Washington in New York -- chs 6 & 7

CHAPTER 6: RUMORS

New York City was a hotbed of rumors in the spring and summer of 1789.

The most persistent rumor was that a second constitutional convention was going to be held -- when and where to be determined.  Ostensibly, it would be to amend the Constitution with a bill of rights, but no one actually believed that to be the real reason. The anti-Federalists were behind the rumor, and their intent was to dismember the new federal government and restore the confederation.

The House of Representatives was prepared to draft a bill of rights --when it was ready.  In April, it had more pressing issues to deal with, such as creating a federal revenue system. In the meantime, something had to be done to prevent or at least to delay a second convention from being called.  But what?  James Madison had the answer: improvise.

The Monday following Washington’s inauguration, on May 4, 1789, Madison rose from his seat in the House and made an announcement: in three weeks he would open debate on a bill of rights.  Yes, James Madison, who opposed a bill of rights at the Constitutional Convention in Philadelphia, now was in favor of a bill of rights.  In fact, he said he would write them, and have them approved by Congress and ready for the President’s signature before the first session adjourned in September.

Having made the announcement, it was now a matter of public record and therefore news on the streets of New York.  Within a week or two it would be printed in newspapers throughout the country.  If Congress was going to amend the Constitution with a bill of rights, there was no need for a second convention.  In less than five minutes, Madison had trumped the anti-Federalists.

Or had he?  The following day, Theodorick Bland--an ally of the nation’s most vocal anti-Federalist, Patrick Henry--presented a petition calling for a second constitutional convention.  Madison knew exactly what Bland would say next, that such a convention would meet only to consider "the defects of this Constitution that have been suggested by the state (ratifying) Conventions, and report such amendments thereto, as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity, the great unalienable rights of mankind" and blah, blah, blah.

Alas, Theodorick Bland was one day too late.  The issue was already settled in the minds of Congressmen: the matter would be dealt with in three weeks.  The House entered Bland’s petition into the journal and kept the original on file in the clerk's office, where it was immediately forgotten.

WASHINGTON TAKES CONTROL

President Washington, meanwhile, was taking control of the affairs of state.  He asked two officers of the old government, John Jay (Superintendent of Foreign Affairs) and Henry Knox (Superintendent of War) to stay on until such time as Congress created new executive departments and new officers were appointed.  They both agreed.

Washington requested the nation’s financial records from the outgoing Board of Treasury, and to his disgust and horror discovered that he had inherited an accountant's worst nightmare. The records were filled with floating bond rates, complicated currency conversion tables, and guesswork revenue projections. Worst of all, the Board had no idea how much money the government actually owed. The combined total of state, domestic and foreign debt was anybody's guess.  For a while Washington (with help from Tobias Lear) tried to make sense of the numbers but gave up in despair. Only a financial genius could make sense of such a mess.

That financial genius would be Alexander Hamilton.  For now, he was practicing law, while awaiting creation of the Treasury Department.  Hamilton wouldn’t be appointed and begin to unravel the accounting nightmare until late in the year.

In mid-May Martha Washington departed Mount Vernon to join her husband in New York.  She brought her two grandchildren in the four-door coach, and a wagon following loaded with clothes chests and furnishings, and seven slaves.

Some Historians have portrayed Washington’s marriage as loving but passionless.  Perhaps.  What they had was a partnership.

The two were quite different.  Martha enjoyed people and made friends easily.  George was reserved and difficult to know well.  She was barely five-feet tall and plump (or “healthy” as she referred to herself).  He was six-foot-two, angular and well-muscled.  She had wonderfully straight white teeth that shown whenever she smiled, which was often.  What teeth Washington had were bad, and were seldom seen because he seldom smiled.  In his later years, he wore ill-fitting dentures.

Washington was a 27-year-old Colonel in the Virginia militia when they first met.  It was at a social gathering where the young colonel was a surprise guest.  Martha Custis Dandridge had been a widow for nearly a year, and had two small children.  She was the richest and most sought-after unmarried woman in Virginia.  What began as an exchange of pleasantries turned into a marathon conversation.  He did most of the talking; she was an attentive listener.  They talked from early afternoon until late into the evening.  They resumed their conversation the following morning and spoke on through the afternoon dinner.  It was obvious to everyone there that these two were made for each other.  They were what today would be called soul-mates.  Within days of their meeting a wedding date was set.

