily recall the time when he had not been a member of the House of Burgesses. pg. 183 On Monday, the sixteenth day of June, Pendleton appeared and resumed the chair. The House went into committee, Wythe in the chair, the eighth section of the first article still under con sideration.
As soon as the House went into committee, Wythe in the chair, the first clause of the ninth sec tion of the first article was read.
On Friday, the twentieth of June, the House went into com mittee, Wythe in the chair, and the first and second sections of the third article still under consideration. pg. 290
On Wednesday, the eighteenth of June, the House went into committee, Wythe in the chair, the first section of the second article still under consideration. pg. 268 On Wednesday, the eighteenth of June, the House went into committee, Wythe in the chair, and the second clause of the second section of the second article still under consideration.
On Saturday, the twenty-first of June, the House resolved itself into a committee, Wythe in the chair, the first and second sections of the third articles still under consideration.
The same policy which had in duced the friends of the Constitution to select Pendleton to open the debate on the judiciary, impelled them to select Wythe as the proper person to bring forward the resolution of ratification.
Wythe instantly rose to address pg. 306 the chair. There was need of haste; for Henry had prepared a series of amendments which he desired the House to adopt, and thus postpone the final vote on the Constitution for an in definite period. He looked pale and fatigued ; and so great was his agitation that he had uttered several sentences before he was distinctly heard by those who sat near him. When he was heard, he was recapitulating the history of the Colonies previous to the war, their resistance to the oppressions of Great Britain, and the glorious conclusion of that arduous conflict. To perpetuate the blessings of freedom, he contended that the union of the States should be indissoluble. He expatiated on the defects of the Confederation. He pointed out the impossibility of securing liberty without society, the impracticability of acting personally, and the inevitable necessity of delegating power to agents. He recurred to the system under consideration. He admitted its imperfection, and the propriety of some amendments. But, he said, it had virtues which could not be denied by its opponents. He thought that experience was the best guide, and that most of the improvements that had been made in the science of govern ment, were the result of experience. He appealed to the advo cates for amendments to say whether, if they were indulged with any alterations they pleased, there might not be still a necessity of alteration ? He then proceeded to the consideration of the question of previous or subsequent amendments. He argued that, from the dangers of the crisis; it would be safer to adopt the Constitution as it is, and that it would be easy to obtain all needful amendments afterwards. He then proposed a form of ratification, which was handed to the clerk and read to the committee."5 Well might Wythe evince unusual emotion in presenting his scheme.
forestalled by Wythe in offering his own scheme, which had been prepared with great care, to the committee, or was moved by the terms of Wythe's proposition, or was influenced by the sense of the imminent danger of losing the great battle which he had been waging in behalf of what he deemed the common liberty, there was something in his manner and in the subdued tones of his voice that foretold a fearful explosion.
He dissented from the scheme of Wythe, because it admitted that the new system was capitally defective; for immediately after the pro posed ratification comes the declaration that the paper before you is not intended to violate any of the three great rights —liberty of the press, liberty of religion, and the trial by jury.
He then discanted on the omission of general warrants, so fatal in a vast country where no judge within a thousand miles can be found to issue a writ of habeas corpus, and where an innocent man might rot in jail before he could be delivered by process of law ; the dangers of standing armies in times of peace, and ten or eleven other things equally important, all of which are omitted in the scheme of Wythe.
With respect to that part of Wythe's proposal which states that every power not granted remains with the people, it must be previous to adoption, or it will involve this country in inevitable destruction.
When Randolph closed his eloquent and patriotic invocation to the members, he considered the scheme proposed by Wythe, and showed by a minute examination of its words that it secured all other rights as well as the liberty of speech, and of the press, and trial by jury. pg. 312 He discussed the scheme of ratification proposed by Wythe, and urged that it was not only not liable to the objections offered by Henry, but was fully adequate to secure all the great rights supposed to be imperiled by the Constitution.
Such an enumeration could not be made within any compass of time as would be equal to a general negation such as was pro posed in the form presented by Wythe.
