Alexander Stephens Predicts Civil War, July 3, 1850

I suspect that many or most who deplore the Compromise of 1850 assume that it wasn't necessary - the South would have rolled over anyway. It's impossible, of course, to prove (or disprove) the consequences of contingent scenarios that never came to be. But the angry words of Alexander H. Stephens certainly suggest that, had the compromise failed, and had shooting broken out between Texas and the United States over the Texas-New Mexico border in late 1850 or 1851, the Civil War would likely have started out ten years early.

After the Compromise was brokered, Stephens became its champion. He helped lead the campaign in support of the Compromise in his native Georgia, decisively rallying public opinion behind the Compromise and away from secession in late 1850 and 1851.

But at the beginning of July 1950, Stephens was both angry and frantic. Having heard that President Zachary Taylor supported the immediate admission of New Mexico as a state, Stephens then received news that the president and his cabinet "had supported using the army if necessary to oppose Texas forces in New Mexico." On July 3, 1850, Stephens, already "smoldering", read an editorial in the National Intelligencer that appeared to confirm the report: the Whiggish newspaper urged that "If Texas advanced on Santa Fe . . . it would be the 'duty' of the army to defend it."

Stephens promptly sat down and wrote to the paper a reply (published by the Intelligencer on July 4)that both expressed his fear that this course would lead to general civil war and made clear that even moderates like Stephens would regard war as justified. Thomas E. Schott summarizes Stephens's letter in Alexander H. Stephens of Georgia: A Biography (from which the other quotes in this post are likewise taken):

Convinced beyond doubt that Taylor would use force to carry out his policy, Stephens sat down at his desk in the House and wrote a blistering reply to the editors. "The first Federal gun that shall be fired against the people of Texas, without the authority of law, will be the signal for the freemen from Delaware to to the Rio Grande to rally to the rescue." Whatever doubts there might be about the Texas boundary, "nothing can be clearer than that it is not a question to be decided by the army." In case of conflict, the Texas cause would be the cause of the entire south.

Here's a thought exercise. Imagine you're a northern politician in mid-1850. You detest the Slave Power, slavery and the proposed Fugitive Slave Act in particular. Do you hold your nose and support the proposed compromise because you fear civil war? Or, if you decide to oppose the compromise, do you do so because (a) you're confident the South will cave, or (b) war or no war, it's about time someone stood up to these people?

About the illustration, entitled Congressional Scales, A True Balance (1850):

A satire on President Zachary Taylor's attempts to balance Southern and Northern interests on the question of slavery in 1850. Taylor stands atop a pair of scales, with a weight in each hand; the weight on the left reads "Wilmot Proviso" and the one on the right "Southern Rights." Below, the scales are evenly balanced, with several members of Congress, including Henry Clay in the tray on the left, and others, among them Lewis Cass and John Calhoun, on the right. Taylor says, "Who said I would not make a "NO PARTY" President? I defy you to show any party action here." One legislator on the left sings, "How much do you weigh? Eight dollars a day. Whack fol de rol!" Another states, "My patience is as inexhaustible as the public treasury." A congressman on the right says, "We can wait as long as they can." On the ground, at right, John Bull observes, "That's like what we calls in old Hingland, a glass of 'alf and 'alf."

Alternative History

This Etsy page features wonderful prints of American historical themes and figures . . . slightly altered. The one above is my favorite because it includes Millard. The one below is for you Abe lovers!

Thanks to Boing Boing for the pointer.

Publius Valerius Publicola and the Federalist Papers

You probably know that Alexander Hamilton, John Jay and James Madison wrote the Federalist Papers under the pseudonym "Publius." Publius was a common Roman name, and I always assumed that the Federalist authors used it generically, to invoke the aura of the Roman republic, not to refer to a specific person.

But today I heard that the Federalist authors did mean to summon up the image of a particular Roman. A quick check of the Wikipedia entry for the Federalist Papers corroborates that at least one academic has asserted that Hamilton decided to use the name "in honor of" a specific Roman: Publius Valerius Publicola.

Hamilton chose "Publius" as the pseudonym under which the series would be written. While many other pieces representing both sides of the constitutional debate were written under Roman names, Albert Furtwangler contends that "'Publius' was a cut above 'Caesar' or 'Brutus' or even 'Cato.' Publius Valerius was not a late defender of the republic but one of its founders. His more famous name, Publicola, meant 'friend of the people.'" It was not the first time Hamilton had used this pseudonym: in 1778, he had applied it to three letters attacking Samuel Chase.

Publicola, a legendary figure from the dawn of the Roman republic, helped drive out the last of the kings and later sponsored a law that permitted the murder of anyone who tried to become king. Here's Plutarch:

But although in these particulars [Publicola] showed himself a popular and moderate lawgiver, in the case of an immoderate offence he made the penalty severe. For he enacted a law by which any one who sought to make himself tyrant might be slain without trial, and the slayer should be free from blood-guiltiness if he produced proofs of the crime. For although it is impossible for one who attempts so great a task to escape all notice, it is not impossible for him to do so long enough to make himself too powerful to be brought to trial, which trial his very crime precludes. He therefore gave any one who was able to do so the privilege of anticipating the culprit's trial.

But, if the story is true, I can't help wondering whether Hamilton settled on the name because he enjoyed the delicious irony that the most famous tale about Publicola revealed the inherently irrational nature of an insufficiently controlled populace.

As the story goes, having established his devotion to republicanism beyond any possible doubt, Publicola built a house on a height above Rome called the "Velia". The Roman public promptly drew the bizarre conclusion that Publicola was going to use the house as base from which to establish himself as king. Here's Livy:

After the battle had gone in this way [a battle in which Publicola had led a Roman army which defeated an Etruscan attempt to reinstate the last king], so great a panic seized Tarquin and the Etruscans that the two armies of Veii and Tarquinii, on the approach of night, despairing of success, left the field and departed for their homes. . . .

At all events the Romans left the field as victors; the Etruscans regarded themselves as vanquished, for when daylight appeared not a single enemy was in sight. P. Valerius [Publicola], the consul, collected the spoils and returned in triumph to Rome. He celebrated his colleague's obsequies with all the pomp possible in those days, but far greater honour was done to the dead by the universal mourning, which was rendered specially noteworthy by the fact that the matrons were a whole year in mourning for him, because he had been such a determined avenger of violated chastity.