Martha Dandridge needed a man with the strength and experience to manage her large plantation, and who would be a loving father to her two small children.  She had many suitors but none who would allow her to raise her children as she saw fit, without interference, as Washington would.

Martha may not have been as dowdy as she has been portrayed down through the years.  According to a recent biographer, Patricia Brady, as a young woman Martha was slim and attractive.  “Martha pretty much had everything,” writes Brady.  “She married to please herself and she wanted George.  I think she decided, ‘I’m young, I’m rich, I need to have the man I want and a man I can trust to look after me and my children.’  George Washington was a sharp dresser, and thought a lot about what he wore.  He never would have wanted his wife to be dowdy.  And she wasn’t.”

They were married January 6, 1759 and honeymooned for three months at White House, Martha’s large plantation near Williamsburg, Virginia.  They moved to Washington’s then-modest Mount Vernon estate that he inherited from his late step-brother, Lawrence.  Washington enlarged the mansion house, sold or leased much of Martha’s property, and extended the Mount Vernon landholdings.  By 1775, the year he was appointed Commander-in-Chief of the Continental Army, Mount Vernon comprised five farms and stretched ten miles along the Potomac River.  The mansion house, dependency buildings, stables, orchards, gardens and lawns looked much as the English estates Washington had long admired in books he imported from England.  Martha’s wealth allowed him to fulfill his childhood dream of becoming a wealthy Virginia squire and respected member of Tidewater society.

Martha supported her husband in everything he did, including fighting a war.  She was with him at Valley Forge during the terrible winter of 1777, and at Morristown during the even-more terrible winter of 1779.  She nursed wounded solders, darned their shirts and socks, and after the war, campaigned for veteran benefits.

The last thing Martha wanted for her husband was to be president.  He had done his duty, she said.  He had lived a life of public service.  He had served in the French and Indian Wars.  He had served in the Virginia House of Burgesses.  And for eight years he had served as Commander-in-Chief on the Continental Army.  Let him live out his last years at his beloved Mount Vernon.  However, when he decided to answer his nation’s call and accept the presidency, she supported him completely.  A month after Washington departed for New York, Martha followed.

Why the Washingtons brought seven slaves north to New York when Congress was providing them with fourteen hired servants seemed extravagant?  Much of it had to do with the way the Washingtons were accustomed to living.  Two of the slaves were handmaidens: one was Martha’s body servant, the other was her personal maid.  Of the other five, four were stablehands, and one was Washington’s valet.

BILLY LEE

Valets and personal servants of great people, whether slaves or not, seldom receive mention in the biographies of famous people and certainly not with early Americans. They are history’s invisible personages.  A number of Congressmen who traveled to New York, especially those south of the Mason-Dixon Line, were accompanied by a valet . Travel was not easy in eighteenth-century America, and for a man of means someone was required to handle the clothes chest, to see that daily he had a clean change of shirts, to brush the dust from his coat and hat, wash his undergarments, polish his boots, tend to his wig, and in the morning help him dress.  Sometimes the relationship between master and servant was close, as with George Washington and Billy Lee.

By all accounts, Billy Lee was an incredible athlete: short, powerful, built like an NFL running back.  He was the only horseman in Virginia who could keep pace with Washington in a fox hunt.  Like Washington, Lee was fearless.  He was at the General’s side all eight years of the Revolutionary War.  Lee not only served as Washington’s valet but rode with him into battle. When Washington rode to the front to have a closer look at the fighting, Will was at his side, as much a target as the general.

After the war, Lee fell from his horse and broke a kneecap. Two years later, he fell again and broke the other kneecap.  By 1789, Billy Lee was a cripple, but insisted on traveling to New York to continue as Washington’s valet.  On the way, they stopped in Philadelphia to see a medical specialist. Nothing could be done about his knees, and he travelled on to New York.  Lee tried but could no longer assist the General.  His brother Frank replaced him as Washington’s valet, and at some point Lee returned to Mount Vernon.  He was freed at Washington’s death, and lived another thirty years, on a pension the General had provided for him.

