Wednesday, November 13, 2013

Cicero on Cato the Younger

nam Catonem nostrum non tu amas plus quam ego; sed tamen ille optimo animo utens et summa fide nocet interdum rei publicae; dicit enim tamquam in Platonis πολιτείᾳ, non tamquam in Romuli faece sententiam.

Now you love our Cato as much as I do; and yet, with the best of intentions and in utter good faith, he sometimes does harm to the republic. For he expresses his views as if he were in Plato's Republic, not in the dregs of Romulus.

Monday, November 04, 2013

Pencil-long Eels vs. Giant Lampreys

Many people are prepared to go to increasingly extreme lengths to enhance their looks.

But the latest beauty fad, involving bathing in a tank of eels in order to exfoliate the skin, has been condemned by health inspectors as extremely dangerous.

The new treatment is just another in a bewildering array of beauty treatments currently making their way into spas and beauty salons, which experts say are often not regulated as they should be.

The technique, imported from China, involves immersing the full body into a bath of pencil-long eels – an extension of the fish pedicures that were popular in 2011.

Wendy Nixon, a health and safety consultant, last week told a conference hosted by the Chartered Institute for Environmental Health (CIEH), the body which represents health inspectors, that there were problems with the procedure, especially for those wearing loose-fitting swimwear.

"In one case a stray eel found its way through the man’s genitals and into his kidney, and he ended up needing a three-hour operation," Nixon told the conference. "This is the sort of procedure that is coming your way."

The alarming example is reportedly that of Zhang Nan, a 56-year-old man from Hubei province in China.

"I climbed into the bath and I could feel the eels nibbling my body," Mr Nan said shortly after the incident two years ago.

"But then suddenly I felt a severe pain and realised a small eel had gone into the end of my penis.
And it made me think of this:
This same year [15 BC] Vedius Pollio died, a man who in general had done nothing deserving of remembrance, as he was sprung from freedmen, belonged to the knights, and had performed no brilliant deeds; but he had become very famous for his wealth and for his cruelty, so that he has even gained a place in history.

Most of the things he did it would be wearisome to relate, but I may mention that he kept in reservoirs huge lampreys that had been trained to eat men, and he was accustomed to throw to them such of his slaves as he desired to put to death.

Once, when he was entertaining Augustus, his cup-bearer broke a crystal goblet, and without regard for his guest, Pollio ordered the fellow to be thrown to the lampreys.  Hereupon the slave fell on his knees before Augustus and supplicated him, and Augustus at first tried to persuade Pollio not to commit so monstrous a deed. Then, when Pollio paid no heed to him, the emperor said, "Bring all the rest of the drinking vessels which are of like sort or any others of value that you possess, in order that I may use them," and when they were brought, he ordered them to be broken.

When Pollio saw this, he was vexed, of course; but since he was no longer angry over the one goblet, considering the great number of the others that were ruined, and, on the other hand, could not punish his servant for what Augustus also had done, he held his peace, though much against his will.

Tuesday, October 15, 2013

"The total extinguishment of the debt" is "a fundamental maxim in the system of public credit of the United States"

To the congress of the United States, and in a particular manner to the representatives of the people in this house, the period of the total emancipation of the nation from the thraldom of a public debt, will be a moment of intense interest, and of heartfelt mutual gratulation.  To have co-operated in the accomplishment of this event, is a laudable object of ambition.  To have witnessed and contributed to its accomplishment during his own term of service, is a legacy of honor and integrity, which any public servant may be desirous of leaving for the memory of his children, and the gratitude of posterity.  As a monument of good faith, of active industry and strenuous exertion for the fulfilment of public engagements, it is an example of morality, well worthy of that community, which was also the first among the nations of the earth to lay the foundations of the government upon the basis of freedom and the unalienable rights of human kind.

The consummation of this purpose was indeed one of the great objects for which the constitution of the United States received its present organization.  The public debt had originated in and by the war of our national independence; but so feeble and inefficient was the confederation first formed for the government of the union, that its central power was incompetent to levy upon the people funds adequate even to discharge the interest as it became due upon the public obligations. . . .

Accordingly, no sooner had the government of the United States been organised under the present constitution, than the first object to which the attention of congress and of the executive were turned, was to devise means of providing for the payment of the public debt.  From that time, the principle of its total discharge, as soon as by a vigorous exercise of the resources of the union it might be rendered practicable, it was assumed; assumed after full and free deliberations, and in pointed preference to the doctrine then honestly entertained by a portion of the statesmen of the time, that a permanent public debt to a moderate extent and under judicious regulation would prove a public blessing.  Happily, a principle of deeper moral obligation and of sounder policy prevailed.  In the first report of the first secretary of the treasury to the house of representatives upon public credit, bearing date the 9th of January, 1790, within one year after the first meeting of the national congress, he adverted to this then controverted question of political economy in the following terms: "Persuaded, as the secretary is, that the proper funding of the present debt will render it a national blessing, yet he is so far from acceding to the position, in the latitude in which it is sometimes laid down, that public debts are public benefits, a position inviting to prodigality, and liable to dangerous abuse, that he ardently wishes to see it incorporated as a fundamental maxim in the system of public credit of the United States, that the creation of debt should always be accompanied with the means of EXTINGUISHMENT.  This he regards as the true secret for rendering public credit immortal."

And upon this principle was the public debt of the United States, burthensome as it then was, funded.  By the sanction which congress then gave to this lofty and honorable sentiment, the total extinguishment of the debt became incorporated as a fundamental maxim in the system of public credit of the United States.

Monday, October 14, 2013

Ironic Quote of the Day (1840 Edition)

"General [William Henry] Harrison will be our next President, if he lives until the fourth of March next [1841]," said the Hudson River Chronicle on November 10 [1840].  "Nothing but death can prevent this glorious result."

Harrison barely made it.  He died on April 4, 1841, having served one month in office.

The quote is from Alasdair Roberts' America's First Great Depression: Economic Crisis and Political Disorder After the Panic of 1837.

About the illustration, entitled Uncle Sam's Pet Pups! (1840):

A crude woodcut satire showing Harrison luring "Mother Bank," Jackson, and Van Buren into a barrel of "Hard Cider." Jack Downing chases Jackson and Van Buren toward the barrel as Mother Bank crawls into it. While Jackson and Van Buren sought to destroy the Bank of the United States, one of Harrison's election campaign promises was to reestablish it, hence his providing "Mother Bank" a refuge in this scene.

Sunday, October 13, 2013

"Yankee Doodle borrows cash, Yankee Doodle spends it . . ."

In the first half of the 1830s many of the states of the Union engaged in an orgy of spending to fund internal improvements - principally canals and railroads.  They financed most of the this spending by issuing or guaranteeing bonds, most of which were marketed and sold to investors in Europe, principally in Great Britain.  After an initial market decline that began in 1836 and manifested itself in early 1837, the markets recovered somewhat in 1838, only to collapse again into a deeper and more long-lasting depression beginning in 1839.

