On the 14th of June the "discussion at large" had been stopped and the text of the Constitution was taken up clause by clause, the debate under this rule lasting until the 24th.* Wythe, who was chairman of the committee of the whole, then left his seat, came down to the body of the house and moved that the Constitution be ratified, at the same time recommending that Congress make certain amendments. Henry now moved that a bill of rights and some twenty amendments, which he had prepared, be submitted instead of a ratification, and that these be referred to the other States for consideration. † Madison was convinced that the fate of the instrument which he had been so helpful in forming depended on the question then to be decided. He was too well acquainted with the difficulties in the general Convention to believe that the various States could ever unite on the various amendments which would be proposed. Madison said:

"Nothing has excited more admiration in the world than the manner in which free governments have been established in America. For it was the first instance from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon, and give effect to it. But why has this excited so much wonder and applause? Because it is of so much magnitude, and because it is liable to be frustrated by so many accidents. If it has excited so much wonder, that the United States have

* For a resumé, see Curtis, Constitutional History, vol. i., p. 666 et seq.

McMaster, United States, vol. i., p. 491; Curtis, Constitutional History, vol. i., p. 681.

in the middle of war and confusion, formed free systems of government, how much more astonishment and admiration will be excited, should they be able, peaceably, freely, and satisfactorily, to establish one general government, when there is such a diversity of opinions and interests, when not cemented or stimulated by any common danger? How vast must be the difficulty of concentrating in one government the interests, and conciliating the opinions of so many different heterogeneous bodies? How have the con

federacies of ancient and modern times been formed? As far as ancient history describes the former to us, they were brought about by the wisdom of some eminent sage. How was the imperfect union of the Swiss Cantons formed? By danger. How was the confederacy of the United Netherlands formed? By the same. They were surrounded by dangers. By these and one influential character, they were stimulated to unite. How was the Germanic system formed? By danger, in some degree, but principally by the overruling influence of individuals. When we consider this government, we ought to make great allowances. We must calculate the impossibility that every state should be gratified in its wishes, and much less that every individual should receive this gratification. It has never been denied by the friends of the paper on the table, that it has its defects. But they do not think that it contains any real danger. They conceive that they will in all probability be removed when experience will show it to be necessary. I beg that gentlemen deliberating on this subject, would consider the alternative. Either nine states will have ratified it or they will not. If nine states will adopt it, can it be reasonably presumed or required, that nine states having freely and fully considered the subject, and come to an affirmative decision, will upon the demand of a single state, agree that they acted wrong, and could not see its defectstread back the steps which they have taken, and come forward and reduce it to uncertainty, whether a general system shall be adopted or not? Virginia has always heretofore spoken the language of respect to the other states, and she has always been attended to. Will it be that language, to call on a majority of the states to acknowledge that they have done wrong? Is it the language of confidence to say, that we do not believe that amendments for the preservation of the common liberty and general interest of the states, will be consented to by them? This is neither the language of confidence nor respect. Virginia, when she speaks respectfully, will be as much attended to as she has hitherto been, when

speaking this language. It is a most awful thing that depends on our decision- no less than whether the thirteen states shall unite freely, peaceably, and unanimously, for the security of their common happiness and liberty, or whether every thing is to be put in confusion and disorder! Are we to embark in this dangerous enterprise, uniting various opinions to contrary interests, with the vain hopes of coming to an amicable concurrence? "It is worthy of our consideration, that those who prepared the paper on the table, found difficulties not to be described, in its formation: mutual deference and concession were

absolutely necessary. Had they been inflexibly

tenacious of their individual opinions, they would never have concurred. Under what circumstances was it formed? When no party was formed, or particular proposition made, and men's minds were calm and dispassionate. Yet, under these circumstances, it was difficult, extremely difficult, to agree to any general system.

"Suppose eight states only should ratify it, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposi tion, which is the most favorable conclusion, the difficulty attending it would 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 have 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 this Constitution."

On this and the three succeeding days Madison spoke thirty-five times. See Hunt, Life of Madison, p, 150 et seq.

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After two days of wrangling, the proposition made by Henry was defeated by a majority of 8, the vote standing 88 to 80. On the question to ratify the majority was 10, the vote standing 89 to 79,* and thus, as Hunt says: "The greatest orator of his time, the master who could sway Virginia audiences as no other man could, who had become habituated to success with them and had on this occasion exerted his marvelous powers, as he had never exerted them before, had suffered defeat from a thin-voiced feeble scholar who never aroused the enthusiasm of an audience in his life. Henry never forgot nor forgave it ***." After a few preliminary remarks, the Convention added: "With these impressions, with a solemn appeal to the Searcher of hearts, for the purity of our ontentions, and under the conviction that whatsoever imperfections may exist. in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union to danger, by a delay with a hope of obtaining amendments previous to the ratification: we, the delegates, do assent to ratify the Constitution."

At the same time the Convention agreed upon a bill of rights consisting of twenty articles and the same

* Madison to Washington, Madison's Works, (Congress ed.), vol. i., p. 401; also p. 404; Elliot, Debates, vol. iii., p. 654; Bancroft, vol. vi., p. 436; The South in the Building of the Nation, vol. i., pp. 103-104.