Once Martha arrived in New York with the slaves, a decision was made to keep them out of the public’s sight.  It wouldn’t do having slaves be seen working in the President’s mansion, what with New Englanders, Quakers, and New York’s manumission society looking on with disapproval.  Therein lay a problem.  Southern Congressmen were offended.  What was wrong with slavery?  Like Washington, they too had brought slaves north.  Should they hide them too?  Slavery was an economic necessity and an accepted part of life south of the Mason-Dixon line, something northerners didn’t understand.  Question slavery and you question the honor of southern gentlemen everywhere.  What right did northerners have to judge them?  New York City was hardly a garden of eden, with its ragged poor and exploited workforce.  How were northern unskilled workers better off than southern slaves?

WASHINGTON’S BRUSH WITH DEATH

It wasn’t long after Martha arrived that the New York rumor mill was at it again, this time with news of the President’s failing health.  Word on the street was George Washington had fallen ill and was near death.

Was it merely a baseless rumor or was it true? By all appearances, Washington had been in the peak of health.  People were always commenting on how well he looked. Besides, he was never sick.  He was vigorous, strong, athletic.  He was seen almost daily on horseback, or taking brisk walks to the Battery and back.  For much of May he called on Congressmen at their respective lodgings. Three times a week he hosted levees and teas at the Executive Mansion. On May 28, he took a boat across the bay to meet his wife on her arrival from Mount Vernon.

Washington began feeling ill on June 4.  Within a few days he was bedridden with a fever that would not yield to normal treatment.  Straw was put down on the street outside the Palace Mansion, to quiet the sound of passing carriages.  Later, the street was cordoned off all together.  A protuberance developed on the president’s left thigh.  Doctors were called to the mansion to have a look. Dr. Samuel Bard, a leading practitioner, and several consultants examined Washington and were unable to make a diagnosis. This was on June 17.  Despite efforts to keep the president’s illness a secret, word leaked out that Washington might die.

Panic set in, especially among Congressmen.  What if the president died?  What would become of the federal government?  For several days, Congress did nothing and for a time it seemed the game was up.  The Republic was doomed.  No one could replace George Washington as president.  Certainly not John Adams.  Oh, he was next in the line of succession, but he woefully lacked the General’s prestige and charisma. He was fussy and hyper-sensitive, and a polarizing force--a divider, not a uniter. It seemed all too clear: without George Washington, the anti-Federalists would stage a second constitutional convention and that would be the end of “the experiment.”  If Washington died, the Republic died with him.

The tumor grew fast and took on a fiery hue.  Around June 20 the fever abated and the tumor showed itself as an abscess. Surgery was then considered necessary. This was before anesthesia. The young doctor performing the surgery was fearful of hurting the president, of cutting too deep or too far. "Cut away," the older surgeon urged him. "Deep--deeper--deeper still. Don't be afraid. You see how well he bears it."

The General survived the ordeal but afterward needed plenty of rest.  He was in a lot of pain and recovery was slow.  As soon as he could bear the discomfort, he took carriage rides--laid full length across the seat.  Seeing the presidential carriage on the streets of New York again gave people hope all might yet be well.  No longer distracted, Congress resumed business but with more urgency.

It would be forty days before Washington returned to his desk.  In the meantime, working from his bed, he did what he could.  On July 4, he signed the Tariff Bill into law.  Indeed, on a day celebrating the nation's political independence, Washington signed into law a bill guaranteeing the federal government’s fiscal independence.

With Washington on the mend, the Senate could begin creating a federal judicial system, and the House could focus attention on drafting a bill of rights.

CHAPTER 7: DRAFTING A BILL OF RIGHTS

A peculiar thing happened at the Constitutional Convention in 1787: the framers left out the Bill of Rights.

What would become the cornerstone of Constitutional Law wasn’t even mentioned until the final week of the convention.  George Mason, one of the wealthiest men in Virginia (and George Washington’s neighbor), raised the issue almost as an afterthought.  Mason said he wished the Constitution "had been prefaced with a bill of rights” and he added, “It would give great quiet to the people.”