After this the surviving consul, who had been in such favour with the multitude, found himself - such is its fickleness - not only unpopular but an object of suspicion, and that of a very grave character. It was rumoured that he was aiming at monarchy, for he had held no election to fill [Lucius Junius] Brutus' place [Brutus had been killed in the battle], and he was building a house on the top of the Velia, an impregnable fortress was being constructed on that high and strong position.

The consul felt hurt at finding these rumours so widely believed, and summoned the people to an assembly. As he entered the "fasces" were lowered, to the great delight of the multitude, who understood that it was to them that they were lowered as an open avowal that the dignity and might of the people were greater than those of the consul. Then, after securing silence, he began to eulogise the good fortune of his colleague [Brutus] who had met his death, as a liberator of his country, possessing the highest honour it could bestow, fighting for the commonwealth, whilst his glory was as yet undimmed by jealousy and distrust. Whereas he himself had outlived his glory and fallen on days of suspicion and opprobrium; from being a liberator of his country he had sunk to the level of the Aquilii and Vitellii.

"Will you," he cried, "never deem any man's merit so assured that it cannot be tainted by suspicion? Am I, the most determined foe to kings, to dread the suspicion of desiring to be one myself? Even if I were dwelling in the Citadel on the Capitol, am I to believe it possible that I should be feared by my fellow-citizens? Does my reputation amongst you hang on so slight a thread? Does your confidence rest upon such a weak foundation that it is of greater moment where I am than who I am? The house of Publius Valerius shall be no check upon your freedom, your Velia shall be safe. I will not only move my house to level ground, but I will move it to the bottom of the hill that you may dwell above the citizen whom you suspect. Let those dwell on the Velia who are regarded as truer friends of liberty than Publius Valerius."

All the materials were forthwith carried below the Velia and his house was built at the very bottom of the hill where now stands the temple of Vica Pota.

And here's Plutarch:

But that which the rather displeased and offended the people in Valerius was this. Brutus, whom they regarded as the father of their liberties, would not consent to rule alone, but once and again chose a colleague to rule with him. "But this Valerius," they said, "in concentrating all power upon himself, is not a successor to the consulate of Brutus, to which he has no right, but to the tyranny of Tarquin. Yet why should he extol Brutus in words, while in deeds he imitates Tarquin, descending to the forum alone, escorted by all the rods and axes together, from a house no less stately than the royal house which he demolished?"

For, as a matter of fact, Valerius was living in a very splendid house on the so‑called Velia. It hung high over the forum, commanded a view of all that passed there, and was surrounded by steeps and hard to get at, so that when he came down from it the spectacle was a lofty one, and the pomp of his procession worthy of a king.

Accordingly, Valerius showed what a good thing it is for men in power and high station to have ears which are open to frankness and truth instead of flattery. For when he heard from his friends, who spared him no detail, that he was thought by the multitude to be transgressing, he was not obstinate nor exasperated, but quickly got together a large force of workmen, and while it was still night tore the house down, and razed it all to the ground.

In the morning, therefore, the Romans saw what had happened, and came flocking together. They were moved to love and admiration by the man's magnanimity, but were distressed for the house, and mourned for its stately beauty, as if it had been human, now that envy had unjustly compassed its destruction. They were also distressed for their ruler, who, like a homeless man, was now sharing the homes of others. For Valerius was received into the houses of his friends until the people gave him a site and built him a house, of more modest dimensions than the one he had lived in before, where now stands the temple of Vica Pota, so‑called.

Wishing now to make not only himself but also the government, instead of formidable, submissive and agreeable to the multitude, he removed the axes from the lictors' rods, and when he came into the assembly, inclined and lowered the rods themselves to the people, emphasizing the majesty of the democracy. This custom the consuls observe to this day. And before the multitude were aware of it, he had succeeded, not by humbling himself, as they thought, but by checking and removing their envious feelings through such moderation on his part, in adding to his real influence over them just as much as he had seemed to take away from his authority, and the people submitted to him with pleasure and bore his yoke willingly.

They therefore called him Publicola, a name which signifies people-cherisher. This name prevailed over the older names which he had borne, and it is the name which I shall use for him in the remainder of this Life.

Charles Sumner Receives a Stroke of Good Luck

Ironically, the caning that Massachusetts Senator Charles Sumner received from South Carolina Representative Preston Brooks on May 22, 1856 may well have been the best stroke of good luck that Sumner ever received, rescuing his senatorial career and ultimately transforming him into one of the most powerful men in the country.

Sumner was first elected to the United States Senate by the Massachusetts legislature in 1851 as the result of an unstable and transitory coalition between Democrats and Free Soilers. No party at the time had a majority in the state. At the beginning of 1851, Massachusetts Free Soilers - heretofore primarily a group with more connections to the Whigs than to the Democrats in Massachusetts - struck a deal with the Democrats:

With Free Soil backing, the Democrats would elect their candidate for governor, George S. Boutwell, the lieutenant governor, the speaker and other officers of the [state] House of Representatives, a majority of the governor's counsel; in addition they would receive the short-term United States senatorship, the few remaining weeks of [Daniel] Webster's term which [Robert C.] Winthrop was filling.

The quid pro quo included the other Senate seat, which would go to Sumner:

The Free Soilers would get the presidency of the state senate, the remaining members of the governor's council, and the six-year United States senatorship, commencing March 4 [1851]. On January 7 [1851], a Free Soil caucus, by a vote of eighty-four to one, nominated Sumner senator, and the following day the Democrats, with only six dissenting votes, accepted him.

But even with this deal, Sumner's election was a close-run thing. In the legislative voting, a large majority of the Whigs unenthusiastically but steadfastly supported Winthrop. More important, a faction within the Democratic Party, led by Caleb Cushing and former governor Marcus Morton, "objected to sending 'a red-hot Abolitionist, . . . like a firebrand, for six years, into the senate chamber of the United States.'" Although Sumner was tantalizingly close, he was a few votes short.

