State was chosen a delegate. Among the one hundred and seventy members were Madison, Randolph, Blair, Wythe and Mason, who had attended the Federal Convention; Patrick Henry, who had declined an appointment; James Monroe, destined to be the fifth President of the United States; John Marshall, afterward Chief Justice; Bushrod Washington, destined to be his associate, and a long list of distinguished colleagues, including William Grayson; Benjamin Harrison, one of the signers; Humphrey Marshall, and the venerable Edmund Pendleton, Chancellor of the State, who was unanimously chosen President.1

The absence of Jefferson was conspicuous. Had he not been serving his country as minister to France, at this time, he undoubtedly would have been serving his State as a member of this convention. His close correspondence with Madison kept him in touch with American affairs and preserved his influence in the convention. His probable course there, had he been present, can only be hypothecated. There is much reason for believing that it would have been opposite to Hamilton's course in the New York Convention. The work of Marshall and Madison would have been more arduous.

It speaks eloquently for the influence of Jefferson, at this time, that to this day a popular tradition lingers that he wrote the Constitution, or at least was foremost in securing its formation and adoption. His diplomatic services have quite vanished from the popular memory. The Federalists have not placed on record any regret that Jefferson was out of the country while the Constitution was in process of formation and while it was in course of rati

1 The debates of the Convention are in Elliot, III; see also the Richmond Edition of 1805; the Journal was republished at Richmond by Thomas W. White, 1827,

84

THOMAS JEFFERSON.

fication. Anti-Federal opposition to the new plan embodied all of Jefferson's scruples against its scope and character. Of one thing we are certain, that Jefferson's chief objections were removed when a Bill of Rights had been added, and it was for such a Bill that the Anti-Federalists successfully contended in every State.

The Convention assembled at the State House on the second of June, 1788, but for the greater convenience of so large a body it met, on the third, at the New Academy, where its session continued to the end. A resolution offered by Mason was unanimously approved, that the Constitution should be discussed through all its parts, clause by clause, before the vote should be taken.1 After the preamble and the first article had been read, the debate was opened by Nicholas with a general defense of this part of the plan. He anticipated the objection to the omission of property qualifications for members of Congress, remarking that most of the electors in Virginia were landed men, and, as they would naturally choose such men to represent them, the landed interest would therefore prevail. Even if the States were divided into districts, the mercantile would not have an equal weight with the landed interest.2 Men of ability would not be excluded, even though they owned no land, if the controlling interest should choose to elect them.

Washington, in a letter to his nephew, now a member of the convention, had observed that the power in the Constitution would always be in the people; that it was entrusted for certain defined purposes and for certain lim

1 Elliot, III, 4.

2 By the act of the Virginia assembly, November 20, 1788, the State was divided into ten congressional districts, and a representative in Congress was acquired to be a freeholder, and to have resided twelve months in the State.

DEFENSE OF THE PLAN.

85

ited periods to representatives of their own choosing, and that whenever it was exercised contrary to their interest, or not agreeable to their wishes, their servants could, and undoubtedly would, be recalled.1 It was substantially on this idea that Nicholas based his defense of the new plan.2 Patrick Henry began further back than Nicholas and attacked the preamble. Who authorized the Convention, he inquired, to speak the language of "we the people" instead of "we the States?" States were the characteristic and soul of the Confederation. If they were not the agents of the new compact it must be one great, consolidated, national government of the people of all the States. But the people had given them no power to use their name; therefore, the Federal Convention had exceeded its authority; it should merely have amended the old system.3

Randolph, who had refused to sign the Constitution, and who now declared that were he to return he would again refuse, found himself in a perplexing position. He believed that the political salvation of the country depended upon a more perfect Union, and that the Confederation had utterly failed. He had refused his consent to the plan, because it lacked some provisions which amendments could supply. He expected these would be offered and ultimately adopted, and so earnest was he in his desire to secure the Union that he declared that rather than assent to its dissolution, he would lose his right arm.1

Whether the Constitution was good or bad, replied

1 Washington to Bushrod Washington, November 10, 1787; Sparks, IX, 29.

2 Elliot, III, 9-20.

3 Id., 22-23; 44.

4 Id., 26.

86

A NATIONAL GOVERNMENT PROPOSED.

Mason, the proposition under discussion clearly proved that it was a national government and not a Confederation. The assumption of the power to lay direct taxes would entirely change the league of States into a consolidated government, which would subvert every principle which had hitherto prevailed in the country. It would totally annihilate the State governments. Two concurrent powers, each levying taxes, could not exist. without the one destroying the other. The general government would be paramount to that of the States. Not a single example, he said, on the face of the earth, supported the opinion that a national government was adapted to so extensive a country as America, embracing many climates and containing inhabitants so very different in manners, habits and customs. He repeated the objections which had been elaborated in the Federal Convention, that sixty-five members, the number allotted to the Lower House of Congress, could not possibly know the situation and circumstances of all the people in so numerous a country. But his principal complaint was, that the new plan converted the Confederation into one general consolidated government, "one of the worst curses that could befall a nation." Yet if amendments were produced which would secure the rights of the people, he would gladly agree to the new plan.1

Pendleton saw no danger in the new plan. The cause of alarm was rather on the other side, the rejection of government and the dissolution of the Union. The form of the preamble "We the people" was a common one and a favorite with him, because none but the people could delegate power. The objection that the Union should be of the State governments and not of the people, he thought wholly baseless, because the State governments would

1 Id., 29-33; June 4, 1788.

PATRICK HENRY'S ARGUMENT.

87

have nothing to do with the Union; otherwise the people could not be the final judge of the plan. To Mason and Henry, who argued that the power of Congress was too great, he replied, that the Convention had ample authority to propose any plan; the choice now lay between the one it had proposed, or no government at all. The new gov ernment would be of laws, not of men.2 This also was his answer to the charge that the Constitution would establish a consolidated government which would annihilate that of the States.3

But Henry, ever elaborating his first premise, declared against the dangers of the plan. Were these not shown from the difficulty of its amendment, in that threefourths of the States must agree to any change, and twothirds of Congress, or of the State legislatures were necessary even to propose amendments? The expectation was altogether too great. One-tenth of the population of the United States, inhabiting the four smallest, might obstruct the most necessary amendments.4 The standing army, which the new plan established, would be more than a match for any disapproval of the conduct of the new government by the people. The excessive power of legislation over the Federal district would establish tyranny.5 Even the control of the militia, the last and best defense of the States, had been taken away from them. A consolidated empire, such as was now proposed, would have no real checks and balances, and the unlimited power

1 See the elaboration of this argument in the Federalist, No. XL.

2 The expression occurs in the Declaration of Rights of the constitution of Massachusetts, 1780, Article XXX.

3 Elliot, III, 35-41.

4 Id., 49, 55.

Id., 51.

• Id., 52.