A bill of rights could be composed in a few hours, Mason said, if the committee simply referred to the various state declarations and used them as a model.  Eight of the thirteen state constitutions had a bill of rights, so the idea wasn’t new.  Mason, in fact, had written the Virginia bill of rights.  A motion was made and seconded.  After a short discussion, a vote was taken and the motion was defeated by a unanimous vote.  Mason was crushed.  When it was time to sign the Constitution, he couldn’t bring himself to sign the document he’d worked so hard to help create.

A week later the Constitution went to the states for ratification.  A number of states grumbled that there wasn’t a bill of rights, but in the end eleven states ratified the Constitution, two more than was needed.  The holdouts were North Carolina and Rhode Island.

Why were the delegates opposed to a bill of rights?  The short answer: they didn't think it was necessary.  As they saw it, the Constitution itself was a bill of rights.  Alexander Hamilton declared that a bill of rights was not only unnecessary, it was dangerous. "Why declare that things shall not be done which there is no power to do?"  In the past, a bill of rights was a stipulation between kings and their subjects, Hamilton pointed out, like Magna Carta, putting legal restraints on kings from stepping on the rights of citizens.  In America, there was no king.  In America, Congress protected the rights of the people.  With no king there was no one to trample on the people’s rights.

Writing to Thomas Jefferson in France, James Madison gave four reasons why he was against a bill of rights: (1) rights not given up were reserved for the people, (2) a list of rights could be either too broad or too narrow and not offer sufficient protection of those rights, (3) state governments would be "jealous" of the powers granted to the new federal government and thus would provide a check on its powers "which has not existed" before, and (4) a bill of rights might not be as effective as people think.  “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State,” wrote Madison.  If most Virginians were of one religious sect, Madison said he did not expect a few sentences in Virginia's Declaration of Rights would deter the majority from imposing its will on a religious minority.  In such a case, the government would not be the source of oppression; the source of oppression would be the majority in the community.

The Virginia state ratifying convention helped change Madison's mind.  In order to get Virginia’s delegates to ratify the Constitution, Madison had no choice but to agree that, yes, a bill of rights was necessary after all, and to promise to amend the Constitution once the new government was in place.  Even so, he remained luke-warm at best. Later, in order to get elected to the House of Representatives, he reiterated the need for a national bill of rights.  If he still had any misgivings, once he arrived in New York and got wind of the anti-Federalist call for a second constitutional convention, he changed his mind at once.  Madison realized that if a bill of rights was not passed by Congress before the Fall adjournment, the anti-Federalists would make good their threat to hold a convention and everything he had worked for during the past three years would be in jeopardy.  The problem now was convincing Congress, which had yet to see the light.

THE MAN IN THE MIDDLE

"Best House for Company and Entertainment in the City," was the word on the street.  That was the boardinghouse at 19 Maiden Lane run by Dorothy Ellsworth. James Madison roomed there with three fellow Virginians and two Pennsylvanians, all members of the House of Representatives.  The Ellsworth Boarding House was central to everything in Madison's life.  From there it was a five-minute walk to Federal Hall on Wall Street, and a 10-minute walk to the President’s Palace Mansion at 1 Cherry Street.  That and attending Sunday service at St. Paul's on Broadway pretty much comprised Congressman Madison's world in the spring and summer of 1789.

Prematurely gray and stoop-shouldered, seeing James Madison treading the lonely byways of New York City was to see a man carrying the weight of the world on his shoulders, or, more accurately, the weight of the federal government.  It wasn't easy being James Madison. He didn’t make friends easily and didn’t have a wife.  It seemed no woman would have him (until he met the lovely, widowed Dorothea “Dolley” Payne Todd, whom he would marry in 1794).  To his constant annoyance, newspapers were forever misquoting his speeches in Congress.  Little wonder: reporters had trouble hearing the exact words of the soft-spoken Virginian.

Madison was feeling particularly burdened during the first few months of the new government: he was the man in the middle of two opposing political forces.  On one side was Congress, dominated by the Federalists who opposed amending the Constitution with a bill of rights. On the other side were the anti-Federalists, who were threatening to call a second constitutional convention if something wasn’t done about it and quickly.