The legislature remained deadlocked for over three and a half months (from early January to late April 1851). Ultimately, Sumner was elected "with a majority of precisely one" vote:

On April 24 [1851] the legislature reassembled in an atmosphere of great tension. On the twenty-fifth ballot there were again two more votes than there were representatives present [there had been prior irregularities]. After much wrangling, the house adopted a Whig proposal that on future ballots each member must cast his vote in a sealed envelope, so that it would be impossible for these extra ballots to be slipped in. Shortly after noon, the twenty-sixth ballot was taken. This time Sumner received 193 of the 385 votes cast, a majority of precisely one, and was declared elected.

Having been elected by a paper-thin majority, Sumner soon saw the coalition that elected him fall apart, for both internal and external reasons. In the 1852 and 1853 elections, the coalition was defeated by the Whigs, the second "time so decisively that the plan for Free Soil-Democratic fusion in Massachusetts was finally abandoned." The Whigs, in charge of the state government, elected Edward Everett to the other senate seat.

Then in 1854 the Know-Nothing tidal wave hit Massachusetts. Democrats, Whigs, Free Soilers and the new Anti-Nebraska proto-party alike were swept away in the deluge. The Know-Nothings emerged with the governorship, an overwhelming majority in the state legislature, and the U.S. Senate seat not held by Sumner:

[Former Conscience Whig and Free Soiler Henry] Wilson . . . had thrown his strength behind Henry J. Gardner, the Know-nothing candidate for governor. In return he secured a pledge that, if successful, the Know-nothings would elect him to the Senate as Sumner's colleague. Gardner received an unprecedented majority of nearly 33,000 votes, and the new legislature consisted of one Whig, one Democrat, one Republican - and 377 Know-nothings.

Although the Know-Nothing tide ebbed somewhat in 1855, the Know-Nothings remained firmly in charge of the state. "In 1855, as in the previous year, the new [Republican] party made a poor showing in the polls, and Gardner, combining nativism and Whiggery, was re-elected."

In short, by the end of 1855 - and the Congressional session beginning December 1855 was the last in which Sumner had a chance to make an impact before he would be up for reelection in early 1857 - Sumner's political base had disappeared. For all the latent anti-slavery sentiment in Massachusetts, the old coalition had fallen apart and there was no sign that the new anti-Nebraska coalition would gel anytime soon. Many former Whigs detested him and Democrats felt no loyalty for him. Governor Gardner was eying the Senate seat and "plot[ting] to stage a premature election of [Sumner's] successor." Sumner looked like a political goner.

"Providentially, a burning issue came to hand" that saved Sumner from likely defeat. At the beginning of January 1856 Democratic Senator Stephen A. Douglas of Illinois introduced the Kansas-Nebraska Act, which gave Sumner the opening to deliver his The Crime Against Kansas speech on May 19 and 20, 1856. Two days later, on Thursday May 22, 1856, South Carolina Representative Preston Brooks administered his famous caning of Sumner - and created a "senator for life":

Sumner's friends used Massachusetts indignation over the assault to bolster his shaky political prospects. The news of the attack reached Boston just in time to give Sumner's supporters a face-saving victory over Governor Gardner, who was trying to emasculate the personal liberty law Sumner had helped draft. By astute management Republicans forced through the legislature resolutions not merely condemning Brooks's actions, but endorsing "Mr. Sumner's manliness and courage in his earnest and fearless declaration of free principles, and his defence of human rights and free territory." [Future wartime Republican governor] John A. Andrew almost gave the game away when he blurted out at the Faneuil Hall rally that in order to secure "liberty of speech - nay, liberty itself," Sumner must be re-elected, for Republicans were unobtrusively working toward precisely that end. "Providence itself seems to be on the side of the republican party," [Sumner's estranged former law partner George S.] Hilliard lamented. "Sumner is not merely their champion but their martyr, and his election for the next six years is now certain." A New Yorker, more prescient, declared that Sumner "is made by this act, senator for life."

After that, Sumner's reelection was almost a foregone conclusion. When the new state legislature met in January 1857,

the Republicans in the [state] House of Representatives forced a vote on January 9, even before Governor Gardner [who had once again been reeelected] could send in his inaugural message, which they feared might contain distracting proposals. Out of the 345 votes cast, Sumner received all but twelve. Four days later, against protests over their unseemly haste, Republicans in the [state] Senate adopted a rule for viva-voce voting on the senatorial election, and, as public opinion could thus be brought to bear upon each member, Sumner received the unanimous vote of the upper house.

In his book Charles Sumner and the Coming of the Civil War (from which all quotes in this post are taken), Prof. David Herbert Donald sums up Sumner's stroke of good luck:

Candidate of a minority party, [Sumner] was first chosen to the Senate through the devious workings of a political coalition. At nearly any point during his first five years in office, had he been up for re-election, he would almost certainly have been defeated. Then Preston Brooks's attack gave him his second term in the Senate and thereby assured him seniority and prestige within the Republican party. Never chosen by direct popular vote for any office, Sumner, by 1861, nevertheless had become one of the most powerful men in the United States.

Seward, You Weeny!

Think the word "weeny" is of recent vintage? Think again. Amanda Foreman records its use by none other than Massachusetts Senator Charles Sumner in the summer of 1861, referring to Secretary of State William H. Seward, whom Sumner detested. On July 3, 1861 The Times correspondent William Howard Russell

bumped into [Sumner] on the street [in Washington] and had to stand for an hour in the blistering heat while Sumner gleefully enlarged on "the dirty little mountebankism of my weeny friend in office."

So, was Sumner calling Seward a dick? Alas, probably not. A quick search around the internets suggests that the words "weeny" and "weenie" are of different origin. Weeny, an adjective, is a diminutive of "wee", small, and apparently dates to at least the late Eighteenth Century. Think "teeny-weeny." Weenie, a noun, apparently derives from wiener and is of later origin. Perhaps by association with weeny (I'm guessing here), "weenie" acquired a connotation of smallness (a weeny weenie, as it were) and thus the meaning of nerd.

About the illustration, entitled I'm Not to Blame for Being White, Sir! (1862):

Massachusetts senator and prominent antislavery advocate Charles Sumner is attacked here. The artist questions his sincerity as a humanitarian as he shows him dispensing a few coins to a black child on the street, while ignoring the appeal of a ragged white urchin. The scene is witnessed by two stylishly dressed young women. Though unsigned, the print has the relatively skillful draftsmanship and atmospheric quality found in the works of Boston lithographer Fabronius. See, for instance, that artist's "The Mower" (no. 1863-14). "The Secession Bubble" (no. 1862-12) also appears to be by Fabronius. Weitenkampf gives the 1862 date and publisher's imprint.