He declared his own wish for amendments ; thought the amendments secured in the form proposed by Wythe were satisfactory, but was willing to agree to others which would not destroy the spirit of the Constitution.
He moved that the clerk read the form of ratifi cation proposed by Wythe, that the question might be put upon it.
Of that brilliant group of soldier-statesmen, who drew their inspiration from the counsels of Wythe, and whose virtues shed renown not only on Virginia, but on the Union at large, none more eminently merits the grateful and affectionate regard of succeeding times than James Innes.
Born in Caroline, the residence of Pendleton, and the pupil of Wythe, he possessed the confidence of those illustrious men, who watched with affectionate attachment the development of his genius, who witnessed his finest displays, and who, in their ex treme old age, deplored his untimely death.
We know that the most distinguished living Virginian, who had heard both speakers, has pronounced Innes the most classical, the most elegant, and the most eloquent orator to whom he ever listened.248
248Innes, sir, was no lawyer (that is, he was not as profound a lawyer as Wythe, or Pendleton, or Thom son Mason, who were eminent when Innes was born) ; but he was the most elegant belles-lettres scholar and the most eloquent orator I ever heard." It must be remembered that Innes, at the time of his death, in 1798, had not completed his forty-fourth year, and that Wythe and Pendleton attained to nearly double his years. pg. 326 footnote 248
A committee was also appointed " to prepare and report such amendments as shall by them be deemed necessary to be recommended in pursuance of the second resolution," and consisted of Wythe, Harrison, Mathews, Henry, Randolph, George Mason, Nicholas, Grayson, Madison, Tyler, Marshall, Monroe, Ronald, Bland, Meriwether Smith, Paul Carrington, Innes, Hopkins, John Blair, and Simms.
"We, the sa1d Delegates, in the name and in behalf of the People of Virginia, do, by these presents, assent to, and ratify the Constitution, recommended on the seventeenth day of September, one thousand seven hundred and eighty-seven, by the Federal Convention for the government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words-following:" 267
267The form of ratification has been usually attributed to the pen of Madison; but I am compelled to give up this opinion, which was common thirty years ago.It is but an enlargement of the preamble offered by Wythe, and doubtless from internal evidence written by him. That preamble is not such as in my opinion Madison or Randolph would have drawn, and is very properly amended in a vital part in the form of ratification. As Randolph was chairman of the committee which reported the form, and was a critical writer, and as the form was mainly an enlargement of the preamble presented by Wythe, the safer conjecture is that its merit belongs jointly to Randolph and Wythe. pg. 348 footnote 267
It was then ordered that the form should be deposited in the archives of the General Assembly. Wythe now rose and presented the amendments proposed by the select committee to be made to the Constitution in the mode prescribed by that instrument.
What Wythe had been to Jefferson, Jefferson became to young Stuart: the adviser, the friend, and the revered associate through life.
He determined to study law, and attended, about 1772, a course of lectures under Wythe, at William and Mary.
It will be remembered that, during the session of the Assembly in 1776, a Committee of Revisors had been appointed, consisting of Thomas Jefferson, Edmund Pen dleton, George Wythe, George Mason, and Thomas Ludwell Lee. These gentlemen met in Fredericksburg on the 13th of January, 1777, and divided the task among themselves.1* In February, 1779, they reassembled in Williamsburg, read and commented on the parts of each, ordered a fair copy to be made of the whole, and deputed two of their number to present their joint work to the Assembly. It was accordingly presented in the shape of one hundred and twenty-six bills. Thus was accomplished the most laborious, the most responsible, and the most delicate undertaking which had then been assigned to three men, and which, if* it stood apart from the great deeds of an extraordinary epoch, would make an epoch of its own.1"
At this meeting all the revisors attended, when George Mason and Lee resigned, but not until some most important principles were set tled, and the parts were assigned to Jefferson, Pendleton, and Wythe.Professor Tucker says (Life of Jefferson, Vol. I, 104, note) that he learned from Mr. Madison that Lee and Pendleton were in favor of codification, Wythe and Jefferson against it, and that Mason gave the casting vote. I use the word reviser because it is the word of the bill. In modern times it is written with an e. It is from the mint of Jeffer son, and is nearer the original. I may add that the pay of the revisors, as proposed in the House of Delegates in 1785, was three hundred pounds apiece, or one thousand dollars of our present currency. What a theme for the artist, that gathering of the revisors in an attic in Fredericksburg !pg 134 footnote 134
It is due to Jefferson and Wythe to say that Mr. Pendleton, not having embraced exactly the views of his colleagues, " copied the British acts verbatim, merely omitting what was disapproved ; and some family occurrence calling him home, he desired Mr. Wythe and myself (Jefferson) to make it what we thought it ought to be, and authorized us (Wythe and Jefferson) to report him as concurring in the work. We accordingly divided the work, and re-executed it entirely, so as to assimilate its plan and execution to the other parts." (Jefferson to Skelton Jones, July 28, 1809.)