In the typical state project, revenues from the anticipated improvements (e.g., canal tolls or railroad freight charges) had optimistically been expected to fund payment of interest and ultimately repayment of the notes; the state guarantees would never be called on.  The Panic of 1837 and ensuing depression resulted in a collapse in revenues, assuming they had ever been realistic.  British and European bondholders demanded that the states honor their guarantees, while states realized that they could not do so without imposing unprecedented and ruinous taxation on their residents.

In the aftermath, during the early 1840s, no fewer than eight states (Michigan [about $5MM], Indiana [$10MM], Maryland [$14MM], Arkansas, Illinois, Mississippi, Pennsylvania [$40MM] and Louisiana [$24MM]) and one territory (Florida) defaulted on bonds with a face value totaling in excess of $100,000,000 and repudiated their guarantees.  British and other European bondholders were financially devastated.  And they lacked any legal recourse.   A combination of the Eleventh Amendment and state sovereign immunity made it impossible for foreigners to sue the states in either federal or state court.  The federal government was not a party to the transactions, lacked the power to intervene and, under president John Tyler, was not inclined to do so in any event.  The foreign holders were reduced to hurling invective at the states that had stolen their money.

All of which brings me to the point of this post, a wrenching but (softened by the passage of almost 170 years) amusing protest published in the London Literary Gazette in January 1845, to be sung to the tune of Yankee Doodle:

Yankee Doodle borrows cash,
Yankee Doodle spends it,
And then he snaps his fingers at
The jolly flat who lends it.

Ask him when he means to pay,
He shews no hesitation,
But says he'll take the shortest way,
And that's repudiation!

As a bonus: Did you know that Charles Dickens' December 1843 A Christmas Carol contains a brief reference to "a mere United States' security" as a synonym for worthless?

When Scrooge awoke, it was so dark, that looking out of bed, he could scarcely distinguish the transparent window from the opaque walls of his chamber. He was endeavouring to pierce the darkness with his ferret eyes, when the chimes of a neighbouring church struck the four quarters. So he listened for the hour.

To his great astonishment the heavy bell went on from six to seven, and from seven to eight, and regularly up to twelve; then stopped. Twelve! It was past two when he went to bed. The clock was wrong. An icicle must have got into the works. Twelve!

He touched the spring of his repeater, to correct this most preposterous clock. Its rapid little pulse beat twelve: and stopped.

“Why, it isn’t possible,” said Scrooge, “that I can have slept through a whole day and far into another night. It isn’t possible that anything has happened to the sun, and this is twelve at noon!”

The idea being an alarming one, he scrambled out of bed, and groped his way to the window. He was obliged to rub the frost off with the sleeve of his dressing-gown before he could see anything; and could see very little then. All he could make out was, that it was still very foggy and extremely cold, and that there was no noise of people running to and fro, and making a great stir, as there unquestionably would have been if night had beaten off bright day, and taken possession of the world. This was a great relief, because “three days after sight of this First of Exchange pay to Mr. Ebenezer Scrooge or his order,” and so forth, would have become a mere United States’ security if there were no days to count by.

About the illustration, entitled New Edition of MacBeth.  Bank-oh's! Ghost:

Another satire on the Panic of 1837, again condemning Van Buren's continuation of predecessor Andrew Jackson's hard-money policies as the source of the crisis. Clay shows the president haunted by the ghost of Commerce, which is seated at the far right end of a table which he shares with a southern planter (far left) and a New York City Tammany Democrat. Commerce has been strangled by the Specie Circular, an extremely unpopular order issued by the Jackson administration in December 1836, requiring collectors of public revenues to accept only gold or silver (i.e., "specie") in payment for public lands. The ghost displays a sheaf of papers, including one marked "Repeal of the Specie Circular," and notices of bank failures in New Orleans, Philadelphia, and New York. Van Buren recoils at the sight of the specter, exclaiming, "Never shake thy gory locks at me, thou can'st not say I did it." Jackson, in a bonnet and dress made of bunting, turns away saying, "Never mind him gentlemen, the creature's scared, and has some conscience left; but by the Eternal we must shake that out of him." Planter (a note reading "Cotton Planters Specie in "Purse." Alabama" protrudes from his pocket): "No credit. Huzza!!" Tammany Irishman (raising a glass): "Down with the Bank!!"

Friday, October 04, 2013

Is It Legitimate to Defund Obamacare? The Fourth Congress Says Yes

In all the hullaballoo over the debt ceiling and Obamacare negotiations (or non-negotiations) the Democrats have been complaining, among other things, that the Republican attempt to defund Obamacare is illegitimate. Obamacare, the Dems complain, is legislation that was duly enacted by Congress, signed by the president, and is now "the law of the land." The Republican House cannot in effect now sabotage duly enacted legislation through the back door by refusing to fund it.

As a buff of early US legal history, it immediately occurred to me that there was early - very early - historical precedent.  And that precedent, in the form of resolutions passed by the Fourth Congress in 1795, strongly suggests that Republicans are entirely within their rights to refuse to provide funding for Obamacare.

The fracas I have in mind arose out the Jay Treaty – a treaty with Great Britain negotiated by John Jay. President George Washington, who had sent Jay to England for that purpose, submitted the treaty to the Senate for its consent in June 1795. The merits of the proposed treaty were hotly contested. In a nutshell, President Washington and the Federalists urged approval as the best that could be achieved. The Democratic-Republicans grouped around Thomas Jefferson and James Madison viewed it as an abomination, both constitutionally unsound and humiliating.

To make a long story short, even some Federalists balked at one article containing onerous trade restrictions, but the Senate conditionally approved the treaty.  After Britain agreed to suspend the offending article, the president signed the treaty.

Then the action moved to the House of Representatives. When the president sought funds to cover expenses associated with the treaty (e.g., funds to cover the expenses of a commission established by the treaty), Rep. Edward Livingston (DR - NY) (pictured at the top of this post) offered a resolution requesting the President to provide the House with Jay’s instructions and other materials relevant to the treaty. “The debate on this resolution lasted an entire month and was one of the most impressive and fundamental ever conducted in Congress.” (All quotes are from David P. Currie’s wonderful The Constitution in Congress: The Federalist Period 1789-1801.)

Federalists argued that the House had no right to look into such matters because only the Senate and the president were constitutionally competent to approve and ratify treaties:
The House had no right to seek information, said Representative [William Vans] Murray (F - MD), without indicating how it related to some subject within the House’s purview. The House had nothing to do with treaties, since Article II, sec. 2 expressly empowered the President to make them with Senate consent. Impeachment, he acknowledged, would be a legitimate purpose, but as [Robert Goodloe] Harper [(F - SC)] noted no one had suggested that Jay or anyone else should be impeached.

Rep. Albert Gallatin of Pennsylvania (later President Jefferson’s and President Madison's Secretary of the Treasury) disputed the point, arguing (among other things) that the House “had a right to information because even if the treaty was valid it could not be carried out without appropriations, which under Article I, sec. 9 only a statue could provide.”

In reply, the Federalists made an argument akin to that made by Democrats now: in the face of a ratified treaty, the House had no discretion to refuse funding:
Not so, said the treaty’s supporters; Article VI made a treaty duly concluded the law of the land, as binding on the House as on anyone else. The House could no more refuse to implement a treaty than a tax collector could refuse to enforce the law; it might as plausibly withhold the salaries of the President and the judges or decline to call a constitutional convention at the request of two thirds of the states. Congressional discretion to refuse an appropriation, in short, would undermine the treaty power. 