The Owl of Minerva Flies Only at Dusk

Only one word more concerning the desire to teach the world what it ought to be. For such a purpose philosophy at least always comes too late. Philosophy, as the thought of the world, does not appear until reality has completed its formative process, and made itself ready. History thus corroborates the teaching of the conception that only in the maturity of reality does the ideal appear as counterpart to the real, apprehends the real world in its substance, and shapes it into an intellectual kingdom. When philosophy paints its grey in grey, one form of life has become old, and by means of grey it cannot be rejuvenated, but only known. The owl of Minerva, takes its flight only when the shades of night are gathering.

Georg Wilhelm Friedrich Hegel, Preface to Philosophy of Right.

Everything in the universe is, is, is made of one element,
which is a note, a single note.
Atoms are really vibrations, you know.
With your extensions of the BIG NOTE, everything's one note.
Everything, even the ponies.
The note, however, is the ultimate power,
but see the pigs don't know that,
the ponies don't know that.

Frank Zappa, Lumpy Gravy.

Huh?

Elektratig.

William Seward's Irrepressible Conflict

A while ago, I puzzled over What the Hell Happened to William Seward? How was it, I wondered, that the north's leading radical anti-slavery Whig during the 1850s - the guy whom the Republicans failed to nominate in 1860 because they perceived him as too radical, versus the more "moderate" Lincoln - became such a wimp during the secession crisis, frantically seeking to appease the south to the point that he had to mislead the president in the process?

What I discovered, to my surprise, was that Seward displayed many signs of moderation during the 1850s. In fact, it seemed that his "radical" reputation was based largely, and perhaps exclusively, on two speeches - one might say on two phrases: his "higher law than the Constitution" speech of 1850, and his "irrepressible conflict" speech of 1858.

In her wonderful (thus far) A World on Fire: Britain's Crucial Role in the American Civil War, Amanda Foreman reaches a similar, but more pointed conclusion about Seward: he was a moderate with a radical veneer who, during the late 1850s, spent years positioning himself "as the moderate alternative to Charles Sumner."

Ironically, she maintains, Seward inadvertently sabotaged those efforts, and his bid for the presidency in 1860, with his October 1858 "irrepressible conflict" speech. Although the phrase was not all that different from Lincoln's "house divided" language, Seward's speech was perceived as more divisive. "Whereas Lincoln sounded as though he were giving a warning, Seward seemed to be laying down a challenge." The damage to Seward's image was immediate and lasting:

Seward later claimed that "irrepressible" was not the same as "unavoidable," but the damage could not be undone. The press dubbed him "Irrepressible Conflict Seward," fostering the sense that he was a divisive rather than a unifying figure and voiding three years of careful positioning by Seward to be perceived as the moderate alternative to Charles Sumner.

On the advice of his friend and manager, Thurlow Weed, Seward traveled to Britain in the Spring of 1859 "in the hope that the public would forget the unfortunate phrase" before the 1860 election season.

Alas, it was not to be. When Seward returned to the United States on December 28, 1859, southern hysteria following the John Brown raid was at its peak, and southerners repeatedly pilloried Seward as an instigator. In the Senate, James Murray Mason of Virginia, whose seat was next to Seward's,

harangued [Seward] for being the moral, though not actual, instigator of the action. Again and again, Seward's unfortunate phrase "irrepressible conflict" was hurled back in his face. Democratic newspapers denounced his as the "arch agitator who is responsible for this insurrection." One Virginia newspaper even went so far as to put a price of $100,000 on his head; the governor of Virginia urged the South to demand Seward's exclusion from the presidency.

About the illustration, entitled "The Irrepressible Conflict" or the Republican Barge in Danger (1860):

The cartoon reflects the considerable bitterness among New York Republicans at the party's surprising failure to nominate New York senator William H. Seward for president at its May 1860 national convention. The print was probably issued soon after the convention's nomination of Abraham Lincoln. The "Republican Barge" tosses on a stormy sea, precariously close to a rocky shore, with Lincoln (far left) at the rudder. "I'll take the helm. I've steered a "flat" boat before," says Lincoln. Also in the barge are (left to right) "Tribune" editor and powerful Lincoln supporter Horace Greeley, Missourian Edward Bates, an unidentified man, and former Washington "Globe" editor and influential Jacksonian Democrat Francis Preston Blair. The three men together heave Seward overboard. Greeley says, "Over you go Billy! Between you and I there is an "Irrepressible Conflict." Bates encourages him, "Over with him Horace never mind his kicking!" while Blair says, "He can't withstand my muscle for I once moved the Globe." The idea of an "irrepressible conflict" between slaveholding and free interests in the Union was taken from Seward's famous 1858 Rochester speech against slavery. The term became a catchphrase for radical antislavery factions in the North. Seward protests, "Dont throw "me" overboard, I built this boat, and I alone can save it." Further right are three unidentified men, two of whom are speaking. One cries, "I'm afraid this boat will sink." The other remarks, "If it had only been built in two sections instead of one we might be saved." A black wearing "Discord's Patent Life Preserver" notes, "If de boat and all hands sink, dis Nigger sure to swim, Yah! Yah!" In the bow sits New York "Courier" editor James Watson Webb, who warns, "Breakers ahead!!" Watching anxiously from the shore is Brother Jonathan, clad in striped trousers, coat with tails, and a tall hat. He admonishes the boat's crew, "You wont save your crazy old craft by throwing your pilot overboard; better heave that tarnal Nigger out."

William Seward's April Fools Memo: The Prequel

As you may know, in his somewhat wacky April 1, 1861 "April Fools Memorandum", entitled Some Thoughts for the President's Consideration, Secretary of State William H. Seward recommended to President Abraham Lincoln, among other things, that the United States declare war on Spain and France:

I would demand explanations from Spain and France, categorically, at once.

I would seek explanations from Great Britain and Russia, and send agents into Canada, Mexico, and Central America to rouse a vigorous continental spirit of independence on this continent against European intervention.