Madison had one thing in his favor: the support of a hugely-popular president.  Getting Washington's support was always the smart move, whether starting a revolution, framing a constitution, or ordering up a new government.  Madison courted Washington the previous winter by making three separate visits to Mount Vernon, first to talk Washington into running for president, and second to convince him of the need to amend the new Constitution with a bill of rights.

At first Washington was cool to the idea.  Like most Federalists, he saw no reason to amend the Constitution without first giving the new government “a fair trial.” He also feared that one amendment would lead to another and to another, and that over time the Constitution would be diluted and thus federal power would be diluted, and the nation would revert back to the bad-old days of the confederation.  Madison shared Washington's fear but said not to amend the constitution would be playing into the anti-Federalists’ hands.  The risk was there either way.  Washington reluctantly agreed, and officially announced his support in the inaugural address. He urged legislators to be careful with what alterations they proposed making to the Constitution.  He said: "For I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an United and effective Government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question."

In case there was any doubt that the president's intentions hadn't been made clear, a month after the inaugural Madison presented the President with 19 bills of rights--a first draft of what would become the United States Bill of Rights. Washington read them carefully and gave his blessing--in a letter to Madison. That summer, whenever the need for a bill of rights was questioned in Congress, Madison only had to produce Washington's letter and to say (presumably), “See this? I have the President’s backing."

WHIPPED SYLLABUB

Whipped Syllabub.  That's how Aedanus Burke of South Carolina described James Madison's first draft of a bill of rights.  It was not meant as a compliment.  Madison's list of rights, said Burke, was "not those solid and substantial amendments which the people expect."  Burke characterized them as "little better than "whip syllabub", frothy and full of wind, formed only to please the palate. . . ."

The dictionary defines syllabub as a dessert made by beating to a froth sweetened milk or cream, sometimes adding egg whites, and flavoring with wine or liquor.  Pour over cake or fruit and you have--that’s right--a palate pleaser.

Never mind that Madison's draft was based on the Virginia Declaration of Rights written by scholarly George Mason, or that Mason had borrowed liberally from England's venerable 1669 Bill of Rights.  In Burke’s mind, Madison hadn’t gone far enough.  On the other hand, most members of the House saw no need for a bill of rights in the first place, and believed the matter was purely political.  Hadn't Madison changed his mind in order to get elected?  Besides, a bill of rights had no place in a document that simply described the mechanics of government and granted it limited powers.  In Federalist No. 84 Hamilton wrote: "Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

The road to amending the Constitution with a bill of rights was uphill every step of the way.   Madison not only had to convince Congress, but he had to keep reminding himself that it was necessary.  As late as June 8, when he addressed Congress in detail about the bill of rights, he made this notation on the outline he had prepared: "Bill of Rights--useful--not essential--."  However, believing as he did that the greatest likelihood of tyranny and the true danger to liberty lay in abuses by the majority rather than by the government, Madison put his heart into it by reasoning that a bill of rights would function not so much as a specific set of rules but as a kind of public standard.  In time, the values that it embodied would gradually be internalized by society as a whole.  "The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion."  And, should liberty be endangered by the government, such a standard would be "a good ground for an appeal to the sense of the community.”

As we have seen, Madison planted the idea four days after Washington’s inaugural address, on Monday, May 4.  There was so much other legislation that needed addressing first, however, it seemed Congress would never get around to it.  Madison’s pledge that debate would begin in three weeks seemed plausible, until reality set in.  On May 11, the Senate began debate on the judiciary act.  On May 19, the House began debate on the creation of the executive departments of state, treasury and war.  On May 25--the fourth Monday of the month--Madison moved to begin debate on the bill of rights amendments.  The House had more pressing business and postponed the debate.  On June 8, Madison raised the issue again, faced with the same excuse, but this time he was insistent.  If the House continued to postpone debate, Madison said,  "it may occasion suspicions, which, though not well-founded, may tend to inflame or prejudice the public mind, against our decisions."  Indeed, the public--and most assuredly the anti-Federalists--may very well decide that "we are not sincere in our desire to incorporate such amendments in the constitution as will secure those rights, which they consider as not sufficiently guarded."

Whether or not the House was swayed by his speech, or merely acting out of respect for Madison--or both--a vote was taken and debate began the following morning.