The Democratic-Republicans submitted these contentions to withering abuse:
Wrong, said Pennsylvania’s John Swanwick; discretion was implied in every grant of legislative authority. To hold that the House was bound to vote funds to implement a treaty would destroy the appropriation power – which, [William Branch] Giles [(DR - VA)] added, was intended as a check on the powers given to other branches. The two-year limit on military appropriations, [James] Madison [(DR - VA)] noted in support of this conclusion, was designed to permit the people’s representatives to review on regular occasions the desirability of maintaining an army. The clauses expressly requiring payment of the salaries of the President and the judges [Art. II, sec. 1; Art. III, sec. 1], Gallatin explained, were narrow exceptions to the general principle. There was no comparable provision with respect to treaties; the supremacy clause served only to establish the subordinate status of state law and (in Swanwick’s words) “does not affect the power of this House, as a component part of the General Legislature, and authority of the United States.” Finally, Gallatin invoked British precedent: Though Blackstone described treaties as law, it was universally acknowledged that Parliament had discretion not to appropriate money to implement them. 

The lengthy and impressive debate ended in a dramatic victory for the Democratic-Republicans. “At length the House approved Livingston’s resolution by a lopsided vote of sixty-two to thirty-seven, suggesting that a substantial majority agreed that the House had discretion in implementing the treaty.” And when President Washington refused to turn over the requested information, the House adopted “by a similarly decisive vote,” another, similar resolution “affirming its discretion to refuse to implement and treaty affecting a subject within congressional power and its right to request information without giving reasons.”

The battle having been won, the war evaporated. The treaty, it turned out, was far more popular with constituents than the Democratic-Republicans had realized. Flooded with petitions urging Congress to appropriate the necessary funds, “a number of House opponents gave up the fight; having asserted its right not to appropriate money, the House voted to do so after all.”

Additionally, it is worth noting that Prof. Currie, reviewing the dispute, had no doubt but that the Democratic-Republican proponents of Congressional discretion were correct.  While I will not (out of respect for copyright laws and the reader’s patience) recite his reasoning at length, Prof. Currie concluded that “the appropriation power was intended as a check on other branches.” “Congress normally has discretion whether or not to appropriate funds.”  (Emphasis in original.)

Finally it is important to understand that the case for House discretion in funding legislation (Obamacare) is stronger than the case for such discretion in funding treaties such as the Jay Treaty. The Constitution provides that treaties are to be ratified by action of the Senate and the Executive; the House has no part to play. Legislation, of course, involves an interplay among both houses of Congress as well as the Executive. If the House has discretion to refuse to fund the implementation of treaties, with which it is otherwise unconcerned, then a fortiori it has the right and power to refuse to fund ordinary legislation, which forms its core function.


For a somewhat different approach to the Democratic argument that Obamacare is the "settled" "law of the land," see this interesting article by one of my favorite lawprof bloggers, Gerard Magliocca: Why Obamacare isn't "settled".

Monday, September 23, 2013

The Wit and Wisdom of Cato the Elder V

Marcus Porcius Cato the Elder (234BC-149BC) was a piece of work  Gotta love him.  Who else would toss a senator out of the Senate for embracing his wife in public while making jokes about his own "thundering" love life?  Plutarch explains in his Life of Cato the Elder:

[After having been elected Censor in 184BC] Cato expelled another senator who was thought to have good prospects for the consulship, namely, [Manius] Manilius, because he embraced his wife in open day before the eyes of his daughter.  For his own part, he [Cato] said, he never embraced his wife unless it thundered loudly; and it was a pleasantry of his to remark that he was a happy man when it thundered.
 For earlier installments of The Wit and Wisdom of Cato the Elder, see here.

Wednesday, September 11, 2013

Never Forget

Make no mistake, we are at war with untold numbers of barbarians who would kill us and rejoice if they could.  If we continue to pretend that our enemies are "moderates," civilization - and we - are lost.  Never forget.

Sunday, August 18, 2013

Varina Davis on Senator Thomas Hart Benton

For reasons unknown, I was leafing (virtually) the other day through Varina Davis's memoir of her late husband, Jefferson Davis, entitled (as you might expect) Jefferson Davis: Ex-President of the Confederate States of America (1890).  Mrs. Davis, it turns out, is an engaging writer with a knack for sketching lively portraits of many of the famous figures she encountered.

Here, for example, is an endearing story about Senator Thomas Hart Benton, which casts a softer light on the craggy and somewhat forbidding public persona of the pugnacious "Old Bullion" Benton:

[T]here was an hour in the day that came to be recognized as one that Mr. Benton would have.  About midday, or perhaps three o'clock, he always rose and left the [Senate] chamber to take his paralyzed wife out for an airing.  Generally he brought her, with infinite tenderness, to the Capitol grounds, seated her on a bench in a pleasant shade, and no young lover could try more sedulously than he to amuse and comfort her.  She seemed to be most happy when with him, and it was a familiar sight to see him picking flowers for her as they first peeped up in the early Spring.  He introduced me to a lady once - "Mrs. C., a friend of my wife's, madam; need I say more?

Saturday, June 08, 2013

Benjamin "Beast" Butler: Unlikely Liberator

Benjamin “Beast” Butler was not a great officer, but he did amass some notoriety during the war by, among other things, authorizing Union troops to treat women in New Orleans as prostitutes (which earned him that “Beast” designation) and later getting “bottled up” in the Bermuda Hundred. Most of all, he acquired some fame as the first Union officer who refused to return to their masters slaves who escaped to Union lines, on the theory that they were “contraband property of war.”

James Oakes book Freedom National: The Destruction of Slavery in the United States, 1861-1865 is a delight, not least for his recounting of incidents such as the circumstances under which Butler, having been exiled by Winfield Scott to Fortress Monroe at Hampton Roads, made and sought approval for his decision in May 1861.  But I enjoyed even more Oakes’ brief recap of Butler’s pre-war biography, which made him the most unlikely of liberators. A military wannabe who was unable to secure an appointment to West Point, Butler instead became a lawyer and Democratic politician in Massachusetts. In the late 1840s and early 1850s Butler flirted with Free Soil Democrats and Conscience Whigs, but later in the decade he returned to his Democratic roots, going so far as to support John Breckinridge for president in 1860:

Rather than embrace the new antislavery Republican Party, Butler went back to the Democrats. He campaigned for James Buchanan in 1856, endorsed the proslavery Lecompton Constitution for Kansas, supported the Dred Scott decision, and appealed to white workers with racial demagoguery. At his party’s tumultuous 1860 nominating convention in Charleston, South Carolina, Butler voted more than fifty times for Jefferson Davis and ended up supporting John Breckinridge, the proslavery Democrat. Butler even apologized for having once flirted with the Free Soil Party. The best that can be said of Butler’s antislavery record is that it was unimpressive.