And, if satisfactory explanations are not received from Spain and France,

Would convene Congress and declare war against them.

In her beautifully written book, A World on Fire: Britain's Crucial Role in the American Civil War, Amanda Foreman provides evidence that Seward had been contemplating the possibility of war as a means of diverting secession for almost two months before he delivered his memorandum to Lincoln. On the morning of February 3, 1861, "Seward paid a surprise call on Lord Lyons," the British envoy to the United States in Washington. In a confidential memorandum to his government, Lord Lyons reported that, during the meeting, Seward indicated that a foreign war would not displease him. Lyons reported that

Seward also repeated to him a recent conversation with the minister from Bremen (one of the smaller states of the German Confederation), "no doubt for my instruction." The hapless diplomat had complained about the Republican Party's election promise to place tariffs on foreign imports, saying that such a move would turn Europe against America at the moment when she most needed friends. Seward claimed to have replied that nothing would give him more pleasure, since he would then have the perfect excuse for an international quarrel, "and South Carolina and the seceding states would soon join in."

Resolution VI of The Virginia Plan

Lawprof Kurt T. Lash has written some great articles on the Ninth and Tenth Amendments, among other things. A new article is always a treat. I haven't read it yet, but I see via Lawrence Solum's Legal Theory Blog that the good professor has a new article up at SSRN: "Resolution VI": The Virginia Plan and Authority to Resolve "Collective Action Problems" Under Article I, Section 8. The abstract is as follows:

In the past few years, a number of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with the traditional principle of judicially limited enumerated power and replacing it with the principle declared in Resolution VI of the Virginia Plan originally introduced in the Philadelphia Constitutional Convention. According to Resolution VI, federal power should be construed to reach all matters involving the “general interests of the Union,” those “to which the “states separately are incompetent” and those affecting national “harmony.” Resolution VI advocates maintain that, under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI advocates argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI.

A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and allowing federal action in all cases in which the “states separately are incompetent.” In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever during the ratification debates. Claims to the contrary are based on an error of historical fact.

For those who are not familiar with it, the full text of Resolution VI, as reprinted in Farrand's Records, provided as follows:

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in all which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duties under the articles thereof.

Prof. Solum awards the article his "Download of the Week" prize and opines, "Highly recommended. Download it while its hot!" I've already done so.

Henry Clay and the First Bank: The Cow and the Turkey

In the early 1820s William Harris Crawford of Georgia would become a conservative, almost winning the presidency in 1824. But all that lay in the future. In February 1811, he was a staunch defender of the First Bank of the United States in the Senate, "deliver[ing] a brilliant speech is support of the bank, which even [Nathaniel] Macon called 'a better argument in favor of it on constitutional ground than ever has been made. . . .'"

In his February 15, 1811 Senate speech opposing the extension of the First Bank's charter, Henry Clay, having disposed of William Branch Giles, next turned to Sen. Crawford's complaint, as paraphrased by Clay, "that this has been made a party question." In fact, Clay pointed out, the original bank bill, passed in 1791, "was one of the causes of the political divisions of this country" and had spurred the formation of the Jeffersonian Republicans. It was Crawford, not opponents of the bank, who was playing politics and abandoning the Republican party:

And if, on this occasion, my worthy friend from Georgia has gone over over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?

Taking advantage of the fact that Crawford and other proponents had cited different provisions of the Constitution as the source of Congress's power to create the bank, Clay mocked their attempts to locate "some congenial spot" in which to locate "[t]his vagrant power":

This vagrant power to erect a bank, after having wandered throughout the whole Constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money.

Clay's arguments had to this point been largely playful. But now he became more serious. The Constitution granted Congress limited and defined powers. "The power to charter companies is not specified in the grant." And while the Necessary and Proper Clause may effectively grant implied powers, those powers "must be necessary, and obviously flow from the enumerated power with which it is allied."

What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implications must be necessary, and obviously flow from the enumerated power with which it is allied.

Emphasizing the fearsome powers of corporations, Clay denied that the power to charter companies could be created by mere implication:

The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty - which has subverted empires and set up new dynasties - and has not only made war, but war against its legitimate sovereign!

Examples of implied powers cited by supporters - such as "the power 'to make rules and regulations for the government of the land and naval forces,' which, it is said, is incidental to the power to raise armies and provide a navy" - only proved Clay's point, for they demonstrated "[h]ow extremely cautious the Convention were to leave as little as possible to implication."

In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the Constitution.

Applying these principals might permit the creation of a bank of limited powers. But the First Bank had, and was proposed to have, powers that extended far beyond any enumerated end:

If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a sattelite [sic] to the humblest star that twinkles forth its feeble light in the firmament of the heavens!

In order to illustrate his point Clay resorted to an analogy. I'm not sure it works, but who can resist a story about a cow and a turkey?

Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount - to emit paper - to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please!

About the illustration, entitled A Foot-Race (1824):

A figurative portrayal of the presidential race of 1824. A crowd of cheering citizens watch as candidates (left to right) John Quincy Adams, William Crawford, and Andrew Jackson stride toward the finish. Henry Clay has dropped from the race and stands, hand on head, on the far right saying, "D--n it I cant save my distance--so I may as well "draw up."" He is consoled by a man in riding clothes, "Well dont distress yourself--there'll be some scrubbing by & by & then you'll have a chance." Assorted comments come from the crowd, reflecting various sectional and partisan views. A Westerner with stovepipe hat and powder horn: "Hurra for our Jacks-"son."" Former President John Adams: "Hurra for our son "Jack."" Two men in coachmen's livery: "That inne-track fellow [Crawford] goes so well; that I think he must have got the better of the bots [boss?]." and "Like enough; but betwixt you & I--I dont think he'll ever get the better of the "Quinsy."" A ragged Irishman: "Blast my eyes if I dont "venter" a "small" horn of rotgut on that "bald filly" in the middle [Adams]." A Frenchman: "Ah hah! Mon's Neddy I tink dat kick on de "back of you side" is worse den have no dinner de fourt of july." In the left background is a platform and an inaugural scene, the "Presidential Chair" with a purse "

Henry Clay and the First Bank: "A most unjustifiable law"

Early in his national career, Henry Clay opposed the extension of the charter of the First Bank of the United States. In his book The Old Republicans: Southern Conservatism in the Age of Jefferson, Norman K. Risjord has characterized Clay's principal speech in opposition to the BUS as "probably the ablest exposition of Republican doctrine on the subject since [James] Madison's war on the bank in 1791." That prompted me to find the speech in the Annals of Congress, and I thought I'd share some highlights here.