proforce of the compliment said by Henry Lee, the son of General Henry Lee, to have been paid by John Wickham to Pendleton on the superior precision of his (Pendleton's) part of the revision; and as we may sup pose that Jefferson, being the younger and more ready man, recast much more of Pendleton's part than Wythe, it may be that the very precision praised by Wickham was the merit of Jefferson. Still, eminent credit is due to each of the revisors, and it deserves to be noticed that although the admirable accomplishment of this great work was sufficient of itself to fill the measure of the fame of each, yet such were the numerous and valuable services rendered by each of the revisors to his country that the revision of the laws appears only as one act of the series. See RandaWs Jefferson, Vol. I, 217. pg. 135 footnote 127
Prentis, one of the best of men, the substi tute of Wythe in the Convention of 1775, an old member of the House, and afterwards a judge of the General Court; pg. 140 footnote 133 The revised bills, continued from the last session, were still under discussion; but, after many had been disposed of, it was determined to appoint a second committee of revisors to complete an entire revision of the laws; for in the interval of the first appointment of the revisors ten years had elapsed, and the legislation of that period required to be drafted into the Code; and Edmund Pendleton and George Wythe, two of the former revisors, and John Blair were appointed to perform the work.
And on the 4th of December George Washington, Patrick Henry, Edmund Randolph, John Blair, James Madison, George Mason, and George Wythe were elected, by joint ballot of both houses, deputies to the General Con vention.
Mason was on<t of the first of our early statesmen to condemn the policy of insufficient salaries for the highest functionaries of the State—a policy which prescribed as a fit reward for the services of a Wythe a sum a modern day laborer might earn in the course of a year.**
That he was the equal and rival of such men as Thomson Mason, Wythe, Pendleton, Peyton Randolph, and his brother John, and others of a similar stamp, is praise enough with posterity.
A few weeks after the adjournment of the Convention which formed that instrument, Wythe, in a letter to Jefferson, expressed himself in a way that would lead at first sight to the opinion that he believed an ordinary Legislature compe tent to amend that instrument at pleasure, and a design was seriously meditated during the war of undertaking tne office of revisal.*
In a review of the Life of Jefferson by Randall, in the Richmond Enquirer of 15th of January, 1858, the language of Wythe is examined, and shown to be the result of forgetfulness for the moment, and not conflicting with the doctrine afterwards laid down by him, that an act of Assembly in conflict with the Constitution is void. A letter of George Mason's, deprecating the attempt to revise the Constitution by the Assembly, may be seen in the Virginia Historical Register. pg. 310 footnote 289
One of the most interesting debates of the session occurred on the bill authorizing the creation of a stock of eleven million two hundred and fifty thousand dollars for the payment of the pur chase-money of Louisiana. It was warmly opposed by White, Wells, Pickering, Dayton, Tracy, and others, and was warmly supported by Wythe, Taylor (of Caroline), Breckenridge, and Nicholas.
Born in Williamsburg, he might, in early youth, have seen his father, and Peyton Randolph, and Wythe bearing the pall of Fauquier, and might have told us where the bones of that skilful dealer in cards, and elegant scholar, were laid away. pg. 357