As Oakes goes on to explain, secession and Fort Sumter – coupled, perhaps, with the opportunity to realize his long-suppressed dreams of a military career – turned Butler around. And having acquired the opportunity, Butler, although no great military man, was smart enough to understand the logic of war, and of the Republican Party:

[P]roperty of whatever nature, used or capable of being used for warlike purposes, and especially when being so used, may be captured and held either on sea or on shore as property contraband of war.

About the illustration at the top of the post, entitled The (Fort) Monroe Doctrine (1861):

On May 27, 1861, Benjamin Butler, commander of the Union army in Virginia and North Carolina, decreed that slaves who fled to Union lines were legitimate "contraband of war," and were not subject to return to their Confederate owners. The declaration precipitated scores of escapes to Union lines around Fortress Monroe, Butler's headquarters in Virginia. In this crudely drawn caricature, a slave stands before the Union fort taunting his plantation master. The planter (right) waves his whip and cries, "Come back you black rascal." The slave replies, "Can't come back nohow massa Dis chile's contraban." Hordes of other slaves are seen leaving the fields and heading toward the fort.

The second image is a pictorial envelope.  The figure says, "By golly massa Butler, I like dis better dan workin' in de field for ole Sesesh massa."

The third image is also a pictorial envelope, entitled Contraband of War; or, Volunteer Sappers and Miners From the "F.F.V." shows "African-American men with mining tools in-hand, volunteering to join the Union Army." The figures say, "Massa Butler, we's jest seceed from de 'meen-asses junction,' and wants to 'list in the counterband regiment. We's no great hands at fightin' , but we kin run 'most as fast as our old massas did toder night, Now, ef you wants any trenches or forti'cations made, we's de niggers to call upon in dat ar line."   "F.F.V." seems to refer to First Families of Virginia.

In the fourth image, an "African-American boy clings to the leg of General Butler. Butler extends his sword to fend-off slave owner with whip and dog."  General Butler says, "can't see it."

The fifth image is an 1861 print on an envelope that

shows a slave at the Union fort taunting his plantation master. The planter (left) waves his whip and cries, "Come back you black rascal." The slave replies, "Can't come back nohow massa Dis chile's contraban." Other slaves are seen leaving the fields and heading toward the fort. On May 27, 1861, Benjamin Butler, commander of the Union army in Virginia and North Carolina, decreed that slaves who fled to Union lines were legitimate "contraband of war," and were not subject to return to their Confederate owners. The declaration precipitated scores of escapes to Union lines around Fortress Monroe,

What the Hell Happened to William Seward? A Followup

In What the Hell Happened to William Seward? I explored William Seward's pre-Civil War reputation for anti-slavery radicalism in light of his surprisingly conciliatory approach in the years immediately before the war and particularly his frantic attempts to keep the upper South in the Union during the late winter and spring of 1860.  In brief, I wondered whether Seward's earlier radical reputation wasn't overblown:

So where does this leave me? I'm not sure. As this post suggests, I guess I'm inclined to see more continuity than disjunction - more conservatism and caution underlying a radical image from fairly early on. Most people become more conservative as they grow older, but the change tends to be moderate and evolutionary. The evidence, however, is fairly thin and ambiguous, and there's always the concern that I'm reading more in earlier events because I know what will come later.

In his book Freedom National: The Destruction of Slavery in the United States, 1861-1865, James Oakes comes at Seward from a somewhat different angle.  Oakes suggests that Seward was prepared to be conciliatory toward the South in the months immediately preceding the war because he, like many Republicans at the time, fervently believed that Lincoln's election meant that slavery was as good as dead.  Since the war against slavery was already won, why engage in needless antagonism?

Even more than most Republicans, Seward was convinced that the mere election of Lincoln signaled the overthrow of the Slave Power and with it the inevitable destruction of slavery. . . . Now that the hour of slavery’s demise was at hand, the only thing Republicans had to do was hold the Union together until Lincoln’s inauguration. There would be no need for any “overt act” against slavery because slavery was doomed anyway.


Republicans in general, and Seward in particular, believed that slavery’s fate was already sealed by their electoral victory. Convinced that slavery could be abolished peacefully, the conciliators urged fellow Republicans to speak as softly as possible – perhaps say nothing at all. Why add fuel to the secessionist fire? . . . There was no need for war because the Slave Power had been dislodged and federal policy was about to shift in a dramatically antislavery direction.

Oakes emphasizes that, although Seward “assumed” a “conciliatory posture,” he steadfastly refused “to compromise basic Republican principles.” If anything, “Seward [was] willing to conciliate because [he was] not willing to compromise."

While Oakes’s broader point that Seward “believed that slavery’s fate was already sealed” may be correct, I do not think it fully explains Seward’s actions in the period. For one thing, although Seward may not have compromised “basic Republican principles,” he came perilously close to doing so.  As I pointed out in my earlier post, as early as November 1860, Seward seems to be have been in cahoots with Thurlow Weed when Weed floated a trial balloon proposing to strengthen the Fugitive Slave Act and extend the old Missouri Compromise line.

More broadly, Oakes fails to account for the frantic desperation that Seward displayed in dealing with the border states and the Confederate commissioners, desperation that was so frantic that he misled the all parties in one way or another - a fact to which Oakes briefly alludes in part but glosses over (emphasis added):

So fervently did Seward believe that war was unnecessary to destroy slavery that he made heroic but misleading efforts cultivate unionists in the Upper South in a desperate attempt to limit the scope of secession to the Deep South.

About the illustration, entitled The Abolition Catastrophe, Or the November Smash-up (1864):