Clay first came to Washington to serve brief stints as United States Senator from Kentucky in 1806-07 and 1810-11. It was during his second term that the Senate took up the question whether the Bank of the United States should be extended. The BUS had originally been chartered by the First Congress in 1791 for a period of twenty years, and the charter was scheduled to expire in 1811.

On Friday February 15, 1811, Henry Clay took the Senate floor to oppose extension of the charter. In light of Clay's later advocacy of his American System - based on the three pillars of a national bank, a high, protective tariff, and federal funding of internal improvements - young Senator Clay's denunciation of the First Bank proved to be a supreme irony, which his political opponents ever used against him.

But in February 1811 Clay declared that he had, after much deliberation, concluded that he had no choice but to oppose the charter extension bill as "a most unjustifiable law." Clay maintained that he had initially decided not to speak against the bill. The original Bank bill had been passed after the founders themselves had thoroughly explored the arguments pro and con. What more could Clay add?

As the subject, at the memorable period when the charter was granted, called forth the best talents of the nation- as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to have been hoped that we should have been spared an useless debate. This was the more desirable because there are, I conceive, much superior claims upon us for every hour of the small portion of the session yet remaining to us.

But the arguments advanced in favor of charter extension, Clay explained, demanded refutation:

Under the operation of these motives, I had resolved to give a silent vote, until I felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties I owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law.

With this preamble, Clay rounded on one of the orators whose "defying manner" of argument had apparently stirred Clay - Senator William Branch Giles of Virginia. Sen. Giles, generally an advocate of an energetic federal government, had argued that the federal government nonetheless lacked the power to establish a bank, resulting in (in the words of John Randolph of Roanoke) "the most unintelligible speech on the subject of the Bank of the U.S. I ever heard." Clay played on these contradictions:

After my honorable friend from Virginia (Mr. GILES) had instructed and amused us with the very able and ingenious argument which he delivered on yesterday, I should have still forborne to trespass on the Senate, but for the extraordinary character of his speech. He discussed both sides of the question, with great ability and eloquence, and certainly demonstrated to the satisfaction of all who heard him, both that it was Constitutional and unconstitutional, highly proper and improper to prolong the charter of the bank.

Clay then illustrated Sen. Giles's oratorical success by relating a no doubt apocryphal story about Patrick Henry:

The honorable gentleman appeared to me in the predicament in which the celebrated orator of Virginia, Patrick Henry, is said to have been once placed. Engaged in a most extensive and lucrative practice of the law, he mistook in one instance the side of the cause on which he was retained, and addressed the court and jury in a very splendid and convincing speech in behalf of his antagonist.

His distracted client came up to him whilst he was progressing, and interrupting him, bitterly exclaimed, "you have undone me! "you have ruined me!"

"Never mind, give yourself no concern," said the adroit advocate; and turning to the court and jury, continued his argument by observing, "May it please your honors, and you, gentleman of the jury, I have been stating to you what I presume my adversary may urge on his side. I will now show you how fallacious his reasoning and groundless his pretensions are."

The skilled orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause! A success with which I trust the exertion of my honorable friend will on this occasion be crowned.

"In every tax, your object should be revenue"

In The Old Republicans, Norman K. Risjord cites a speech delivered by Virginia Rep. Alexander Smyth on Thursday January 30, 1823 as "the first time it was openly asserted on the House floor" "that the protective tariff was unconstitutional." Rep. "Smyth maintained that the power to lay and collect taxes was for purposes of revenue only; Congress had no power to protect domestic manufactures":

Sir, I consider the committee who brought in this bill as an unconstitutional committee. Show me your authority to encourage domestic manufactures. You have nothing to do with manufactures but to pass a law for giving up runaway apprentices; and nothing to do with agriculture, but to pass a law for giving up runaway slaves.

You have power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States." The power granted to you is a power to raise revenue for the purpose of executing your granted powers; not a power to impose taxes to diminish the revenue, thereby to encourage and protect domestic manufactures. If you levy taxes for any other purpose but to raise revenue bona fide, you abuse your power.

You have a choice of subjects of taxation, but, in every tax, your object should be revenue. If, by the imposition of the duties necessary to the raising an adequate revenue, manufactures are encouraged, it is a beneficial consequence. The Convention who former the Constitution, have never mentioned the subject of manufactures; yet, they had under consideration a proposition to give the General Government a controlling power over manufactures, which they appear to have rejected. [Here Mr. S. read some passages from the Journal of the Convention to show that such a proposition was, with others, referred to a committee; that several of the other propositions, which were referred with it, were inserted in the Constitution; but this was omitted.]

"The first defense of slavery as a positive good ever to be heard on the floor of Congress"

In The Old Republicans: Southern Conservatism in the Age of Jefferson, Norman K. Risjord identifies an argument by North Carolina Senator Nathaniel Macon, made on Thursday January 20, 1820, during the Missouri debates, as “the first defense of slavery as a positive good ever to be heard on the floor of Congress”:

It is a fact, that the people who move from the non-slaveholding to the slaveholding States, when they become slaveholders by purchase or marriage, expect more labor from them than those do who are brought up among them.

To the gentleman from Rhode Island (Mr. Burrill) I tender my hearty thanks, for his liberal and true statement of the treatment of slaves in the Southern States. His observations leave but little for me to add, which is this, that the slaves gained as much by independence as the free. The old ones are better taken care of than any poor in the world, and treated with decent respect by all their white acquaintances. I sincerely wish that he, and the gentleman from Pennsylvania, (Mr. Roberts,) would go home with me, or some other Southern member, and witness the meeting between the slaves and the owner, and see the glad faces and the hearty shaking of hands. . . .

The owner can make more free in conversation with his slave, and be more easy in his company, than the rich man, where there is no slave, with the white hireling who drives his carriage. He has no expectation that the slave will, for that free and easy conversation, expect to call him fellow-citizen, or act improperly.

