“A Conciliatory Declaration”: George Nicholas, the Virginia Ratification Convention, and the Misuse of History

In June 1788, George Nicholas, a leading proponent in Virginia of the proposed new federal Constitution and soon-to-be Kentucky resident, explained to his fellow delegates at the Virginia ratifying convention:

all powers vested in the Constitution were derived from the people, and might be resumed by them whensoever they should be perverted to their injury and oppression; and that every power not granted there by remain at their will. No danger whatever could arise; for … these expressions will become part of the contract. The Constitution cannot be binding on Virginia, but with these conditions. If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification, and intent, to be (what the words of the contract plainly and obviously denote,) that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it whensoever any such imposition shall be attempted,—I ask whether, in this case, these conditions, on which he assented to it, would not be binding on the other twelve. In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.¹

A little over sixty years later during the winter of secession, as southerners sought to explain their actions, some resurrected the ideas and words of Nicholas. They believed they found in the words of this former Virginia planter turned popular Kentucky leader the intellectual support they needed to explain why they had chosen secession.

For example, in his two-volume tome on the Civil War, A Constitutional View of the Late War Between the States, Alexander H. Stephens of Georgia, the former vice president of the Confederate States of America, declared that Virginians, in ratifying the Constitution in 1788, understood that if the Constitution were to be “in their judgment … perverted to their injury,” they could simply leave the Union in order “to resume the powers that they had delegated” to the federal government.² In support of his claim, Stephens cited George Nicholas’s remarks at the Virginia ratifying convention.

Similarly, Senator Judah P. Benjamin of Louisiana, shortly after South Carolina seceded from the Union in December 1860, invoked Nicholas’s words in Congress to defend the right of secession. After quoting Nicholas’s exact words, Benjamin went on to explain that “by the common action of the states, there was an important addition made to the Constitution by which it was expressly provided that it should not be construed to be a General Government over all the people, but that it was a Government of States, which delegated to the General Government.”³

A few months later, at the Virginia secession convention, Robert L. Montague evoked Nicholas’s words and those of Nicholas’s brother-in-law, Edmund Randolph, governor of Virginia at the time of the ratification of the federal Constitution, to support the withdrawal of Virginia from the Union. Randolph, who as a delegate to the Philadelphia convention had refused to sign the completed Constitution in 1787, became one of the chief spokesmen for ratification in his state. Like Nicholas, he insisted that the delegates could, through the process of ratification, include a statement that would “manifest the principles on which Virginia adopted it,” namely that “all authority not given is retained by the people, and may be resumed when perverted to their oppression.”⁴

Montague, who hailed from Mathews County, declared that “they say it would be the condition [the ability of Virginia to resume those powers that it had granted the federal government] upon which Virginia would enter the confederation, and would become ‘part of the contract.’ Can anything be plainer?” he asked the delegates.⁵ Indeed, when it became time to explain their actions in removing Virginia from the Union, the delegates adopted Nicholas’s and Randolph’s interpretation and chose to use words nearly identical to those Nicholas used in convincing his fellow delegates to ratify...