 Lincoln's support of abolition is portrayed here as a liability in his race to the White House against Democratic candidate George B. McClellan. At top a smoothly run train "Union" heads straight for the White House. The engine is labeled "Democracy" and the first car, in which McClellan stands in the role of engineer, flies a flag "Constitution." The other cars are labeled "Union" and are occupied by happy, cheering Democrats. McClellan taunts, "Wouldn't you like to swap horses now? Lincoln?" (probably a reference to Lincoln's replacement of him as commander of the Army of the Potomac). Several of his passengers comment on the wreck of the Republican train below: "H-ll, H ll, I'm used to Railroad accidents but that beats Vibbards all to smash." New York governor Horatio Seymour: "I thought little Mac could take the train through better than I could." "It's no use talking Ben [Union general Benjamin F. Butler]! I told you I was on the right train . . . thunder there's John McKeon [prominent Democrat and New York lawyer ] with us." "Little Mac is the boy to smash up all the Misceganationists." "Politics does make strange bed fellows . . . the d . . . l if there aint Fernandy!" "Fernandy" is Fernando Wood, prominent Peace Democrat and mayor of New York. "Good-bye Horace [Horace Greeley]! Nigger on the brain flummoxed you." "Thus ends the Abolition Party!" "Be the powers the gintleman with his pantaloons in his bootleg is having a high time of it." "Good-bye old Greenbacks!" to Salmon P. Chase, who leaves with a satchel at right. Chase, who resigned his post as secretary of the treasury on June 29, says, "Thank God, I got off that train in the nick of time." In contrast, Lincoln's train, below, is far behind after having crashed on rocks "Confiscation," "Emancipation," "$400,000,000,000 Public Debt," "To Whom It May Concern," and "Abolitionism." Lincoln himself is hurled into the air, and says, "Dont mention it Mac, this reminds me of a . . ." This reference is to Lincoln's rumored penchant for telling humorous stories at inappropriate moments. (See "The Commander-in-Chief Conciliating the Soldier's Votes," no. 1864-30.) "Tribune" publisher and abolitionist Horace Greeley, also in the air, says, "I told you Abe that 'To whom it may concern' would be the death of us." (See "The Sportsman Upset by the Recoil of His Own Gun," no. 1864-31.) A black man crushed in the wreck accuses Lincoln, "Wars de rest ob dis ole darkey? Dis wot yer call 'mancipation'?" Another black man hurtles through the air, retorting, "Lor Amighty Massa Linkum, is dis wot yer call 'Elewating de Nigger'?" Secretary of War Edwin Stanton, hanging out of the train, moans, "Oh! dear! If I could telegraph this to Dix I'd make it out a Victory." Preacher and abolitionist Henry Ward Beecher holds a black child to his breast and prays, "Oh! my brethering! Plymouth Church will try to save the Platform." The notorious Union general Ben Butler exclaims, "H--ll! I've Preyed $2,000,000 already!" The four clean-shaven men in the train are identifiable as Massachusetts senator Charles Sumner, New York journalist and state political leader Thurlow Weed, Secretary of State William Seward, and John McKeon. Sumner: "Say Seward will praying save us?" Seward: "Oh! I'm a goner! Ask Thurlow, he's my spiritual Adviser." Weed: "Pray! yes, pray Brother, Butler will lead." At left Maximilian, puppet emperor of Mexico, confers with John Bull and Napoleon III of France, saying, "Oh Main Got'vi I vas send over to dis land of Greasers to pe chawed up py de Yankees." John Bull's opinion is ". . . This will never do. The Monroe doctrine must be put down." Napoleon III says, ". . . by Gar, if dat train gets to de White House, its all up with my Mexico." During the Civil War, Napoleon III tried to establish a puppet state in Mexico under Emperor Maximilian. At bottom left are prices and ordering instructions for obtaining copies of the print.

Monday, June 03, 2013

Of Guelzo, Gettysburg, Meade and Natural Born Citizenship

Over at Bull Runnings, Harry Smeltzer has a great interview with Prof. Allen C. Guelzo of Gettysburg College on the occasion of the release of Prof. Guelzo’s new book on the Battle of Gettysburg, entitled Gettysburg: The Last Invasion. Prof. Guelzo is a fine writer and a wonderful speaker, but I hadn’t considered reading yet another Gettysburg book until I saw the interview.

While I won’t supply too many spoilers, I particularly enjoyed Prof. Guelzo’s take on George Gordon Meade. I, like most people, I suspect, have never given much thought to his personality or political views. Other than being aware of the old “Snapping Turtle” sobriquet, suggesting a short temper and perhaps a didn’t-suffer-fools-gladly outlook, I didn’t give him much thought, assuming he was an apolitical do-your-duty career officer type in the best Army tradition. Prof. Guelzo, however, paints a startling portrait of a McLellanesque Democrat who believed that radical Republicans were intentionally prolonging the war and who was not above giving advice to the Confederate peace commissioners on the talking points they should use in their negotiations. Yikes!

I do, however, want to correct, and at the same time reassure, Prof. Guelzo on one point. In the interview, Professor G (if I may be so familiar) asserts that he became a “harmless drudge” writing history after he learned that he could not become president:

I am an Army brat (born in Yokahama, Japan; when I discovered in 5th grade that this disabled me constitutionally from being president, I was left with nothing better to do in life than write history).

Well, Professor G, assuming (as I do) that your mother was a United States citizen at the time of your birth, you are wrong. A child born of an American citizen is constitutionally eligible to become president even if he or she is not born on U.S. soil. Here is an excerpt from a post by NRO’s Ed Whelan on the subject:

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are U.S. citizens ‘at birth’ or ‘by birth,’ . . . under existing federal statutory law incorporation long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth – as distinguished from someone who is naturalized later in life as a citizen

So no more books about the Civil War or that boring old Abraham Lincoln, Professor G. 2016 awaits!

Sunday, June 02, 2013

Was Slavery on the Way Out in 1860? The Republican Plan

In a series of posts written a number of years ago, I argued that slavery was a thriving institution in 1860 and that there was every reason to think that, but for the Civil War, it would have continued indefinitely,  See Was Slavery on the Way Out in 1860?  Was Slavery on the Way Out in 1860? II  Was Slavery on the Way Out in 1860? III and Was Slavery on the Way Out in 1860? Prof. Freehling Says No!. I also made the same argument in a thread at Civil War Talk called (strangely enough) Was Slavery on the Way Out?

In the intervening years I have not run across any counter-arguments that have caused me to alter that opinion, and James Oakes' fine new book Freedom National: The Destruction of Slavery in the United States, 1861-1865 only reinforces that view.  As Oakes describes it, on the eve of the secession crisis, Republicans optimistically expected that they would be able to set slavery on the path to extinction using a Freedom National-Slavery Local approach consisting of the following elements:

- Ban slavery from the territories and the District of Columbia (the former would require reversing Dred Scott).

- No admission of new slave states.

- "A number of Republicans also proposed that the federal government purchase and then emancipate all the slaves in the Border States."

- "The most radical Republicans" "would restore 'free speech' to the South" by reversing the Jacksonian era practice of permitting postmasters to refuse to deliver abolitionist mail directed to the slave states.

- Other radical Republicans wanted to regulate the domestic slave trade "by taxing every slave sold across state lines and outlawing the coastwise entirely."

Republicans expected this program to succeed because they were convinced that slavery was an economically backward relic:
Even shorn of its more radical elements, the basic Republican goal remained the same: Pressed down into the Gulf States, denied access to fresh western soils, and deprived of the life-giving support of federal power, slavery even in the cotton South would eventually become unprofitable, maybe even dangerous.  Slavery's intrinsic weaknesses would become steadily more apparent.  The blight of economic backwardness would spread across the South, its arrogant aristocracy would become ever more disdainful of democracy, and the slaves would become increasingly restless and insurrectionary.  A homegrown antislavery movement would spring up within the slave states.  It might take awhile, although most Republicans expected that abolition, accelerating over time, would be accomplished within a generation.

But the evidence suggests, I believe, that Republicans profoundly misunderstood and underestimated both the institution of slavery and the attitudes of white southerners.  Slavery was not economically moribund, and southern whites, rich and poor alike, were deeply invested in it, as their tenacious defense of the institution, both during and the after the war, was to show.  In light of these considerations, the Republican program was thin gruel indeed.