Some Recommended History Podcasts

I commute most days, and most of my time in the car is spent listening to – you guessed it! – history podcasts. I therefore thought I'd regale you with brief descriptions of some of my favorites. The list is in roughly chronological order. All of the selections are available at iTunes, either as podcasts or in the iTunes U section.

I've probably praised Yale history prof Donald Kagan's course on ancient Greek history before – I'm too lazy to check. Very briefly, Don Kagan (I'm always tempted to use a Marlon Brando-in-the-Godfather rasp and inflection) is one of the great figures in the ancient history field. His four volume work on the Peloponnesian War remains, almost forty years after its publication, the outstanding work on the subject. His lecturing skills have been highly regarded since at least the mid-1970s, when students packed his introduction to ancient Greek history course despite its esoteric subject matter, rigorous grading and Prof. Kagan's notorious status as a despised conservative on a campus that regarded Bobby Seale as a moderate. We are now blessed to have that course available. Take advantage.

Mike Duncan is no Don Kagan. Nonetheless, I've enjoyed – and continue to enjoy – his History of Rome podcasts a great deal. He's over 150 installments now, covering roughly 1.000 years from the appearance of a bunch of huts on the banks of the Tiber to the latter part of the empire (the western empire, at any rate) in the years following the death of Constantine. If you know little about Roman history, you'll learn a good deal. If you know your stuff, it's fun and relaxing, sort of like visiting with an old friend. My only warning is that some of the pronunciations will make you cringe.

Yale prof Keith E. Wrightson speaks with a delightful and mellifluous British accent – which is appropriate, I suppose, for a course on Early Modern England, i.e., basically the Tudors and the Stuarts, from roughly 1500 through 1700. Prof. Wrightson is so smooth that it can be a bit off-putting: one senses that every comma and pause is scripted. But he knows his material inside and out. Although the course includes much of the standard political history, where the good professor really shines, I think, is on the social and economic side. Although Prof. Wrightson repeatedly apologizes for those lectures (students must complain about economic history in particular in their reviews), he conveys a wonderful sense of the transformation of the country and much of its populace from an essentially medieval and local society to an increasingly urbanized and proto-industrial one with extensive regional and national ties.

I thank God that I did not take Stanford history prof Jack Rakove's course on colonial and revolutionary America as an undergraduate. Without background, I would have had no idea what he was talking about. The man is the exact opposite of the well-modulated Prof. Wrightson – he's manic. But it's the mania of a man whose ideas are so plentiful that they just come pouring out in a flood of words. Prof. Rakove is one of the leading scholars on the period of the early Republic and James Madison. My suggestion is that you first read Prof. Rakove's fine Original Meanings, which will give you an anchorage that will allow you to appreciate the torrent as it rushes by. Two subsidiary complaints. The course was recorded during the 2008 election season, and Prof. Rakove does not hesitate to display his adoration of the Big O. Second, there a few annoying comments about the Second Amendment, which he believes, for reasons that elude me, does not support an individual right to bear arms (I've read the brief he submitted to the Supremes and find it totally unconvincing). Prof. Rakove is living proof, I guess, that modern liberal ideology can trump the common sense of even an otherwise learned man.

Yale prof Joanne B. Freeman has a silly laugh, but that's what makes her great. Silly as it is, her laugh embodies and conveys the love for her subject in her course on the American Revolution. Prof. Freeman excels at humanizing the Founders – even the dour Thomas Jefferson – and at bringing home, for example, the communications and world-view gap (my phrase) between the colonists and the British, and explaining the unexpected shock and wrench that the colonists felt when they belatedly discovered that their love of their mother country and its institutions had led them revolt against it.

I think I've complained before that Yale prof David Blight sounds like Garrison Keillor (has no one else recognized this?). I also think, to be frank, that Prof. Blight can sometimes sound like a pompous ass. But if you can get past those two points (which I did), it's hard to ignore one of the leading authorities on the Civil War era. It's been a while since I've heard his course on the Civil War and Reconstruction Era, so I'm a little light on details, but as I recall you get a good, well-told survey of all the basics from about the Wilmot Proviso with a heavy dose, as you might expect, of memory, race, and the like.

I've placed Dan Carlin and his Hardcore History last only because Dan's podcast is unclassifiable. Dan's topics range from ancient Mesopotamia to Word War II. Or he can come up with quirky and fascinating subjects that range across history – Is slavery a baseline human condition? Until recently was the model for child rearing a form of child abuse? Dan's stentorian and melodramatic delivery seems to elicit mixed reviews, but I enjoy it as part of the overall over-the-top package that Dan is clearly trying to deliver. Over-the-top or not, the drama of Dan's episodes – whether it's Tiberius Gracchus being beaten to death or the slaughter of the Stalingrad campaign – can't be beat. My advice is to try out an episode. Don't like it? Fine. But if you like it you'll probably be hooked and have hours of listening pleasure ahead. Dan takes his older podcasts out of free access as he releases new ones, so I suggest downloading the older shows now; you can delete them if you don't like them.

I find my podcasts by browsing around iTunes and the internet. If anyone has other suggestions, I'd be glad to take them.

Treat this Whip-Syllabub of a Post as a Perfect Nihility

In the course of reading Pauline Maier's excellent Ratification: The People Debate the Constitution, 1787-1788, I've run across some fun words I'm determined to work into conversations, as well as a nice little story.

Our first word is "nihility", which I particularly like as a former Classics major. The quotes are from a letter by none other than George Washington to John Jay, dated August 15, 1786, discussing the powerlessness of the Confederation Congress:

Requisitions [by the Confedration Congress for funds] were "a perfect nihility," he [Washington] wrote Jay in August 1786, and "if you tell the [state] Legislatures they have violated the treaty of peace [with Great Britain] and invaded the prerogatives of the confederacy they will laugh in your face. What then is to be done?"

Our second item is "whip-syllabub", as used by Rep. Aedanus Burke of South Carolina exactly three years later, on August 15, 1789, to describe the proposed amendments to the Constitution then being considered by the House of Representatives:

In the course of those extended debates [in the House during August 1789], critics insisted that the proposed amendments would never satisfy their constituents. Rather than "those solid and substantial amendments which the people expect," Aedanus Burke sad, the select committee's proposals were "whip-syllabub," an eighteenth-century dessert that was "frothy and full of wind, formed only to please the palate," not the stomach; or "like a tub thrown out to a whale" by sailors to divert it from attacking their ship.