† Hunt, Life of Madison, p. 155.

592.

Henry, Life of Patrick Henry, vol. iii., p.

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number of amendments to the Constitution. The declaration of rights was as follows:

"1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

"2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees and agents, and at all times amenable to them.

"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

"4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

"5th. That the legislative, executive, and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections; in which all or any part of the former members should be eligible or ineligible, as the rules of the constitution of government, and the laws shall direct.

"6th. That elections of representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage; and no aid, charge, tax, or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law to which they have not in like manner assented for the public good. "7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

"Sth. That in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces), nor can he be compelled to give evidence against himself. "9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.

"10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

"11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

"12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments or regulations, contravening these rights, are oppressive and unjust.

“13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

"14th. That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants therefore to search suspected places, or seize any freeman, his papers, or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous, and ought not to be granted.

"15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

"16th. That the people have a right to freedom of speech, and of writing and publishing

their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

"17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power. 18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

"19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

"20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural, and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others."

The suggested amendments to the Constitution were:

"1st. That each state in the union shall respectively retain every power, jurisdiction, and right, which is not by this constitution delegated to the congress of the United States, or to the departments of the federal government.

"2d. That there shall be one representative for every thirty thousand, according to the enumeration or census mentioned in the constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or increased as congress shall direct, upon the principles fixed in the constitution, by apportioning the representatives of each state to some greater number of people from time to time, as population increases.

"3d. When the congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state of the quota of such state, according to the census herein directed, which is proposed to be thereby raised; and if the

*These are given in Henry, Life of Patrick Henry, vol. iii., pp. 593–596.

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legislature of any state shall pass a law which shall be effectual for raising such quota at the time required by congress, the taxes and excises laid by congress, shall not be collected in such state.

"4th. That the members of the senate and house of representatives shall be ineligible to, and incapable of holding any civil office under the authority of the United States, during the time for which they shall be respectively elected.

"5th. That the journals of the proceedings of the senate and the house of representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy.

"6th. That a regular statement and account of the receipts and expenditures of all public money, shall be published at least once in every year.

"7th. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the senate; and no treaty, ceding, contracting, restraining, or suspending the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity, nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively.

"8th. That no navigation law or law regulating commerce shall be passed without the consent of two-thirds of the members present, in both houses.

"9th. That no standing army or regular troops shall be raised, or kept up in time of peace, without the consent of two-thirds of the members present, in both houses.

"10th. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

"11th. That each state respectively shall have the power to provide for organizing, arming, disciplining its own militia, when soever congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion, or rebellion, and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.

"12th. That the exclusive power of legislation

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given to congress over the federal town and its adjacent district, and other places, purchased or to be purchased by congress of any of the states, shall extend only to such regulations as respect the police and good government thereof.

"13th. That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years.

"14th. That the judicial power of the United States shall be vested in one supreme court, and in such courts of admiralty as congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies between two or more states, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction; in all other cases before mentioned, the supreme court shall have appellate jurisdiction as to matters of law only; except in cases of equity, and of admiralty and maritime jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make. But the judicial power of the United States shall extend to no case where the cause of action shall have originated before the rati fication of this constitution; except in disputes between states about their territory; disputes between persons claiming lands under the grants of different states, and suits for debts due to the United States.

"15th. That in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.

"16th. That congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse or be disabled by invasion or rebellion to prescribe the same.

"17th. That those clauses which declare that congress shall not exercise certain powers, be not interpreted in any manner whatsoever, to extend the powers of congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.

"18th. That the laws ascertaining the com

pensation of senators and representatives for their services, be postponed in their operation until after the election of representatives immediately succeeding the passing thereof; that excepted, which shall first be passed on the subject. "19th. That some tribunal other than the senate be provided for trying impeachments of senators.

"20th. That the salary of a judge shall not be increased or diminished during his continuance in office otherwise than by general regulations of salary, which may take place on a revision of the subject at stated periods of not less than seven years, to commence from the time such salaries shall be first ascertained by Congress."

The Convention also enjoined upon their representatives in Congress" to exert all their influence and use all reasonable and legal methods to obtain a ratification of the foregoing alterations and provisions in the manner provided by the fifth article of the said Constitution,† and in all congressional laws to be passed in the meantime to conform to the spirit of these amendments as far as the said Constitution will admit."‡ This news caused great rejoicing at Philadelphia where a large parade was held in celebration of the event. Providence, R. I., the news of the ratification of New Hampshire caused great joy and a celebration was fixed for July 4, but the Anti-Federalists attempted to break up the celebra

At

* See Henry, Life of Patrick Henry, vol. iii., pp. 596-599.

See Pitkin, Political and Civil History of the United States, vol. ii., pp. 280-281; Tyler, Life of Patrick Henry, chap. xix.

On the Virginia Convention, see also Grigsby, The Virginia Convention of 1788, in Virginia Historical Collections, vol. ix.; Bancroft, vol. vi., pp. 371-380, 421-437; Elliot, Debates, vol. iii. || Schouler, United States, vol. i., pp. 75–76.