About the illustration, entitled The National Game. Three "Outs" and One "Run" (New York, Currier & Ives, 1860):
A pro-Lincoln satire, deposited for copyright weeks before the 1860 presidential election. The contest is portrayed as a baseball game in which Lincoln has defeated (left to right) John Bell, Stephen A. Douglas, and John C. Breckinridge. Lincoln (right) stands with his foot on "Home Base," advising the others, "Gentlemen, if any of you should ever take a hand in another match at this game, remember that you must have a good bat' and strike a fair ball' to make a clean score' & a home run.'" His "good bat" is actually a wooden rail labeled "Equal Rights and Free Territory." Lincoln wears a belt inscribed "Wide Awake Club." (See no. 1860-14 on the Wide-Awakes.) A skunk stands near the other candidates, signifying that they have been "skunk'd." Breckinridge (center), a Southern Democrat, holds his nose, saying, "I guess I'd better leave for Kentucky, for I smell something strong around here, and begin to think, that we are completely skunk'd.'" His bat is labeled "Slavery Extension" and his belt "Disunion Club." At far left John Bell of the Constitutional Union party observes, "It appears to me very singular that we three should strike foul' and be put out' while old Abe made such a good lick.' Bell's belt says "Union Club," and his bat "Fusion." Regular Democratic nominee Douglas replies, "That's because he had that confounded rail, to strike with, I thought our fusion would be a short stop' to his career." He grasps a bat labeled "Non Intervention."

Saturday, May 25, 2013

Did Congress Have Power to Ban the Interstate Sale and Transportation of Slaves?

In an important new article, “To Regulate,” Not “To Prohibit”: Limiting the Commerce Power, Barry Friedman and Genvieve Lakier argue that the Commerce Clause of the United States Constitution does not grant to Congress the power to prohibit interstate commerce.  In the process, the authors shed light on a fascinating historical question: why didn’t southern founders foresee that the Commerce Clause would give Congress the power to strangle slavery by banning the interstate sale and transportation of slaves?  And why did northern antislavery advocates likewise not recognize that the Commerce Clause gave them this powerful weapon until the Missouri Debates of 1819, more than thirty years after ratification?  The answer to both questions, the authors powerfully argue, is that it was generally recognized that the Constitution granted no such power to Congress.

By way of background, the Commerce Clause of the Constitution grants Congress the power to “regulate” both foreign commerce and commerce among the several states.  Article I Section 8 succinctly provides:
The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
There is no doubt that the power to “regulate” foreign commerce was intended and understood to ban such commerce altogether – witness the Migration or Importation Clause, which denied to Congress the power to ban the importation of slaves until 1808:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Had the power to regulate foreign commerce not included the power to prohibit it, the Migration or Importation Clause would have been unnecessary.  And, as the authors detail, the fact that the same verb – “regulate” – defines Congress’s power over both foreign and interstate commerce has led modern courts and commentators to assume that the Constitution similarly granted to Congress the power to prohibit interstate commerce.

But a closer inspection of the history, the authors argue, demonstrates that the founders intended and members of the founding era understood that the same language granted dramatically different powers.  In large part, this was the result of the fact that Congress was granted power over foreign and interstate commerce to facilitate dramatically different purposes.  Power over foreign commerce would allow the states to present a united front against aggressive mercantilist powers such as England by, for example, prohibiting entry of goods or vessels into U.S. ports.  Power over interstate commerce, in contrast, was granted to facilitate that commerce by restricting protectionist and discriminatory state trade policies that had proliferated under the Articles of Confederation.

Ironically, the treatment of and debates over the importation of slaves provide perhaps the single most compelling evidence of the differing understandings of the two clauses in the founding era.  Delegates at the Philadelphia Convention immediately identified the threat that the power over foreign commerce presented to the continued importation of slaves, and delegates from Georgia and South Carolina fought bitterly to avoid that result, going so far as to “threaten[] to walk out of the convention if their concerns on this score were not addressed.”  All of which resulted in the adoption of the Migration or Importation Clause, barring any restriction on the importation of slaves until 1808.

In contrast, “Southern delegates were noticeably silent about that possibility that Congress would use its domestic commerce powers to restrict or prohibit the interstate sale or transport of . . . slaves.”
Southern ratifying conventions were likewise oblivious of any danger from that quarter, to a man: As the historian David Lightner notes [in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War], “[a]lthough the Antifederalists racked their brains to conjure up every possible objection to the Constitution, not one of them ever suggested that it opened the way for Congress to restrict the interstate movement of slaves."  Any number of historians have interpreted the silence of the Southern states on this issue as decisive proof that Congress’s interstate commerce powers were not intended by the Framers to empower Congress to prohibit the interstate sale or transport of slaves, or anything else.
Likewise, subsequent debates over slavery-related issues are a primary example of the continuing understanding in the Nineteenth Century that Congress lacked power to prohibit the interstate trade in slaves. A handful of “worried Southerners” first expressed their concern that Congress might attempt to ban interstate sale of slaves in 1807 during the debates over the importation ban passed that year. But the argument did not occur to anti-slavery advocates until the Missouri Crisis:
It was not until the 1819-1819 debates about whether slavery would be permitted in the new state of Missouri that slavery abolitionists came up with the argument that Congress had the constitutional authority to ban the interstate sale as well as the importation of slaves.  The fact that it took thirty years for abolitionist groups to recognize that the Commerce Clause could be interpreted to vest Congress with the same power to prohibit the interstate as the foreign slave trade suggests how strongly the assumption of the Founding Era generation dictated the opposite conclusion.

The Missouri Controversy also prompted James Madison to weigh in on the issue. In a November 27, 1819 letter to Robert Walsh, Madison argued that the evidence from the founding era and thereafter made clear that Congress did not have the power to ban the "removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States;"
But whatever may have been intended by the term "migration" or the term "persons," it is most certain, that they referred exclusively to a migration or importation from other countries into the U. States; and not to a removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States.  Nothing appears or is recollected that warrants this latter intention.  Nothing in the proceedings of the State conventions indicates such a construction there.  Had such been the construction it is easy to imagine the figure it would have made in many of the states, among the objections to the constitution, and among the numerous amendments to it proposed by the State conventions not one of which amendments refers to the clause in question.
Neither is there any indication that Congress have heretofore considered themselves as deriving from this Clause a power over the migration or removal of individuals, whether freemen or slaves, from one State to another, whether new or old: For it must be kept in view that if the power was given at all, it has been in force eleven years over all the States existing in 1808, and at all times over the States not then existing.  Every indication is against such a construction by Congress of their constitutional powers.  Their alacrity in exercising their powers relating to slaves, is a proof that they did not claim what they did not exercise.  They punctually and unanimously put in force the power accruing in 1808 against the further importation of slaves from abroad.  They had previously directed their power over American vessels on the high seas, against the African trade.  They lost no time in applying the prohibitory power to Louisiana, which having maritime ports, might be an inlet for slaves from abroad.  But they forebore to extend the prohibition to the introduction of slaves from other parts of the Union.  They had even prohibited the importation of slaves into the Mississippi Territory from without the limits of the U S in the year 1798, without extending the prohibition to the introduction of slaves from within those limits; altho' at the time the ports of Georgia and S Carolina were open for the importation of slaves from abroad, and increasing the mass of slavery within the U. States.
Ten years later, in a February 13, 1829 letter to Joseph C. Cabell, “Madison made even more explicit his view that the domestic and foreign commerce clauses were neither intended, nor should be construed, as vesting Congress with equivalent power."  Referring to "the 'power to regulate commerce among the several States,'" Madison asserted:
I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

Sunday, April 07, 2013

Millard Fillmore, Badass

Over at the Daily Caller they have produced a Top Ten List of the most badass American political names.  And there, lo and behold, is Millard in all his glory, with the following explanation:
Millard Fillmore - just an all around American bad ass.  No further explanation needed.
As Glenn Reynolds would say, Heh.