And, finally, we have Amos Singletary, who provides not a word, but a witty repartee. Mr. Singletary, "a onetime gristmill owner" from Sutton, Massachusetts, served as a delegate to the January 1788 Massachusetts ratification convention, where he proved to be (in the phrase of a newspaper report) "as remarkable for his taciturnity, as his zeal for religion," hemming and wiping his brow before he explained his objections to "this here self same constitution."

But I digress. The story I meant to relate involving Mr. Singletary concerns "a story about him from a period long before 1788, when the town [of Sutton] was shaken by a religious revival."

A local manufacturer of hoes "being under concern of mind" caught sight of Singletary, who was a justice of the peace and an "earnest Christian," and called out to him: "O Squire! O Squire! What shall I do to be saved?" Singletary had scarcely brought his horse to a stop when he answered: "Put more steel in your hoes."

Amos Singletary "died in 1806, in his mid-eighties."

"The Goviner of the universe"

I've been reading Pauline Maier's fine Ratification: The People Debate the Constitution, 1787-1788 slowly and savoring it. I've also been reading it mostly backwards. I started at the beginning, but then skipped forward to New York, followed by Virginia, back to Pennsylvania, then forward to Connecticut and Massachusetts, which is where I am now.

Don't know what to make of this, however. Prof. Maier reports that the Massachusetts town of Ashfield, considering back in 1776 the form of government that the state should adopt, came up with a somewhat "unconventional" answer:

Massachusetts townsmen also had a proven capacity to think in unconventional ways. In 1776, for example, the people of Ashfield in western Massachusetts said they wanted no "Goviner but the Goviner of the universe and under him a States Ginaral to Consult with the wrest of the united States for the Good of the whole" . . ..

The lesson that Prof. Maier draws is that not all people in western Massachusetts - the neighborhood of Daniel Shays' Rebellion - were "die hard localists. Some, at least, had a powerful sense of national identity."

California and the Missouri Compromise Line

In the late 1840s, during the lead-up to the Compromise of 1850, some federal legislators argued that the prospective state of California should be divided in half and ultimately be admitted as two states. These were southerners, of course, who were proposing that the Missouri Compromise line be extended to the Pacific. The northern portion would be admitted as a free state; slavery would be permitted in the south.

It was not to be, because most northerners, and some southerners (including Louisiana slaveholder Zachary Taylor), objected, for a variety of reasons, and most of us would say that the good guys won that fight. But Lawprof Ilya Somin's recent post at Volokh makes me wonder: would we all not have been better off, at least in the long run, if proponents of the extension of the Missouri Compromise line had succeeded?

Dusk Descends

Hummingbird

We put up a hummingbird feeder the other week, and voila! Not flashy by tropical standards, but in northern New Jersey you take what you can get. Click to enlarge.

Richard Henry Lee, George Wythe, and the Constitutionality of Secession

The proposition that a state could ratify the Constitution, subject to the right to withdraw from the Union if desired amendments were not ratified thereafter, would seem to be fundamentally inconsistent with the idea that single-state secession was not permitted.

At least two leading Virginians did not, it seems, grasp this contradiction. Both Richard Henry Lee and George Wythe proposed such a device in order to gain ratification of the Constitution with amendments.

Richard Henry Lee was not a delegate to the Virginia Convention. His proposition came as private advice to anti-federalist delegate George Mason. Recognizing that requiring amendments before ratification would delay enactment of the Constitution at best, and perhaps torpedo it altogether, in early May 1788 Lee

counseled Mason to watch carefully so “the foes of union, order, and good government” did not “prevent our acceptance of the good part of the plan proposed.” After extensive reflection, he proposed that Virginia should ratify the Constitution but demand “such amendments as can be agreed upon” as statements of “their undoubted rights and liberties which they mean not to part with.” The amendments would be proposed and adopted using the procedures under Article V. However, if the amendments still had not been enacted two years after the new government began, Virginia would “be considered as disengaged from this ratification.”

Lee intended and assumed that his proposal would help get the Constitution ratified and that the “friends” of the Constitution (except perhaps those who were dead set against any amendments) would see it as such and favor his scheme:

That “friendly and reasonable” method, Lee said, would allow the new Congress to amend the Constitution “without risking the convulsion of new conventions,” gratify critics of the Constitution and also those Federalists who thought amendments were needed, harmonize the undetermined stated, and quiet the “formidable minorities” in states that had already ratified. Lee recommended his plan for Mason's “serious and patriotic attention.”

Toward the end of the next month, on Tuesday June 24, 1788, George Wythe – 62 years of age, Thomas Jefferson's early mentor (and later Henry Clay's), and one of the leading lawyers and jurists in the state – moved that the Virginia convention, sitting as Committee of the Whole, recommend that the Constitution be adopted. Wythe, too, seems not to have understood that an individual state could never withdraw from the Constitution once ratified, for his motion included a provision for post-adoption withdrawal:

Wythe then moved his main resolution: that, in the opinion of the committee of the whole, the Constitution should be ratified, and that the convention should recommend amendments to the first federal Congress. He perhaps asked that another committee draw up those amendments. According to Patrick Henry, the text of Wythe's motion, - which [David] Robertson did not include in his Debates [and Other Proceedings of the Convention of Virginia] – also said that Virginia's ratification would “cease to be obligatory” if the amendments the convention proposed were not enacted. If so, his motion had some similarity to what Richard Henry Lee had recommended to Mason in early May.

The next day, Wednesday June 25, 1788 – 223 years ago today – the Virginia convention voted to reject Patrick Henry's competing motion that the Constitution not be ratified before proposed amendments were presented to the other states. “It lost be eight votes: 80 delegates voted for it, 88 against. That was the critical vote.” “[B]etween two and three o'clock in the afternoon, the convention turned to the main question, Wythe's resolution that the Constitution 'be ratified.' It passed by ten votes, 89 for and 79 against.”

All quotes are from Pauline Maier's excellent Ratification: The People Debate the Constitution, 1787-1788.