NOWHERE TO HIDE

The atmosphere inside the two chambers of Congress could not have been more different.  With only 22 members, the Senate was like a club--exclusive, secretive, cut off from the workaday world.  Early on, the Senate voted to keep press and public out, and in so doing unwittingly enforced a feeling of exclusivity.  Not so inside the House chamber: no clubby atmosphere here and nothing secretive.  The House voted to let the press and public in.  Suspended above the House floor were two galleries for this purpose--literary "peanut galleries"--where public and press could sit, eat nuts (which they often did) while watching the proceedings going on below.  It was great theater, as we shall see in later chapters. However annoying the sound of cracking nuts may have been--the acoustic inside the House chamber was reportedly quite good--inviting the outside world in paid unexpected dividends. The press recorded what was taking place on the House floor, and their reports were published in newspapers throughout the thirteen states. This worked to Madison's advantage.

Within eight days of Madison's May 4 announcement that a bill of rights amendment was due up for debate, Madison received a letter from a friend in Virginia telling him that the news of his announcement had been well received among Virginia's anti-Federalists. Madison received another letter from a friend in North Carolina saying now that a bill of rights proposal was in the works, plans were underway in North Carolina for a ratifying convention in November, so it was "extremely important that the amendments, if any, should be proposed before that time."

After the House spent June 8 debating Madison's proposal, it voted to delay further debate for another six weeks, due to the Congressional workload.  While Madison was disappointed with yet another setback, this too worked in his favor. His 19 bills of rights that he presented to the House on June 8 were published in the newspapers and therefore were a matter of public record. Six weeks was plenty of time for citizens to read and digest the proposed amendments and to decide their merit. Were they worthwhile or were they, as Burke so colorfully put it, “frothy and full of wind.” The people had time to decide for themselves.

With the press reporting House proceedings, it must have seemed to Congressmen that the entire nation was watching. Newspapers would report events and a week or two later House members would receive letters from constituents and friends on how well their actions were being received back home. There was nowhere to hide. Whatever position taken by a Congressman--be it pro or con--became a matter of public record. This too worked in Madison's favor. Congressmen couldn't ignore his proposed amendments--not with North Carolina and Rhode Island awaiting the outcome. Action had to be taken before Congress adjourned at the end of September.

On July 21, Congress took up the issue again. Instead of focusing on the amendments themselves, House members spent most of the day arguing whether or not Madison's amendments should be considered by the House as a whole or by special committee. Late in the day a vote was taken and the matter was sent to special committee.

A week later the committee reported back to the House. It had accepted most of Madison's recommendations, but made several significant changes, replacing some of his words with phrases that would eventually be incorporated into the Bill of Rights as we know them today. The report was then tabled.

On August 13, and continuing for the next eleven days, the House met as a whole and went over the amendments line-by-line, making more changes. When they were finished, Madison's 19 amendments had become 17 amendments and, in fact, were no longer Madison's amendments: they were the House of Representative's amendments. A vote was taken and at least two-thirds of the 65 House members voted in the affirmative.  The amendments now went upstairs to the Senate.

Because the Senate met in private (until 1794), little is known about the Senate debate.  What is known is that by the time the Senate completed its work on September 14, it had made twenty-six changes to the House amendments.  It tightened the language, rearranged some amendments, combined others, and reduced the total number from 17 to 12.

The House agreed with some of the Senate's changes, but rejected others.  On September 21, the House appointed a conference committee to meet with their Senate counterparts to iron out the differences. Three days later, having reached agreement, the conference committee issued a report. That same day the House approved the committee's report 37 to 14. The following day, September 25, the Senate approved the report as well.  With that, the Bill of Rights had passed Congress.  A week later, George Washington submitted the 12 amendments to the states for ratification.

An immediate benefit was realized in November when North Carolina joined the Union. Rhode Island would join the following spring. In the end, ten of twelve amendments were ratified by the states for inclusion in the United States Constitution. Madison's home state of Virginia was the tenth and deciding state to vote approval, on December 15, 1791.

Three of the original thirteen states that did not ratify the Bill of Rights--Massachusetts, Connecticut, and Georgia--finally did so in 1939, in preparation for the Bill of Rights’ sesquicentennial celebration, in 1941.

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