Sunday, March 24, 2013

How Dagger John Saved New York's Irish

Do you know John Hughes?  The excellent City Journal site is currently featuring a wonderful older (but new to me) article on New York's first Catholic Archbishop: How Dagger John Saved New York's Irish.
We are not the first generation of New Yorkers puzzled by what to do about the underclass. A hundred years ago and more, Manhattan’s tens of thousands of Irish seemed a lost community, mired in poverty and ignorance, destroying themselves through drink, idleness, violence, criminality, and illegitimacy. What made the Irish such miscreants? Their neighbors weren’t sure: perhaps because they were an inferior race, many suggested; you could see it in the shape of their heads, writers and cartoonists often emphasized. In any event, they were surely incorrigible.

But within a generation, New York’s Irish flooded into the American mainstream. The sons of criminals were now the policemen; the daughters of illiterates had become the city’s schoolteachers; those who’d been the outcasts of society now ran its political machinery. No job training program or welfare system brought about so sweeping a change. What accomplished it, instead, was a moral transformation, a revolution in values. And just as John Wesley, the founder of Methodism in the late eighteenth century, had sparked a change in the culture of the English working class that made it unusually industrious and virtuous, so too a clergyman was the catalyst for the cultural change that liberated New York’s Irish from their underclass behavior. He was John Joseph Hughes, an Irish immigrant gardener who became the first Catholic archbishop of New York. How he accomplished his task can teach us volumes about the solution to our own end-of-the-millennium social problems.

Highly recommended.

Thursday, March 21, 2013

Happy Birthday, Johann!

I'm never sure when to celebrate Johann Sebastian Bach's birthday, since he was born on March 21, 1685 (o.s) and March 31, 1685 (n.s.). That uncertainty notwithstanding, happy birthday, Mr. B!

Wednesday, March 20, 2013

The Epistle of Barnabas

The Epistle of Barnabas was reportedly in the running to be a book of the New Testament.  It's a good thing it lost.  Apart from the fact that it's an intensely anti-Jewish screed, which would have made Jewish-Christian reconciliation even more difficult, Christians would have been saddled with a bunch of absurd folk tales.

Among other things, Barnabas claims that the Jews profoundly misunderstood  the laws of Moses.  Take the dietary laws, for instance.  God wasn't talking literally, you idiots, he was speaking metaphorically.  You can eat hare, for example, just don't grow multiple orifices like those slutty hares do:
Barnabas 10:6
Moreover thou shalt not eat the hare. Why so? Thou shalt not be found a corrupter of boys, nor shalt thou become like such persons; for the hare gaineth one passage in the body every year; for according to the number of years it lives it has just so many orifices.
The hyena, it turns out, is a sex change artist:
Barnabas 10:7
Again, neither shalt thou eat the hyena; thou shalt not, saith He, become an adulterer or a fornicator, neither shalt thou resemble such persons. Why so? Because this animal changeth its nature year by year, and becometh at one time male and at another female.
And the weasel apparently takes oral sex to a whole new level:
Barnabas 10:8

Moreover He hath hated the weasel also and with good reason. Thou shalt not, saith He, become such as those men of whom we hear as working iniquity with their mouth for uncleanness, neither shalt thou cleave unto impure women who work iniquity with their mouth. For this animal conceiveth with its mouth.

Tuesday, March 19, 2013

Was James Madison Fibbing?

In the latter part of July 1788, the convention convened in Poughkeepsie to determine whether New York would ratify the United States Constitution was approaching conclusion.  Several days earlier, on July 17, 1788, anti-Constitution delegate Melancton Smith had proposed that the delegates ratify the Constitution.  But there was a significant catch: New York would expressly reserve the right to recede if the new Congress did not authorize, within a specified number of years, a convention under Article V for the consideration of amendments.  Smith's motion provided in relevant part (emphasis added):

[T]he Convention . . . have therefore agreed to assent to and ratify the said Constitution in the firmest confidence that an opportunity will be speedily given to revise and amend the said Constitution, in the mode pointed out in the fifth article thereof, expressly reserving nevertheless to this state a right to recede and withdraw from the said Constitution, in case such opportunity be not given within ____ years.

James Madison was then in New York City, having recently come from Virginia, where he had successfully led the pro-Constitution forces to victory at that state's ratification convention in late June.  On July 20, 1788, Madison wrote a response to a letter he had received from Alexander Hamilton in Poughkeepsie, in which Hamilton somewhat sheepishly advised Madison that he was inclined to go along with Smith's proposal as the best that could be done.  Madison fired back a letter in which he advised that Smith's proposal was unacceptable and had to be rejected (bold added):

To Alexander Hamilton
N. York Sunday Evening [July 20, 1788]

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.

[P.S.] This idea of reserving [a] right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.
This post focuses on Madison's postscript, in which he stated that the Virginia Convention had considered "[t]his idea of reserving right to withdraw" similar to that proposed by Melancton Smith and had rejected it on the grounds that it was "a conditional ratification which was itself considered as worse than a rejection."  The bottom line question: was Madison's assertion true?  Or was Jemmy fibbing?

Madison's postscript in fact contains two assertions: (1) Did the Virginia Convention consider the reservation of a right to withdraw akin to Smith's?  And (2) Did the Virginia Convention reject it because it was a conditional ratification worse than a rejection?  We consider each in turn.

George Wythe's Motion

In her fine book Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier identifies one instance in which the idea of ratification subject to a right to withdraw may have been presented at the Virginia Convention.

On Tuesday June 24, 1788 George Wythe took the floor of the Convention, then sitting as a committee of the whole, and moved for ratification.  The motion, however, was "complex."  Among other things, it described a number of essential rights that could not be abridged under the Constitution, such as liberty of conscience and freedom of the press.  It also specified (in the words of Prof. Maier) "that any imperfections in the Constitution should be addressed through the amending process it prescribed rather than endanger the union by seeking previous amendments."

Although the record is unclear, Wythe may also have proposed that Virginia's ratification would "cease to be obligatory" if recommended amendments were not acted on within two years:

Wythe then moved to his main resolutions: that, in the opinion of 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 another committee draw up those amendments.  According to Patrick Henry, the text of Wythe's motion, which [David] Robertson [the Reporter of the Convention] did not include in the Debates - also said that Virginia's ratification would "cease to be obligatory" if the amendments the convention proposed were not enacted.
A look at Volume 3 of Elliot's Debates confirms that the official report of the Virginia Convention did not, in fact, include a right of withdrawal in Wythe's motion.  However, the reporter himself admitted that Wythe "spoke so very low that his speech could not be fully comprehended."  For the record, here is Wythe's speech as recorded.  I have added additional paragraph breaks; the emphases are in the original:

Mr. WYTHE arose, and addressed the chairman; but he spoke so very low that his speech could not be fully comprehended.

He took a cursory view of the situation of the United States previous to the late war, their resistance to the oppression of Great Britain, and the glorious conclusion and issue of that arduous conflict. To perpetuate the blessings of freedom, happiness, and independence, he demonstrated the necessity of a firm, indissoluble union of the states. He expatiated on the defects and inadequacy of the Confederation, and the consequent misfortunes suffered by the people. 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 then recurred to the system under consideration. He admitted its imperfection, and the propriety of some amendments. But the excellency of many parts of it could not be denied by its warmest opponents. He thought that experience was the best guide, and could alone develop its consequences. Most of the improvements that had been made in the science of government, and other sciences, were the result of experience. He referred it to the advocates for amendments, whether, if they were indulged with any alterations they pleased, there might not still be a necessity of alteration.

He then proceeded to the consideration of the question of previous or subsequent amendments. The critical situation of America, the extreme danger of dissolving the Union, rendered it necessary to adopt the latter alternative. He saw no danger from this. It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states.

He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.

However, Prof. Maier correctly observes that Patrick Henry's subsequent remarks appear to confirm that he, at least, heard Wythe propose some sort of right to withdraw.  After Wythe concluded, Henry, the leader of the Anti forces at the convention, immediately rose to urge that Virginia should refuse to ratify the Constitution without prior amendments.  What responsible party, Henry argued, would enter into a compact without first obtaining assurances on the most critical points?  In this context, Henry indicated that (emphasis added):

According to the honorable member's proposal, the ratification will cease to be obligatory unless they accede to these amendments.  We have ratified it.  You have committed a violation, will they say.  They have not violated it.  We say, we will go out of it.  You are then reduced to a sad dilemma--to give up these three rights [Henry also complained that Wythe had identified only three rights as having been omitted], or leave the government.  This is worse than our present Confederation, to which we have hitherto adhered honestly and faithfully.  We shall be told we have violated it, because we have left it for the infringement and violation of conditions which they never agreed to be a part of the ratification.  The ratification will be complete.  The proposal is made by the party.  We, as the other, accede to it, and propose the security of these three great rights; for it is only a proposal. In order to secure them, you are left in that state of fatal hostility which I shall as much deplore as the honorable gentleman.  I exhort gentlemen to think seriously before they ratify this Constitution, and persuade themselves that they will succeed in making a feeble effort to get amendments after adoption.  

On balance, then, it appears that Madison did correctly relate "[t]his idea of reserving right to withdraw was started at Richmd."  But what about Madison's second assertion - that the "idea of reserving right to withdraw" was "considered as a conditional ratification which was itself considered as worse than a rejection"?  For the answer to that question, let's look at what became of Wythe's proposal.

The Response to Wythe's Proposal

As we have seen, Patrick Henry immediately attacked Wythe's proposal on the grounds that anything other than prior amendments would be ineffective and foolish:
With respect to subsequent amendments, proposed by the worthy member, I am distressed when I hear the expression. It is a new one altogether, and such a one as stands against every idea of fortitude and manliness in the states, or any one else. Evils admitted in order to be removed subsequently, and tyranny submitted to in order to be excluded by a subsequent alteration, are things totally new to me. But I am sure the gentleman meant nothing but to amuse the committee. I know his candor. His proposal is an idea dreadful to me. I ask, does experience warrant such a thing from the beginning of the world to this day? Do you enter into a compact first, and afterwards settle the terms of the government?


I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. I fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows: When men are free front restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community Will seize with avidity every thing you hold. In this unhappy situation, what is to be done? It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

Henry's long (pp. 587-596) and vehement speech allowed the pro-Constitution forces to focus the substance of his proposed amendments and the danger of requiring that they be incorporated into the Constitution as a condition of ratification - while avoiding Wythe's proposal altogether.  Governor Edmund Randolph followed Henry's speech with an equally long speech of his own, in which he contrasted the catastrophe of conditional ratification with the efficacy of post-ratification recommended amendments, never once mentioning Wythe's compromise:
What are we about to do? To make this [prior amendments] the condition of our coming into this government. I hope gentlemen will never agree to this. If we declare that these amendments, and a bill of rights containing twenty articles, must be incorporated into the Constitution before we assent to it, I ask you whether you may not bid a long farewell to the Union? It will produce that deplorable thing--the dissolution of the Union--which no man yet has dared openly to advocate. . . .  Let gentlemen seriously ponder the calamitous consequences of dissolving the Union in our present situation. I appeal to the great Searcher of hearts, on this occasion, that we behold the greatest danger that ever happened hanging over us; for previous amendments are but another name for rejection. They will throw Virginia out of the Union, and cause heartaches to many of those gentlemen who may vote for them.

But let us consider things calmly. Reflect on the facility of obtaining amendments if you adopt, and weigh the danger if you do not. Recollect that many other states have adopted it, who wish for many amendments. I ask you if it be not better to adopt, and run the chance of amending it hereafter, than run the risk of endangering the Union. The Confederation is gone; it has no authority. If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose, and anarchy and discord will complete the ruin of this country. Previous adoption will prevent these deplorable mischiefs. The union of sentiments with us in the adopting states will render subsequent amendments easy. I therefore rest my happiness with perfect confidence on this subject.
When Madison himself rose somewhat later (pp. 616-622) that same day, he likewise ignored Wythe's compromise, framing the choice as one between ratification with suggested amendments and requiring "certain alterations, as the previous condition of [Virginia's] accession":
Suppose eight states only should ratify, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposition, which is the most favorable conclusion, the difficulty attending it will be immense. Every state which has decided it, must take up the subject again. They must not only have the mortification of acknowledging that they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it. They must attend to all the amendments, which may be dictated by as great a diversity of political opinions as there are local attachments. When brought together in one assembly, they must go through, and accede to, every one of the amendments.

The gentlemen who, within this house, have thought proper to propose previous amendments, have brought no less than forty amendments, a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments? And suppose them to be contradictory! I leave it to this Convention whether it be probable that they can agree, or agree to any thing but the plan on the table; or whether greater difficulties will not be encountered than were experienced in the progress of the formation of the Constitution.


I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union.
Wythe's proposal never resurfaced.  The next day, Wednesday June 25, 1788, after further unrelated debate, the Virginia Convention, sitting as committee of the whole, rejected, by a vote of 80 to 88, a resolution requiring the submission of proposed amendments to the other states before ratification.  The Convention then adopted, by a vote of 89 to 79, a resolution ratifying the Constitution with recommended amendments only:

Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,-

Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.
So was James Madison fibbing when he stated that "This idea of reserving right to withdraw was . . . considered [by the Virginia Convention] as a conditional ratification which was itself considered as worse than a rejection"?  I would say the answer is clearly "yes." The only person who addressed that aspect of Wythe's proposal was Patrick Henry.  And, as we have seen, he attacked it as ineffectual.  The clear import of Madison's comment to Hamilton was that the pro-Constitution forces at the Virginia Convention had objected to the proposal as "conditional" and "worse than a rejection."  The available record indicates that they did nothing of the sort.  Nor is there any reason to believe that the Virginia Convention rejected Wythe's proposal for that reason.
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