Page images
PDF
EPUB

212

JEFFERSON'S OPINION OF WILSON.

decided, Jefferson had stated his objections to it in a letter to Madison.1 It was "the omission of a bill of rights providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations." That the Constitution,-as Wilson had told the people of Philadelphia, was "itself a bill of rights," seemed to Jefferson "surety a gratis dictum, the reverse of which might just as well be said;" and "opposed by strong inferences from the body of the instrument." He wished "with all his soul," that the first nine conventions would accept the Constitution, and thus secure the good it contained; but the four latest conventions, whichever they might be,

1 Commenting on the Constitution, Jefferson wrote: "I will now tell you what I do not like. First, the omission of a Bill of Rights providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations. To say as Mr. Wilson does (referring to Wilson's speech at the State House, Philadelphia, in defence of the Constitution: See Pennsylvania and the Federal Constitution, McMaster and Stone, 9, 252-254), that a Bill of Rights was not necessary, because all is reserved in the case of the General Government, which is not given, while, in the particular ones, all is given which is not reserved, might do for the audience to which it was addressed, but it is surely a gratis dictum, the reverse of which might just as well be said; and it is opposed by strong inferences from the body of the instrument."

Jefferson to Madison, Paris, December, 1787,

Works, II, 329. See also his letter to Priestly, June 19, 1802, stating what he had to do with making the Constitution.

Works. (Ford's Ed.) VIII, 159.

JEFFERSON, LEE AND MASON.

213

should refuse to accede, till a declaration of rights was annexed,1 and later, he expressed himself greatly pleased with the course of Massachusetts, in accepting the work of the Federal Convention, and amending it afterwards.2 Jefferson's devotion to Bills of Rights, as a security for the people, was exceeded by Richard Henry Lee and George Mason's demands for amendments, as a security for the States. To Lee and Mason, the Constitution seemed to authorize a consolidated government, instead of a confederacy: therefore it should be amended, so as to leave the State sovereignties intact. Between Jefferson and Lee stood many lesser leaders, opponents of the Constitution, who demanded amendments of particular provisions, such as those regulating the apportionment of representation; the election of Senators and Representatives; the tenure of office, the publication of the journals of Congress; the jurisdiction of federal courts, and other administrative details. Of the moderate men of this party, Madison was chief, and he devoted himself to an exhaustive study of all the amendments proposed by the State conventions, and of all the grievances and com

1 On amending the Constitution, Jefferson wrote:

"I wish, with all my soul, that the nine first conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they may be, may refuse to accede to it till a declaration of rights be annexed." Jefferson to A. Donald, February 7, 1788.

Works, I, 355.

The same idea is repeated by him in other letters.

Jefferson objected to the re-eligibility of the President.

Letter to Washington, May 2, 1788. Works, II, 375.

a Jefferson commended the course of Massachusetts in accepting the Constitution and demanding amendments.

Letter to W. Carmichael, May 27, 1788. Works, II, 399. 3 See Mason's Objections to the Federal Constitution and Iredell's Observations on them, in Ford's Pamphlets, 327, 333.

214

PETITION OF VIRGINIA ASSEMBLY.

plaints of the newspapers and the talk of the day. Finally as "the fruit of much labor and research," he introduced his long expected list.1

It was preceded, on the fifth of May, by the petition of the general assembly of Virginia, presented by Bland,2 requesting Congress to call a second convention, immediately, with full power to take into consideration the amendments that had been suggested by the State conventions, and to report them for ratification. The Virginia petition was largely the outgrowth of the New York Circular Letter.3 Bland wished the request referred to a

1 "Mr. Madison has introduced his long-expected amendments. They are the fruit of much labor and research. He has hunted up all the grievances and complaints of newspapers, all the articles of conventions and the small talk of their debates. It contains a bill of rights, the right of enjoying property, of changing government at pleasure, freedom of the press, of conscience, of juries, exemption from general warrants, gradual increase of representatives, till the whole number at the rate of one to every thirty thousand shall amount to and allowing two to every State at least. This is the substance. There is too much of it. I had forgot the right of the people to bear arms.

"Risum teneatis amici?

"Upon the whole it may do some good towards quieting men who attend to sounds only, and may get the mover some popularity which he wishes."

Fisher Ames to Th. Dwight, June 11, 1789.

Life and Works of Ames, I, 52.

Writing of the amendments as a whole: "It is rather food than physic. An immense mass of sweet and other herbs and roots for diet drink."

Ames to George R. Minot, June 12, 1789.
Life, I, 54.

For Madison's Amendments, the first draft of those ultimately adopted, see p. 199.

2 Annals, 258, 259.

See letter of Richard Henry Lee to Bland, urging amendments; stating that they were probable by means of the new Congress, and that they were expected. Letter to Bland, Oct. 15, 1788.

Lee's Lee, II, 95.

8 See ante, pp. 149, 151, 152,

SHALL THE HOUSE CONSIDER AMENDMENTS?

215

committee of the whole on the state of the Union, but Boudinot, Madison, Huntington and some others, were of opinion that the business could not be taken up, constitutionally, until two-thirds of the State legislatures had concurred in the application. At the suggestion of Page, of Virginia, the application, and all similar ones, until sufficient were made to obtain their object, were ordered to be entered on the journal,-the originals being filed among the records of Congress. But the probability that two-thirds of the States would take the initiative in securing amendments was not great, though the subject had been one of general agitation. The initiative was to come from Congress and was to be taken by Madison, but he could not get his propositions before the House, until one question of procedure and another of expediency had been first settled. The revenue bill was under consideration; should it be dropped to take up amendments to the Constitution? Again, should the amendments proposed by the State conventions be referred first to a select committee, and thus expedite business? Did not the Constitution explicitly provide that, whenever two-thirds of both Houses might deem it necessary, Congress should propose amendments? Therefore, the consent of twothirds must first be obtained. This number must first

decide the question of expediency. Madison urged expedition, that the public might be satisfied, for it had demanded amendments and expected Congress to propose them at an early day. He said that they would "give satisfaction to the doubting part of our fellow-citizens," who had an apprehension that the public liberties were not secure. Pass the amendments and the doubtful would "join their support to the cause of Federalism." But the strong motive in Madison's mind was to bring Rhode Island and North Caro

[blocks in formation]

lina into the Union. Not a single proposition would he suggest that would be unlikely to meet the concurrence of two-thirds of both Houses and the approbation of three-fourths of the State legislatures. "There have been objections of various kinds, made against the Constitution," said he. "Some are leveled against its structure, because the President is without a council; because the Senate, which is a legislative body, has judicial powers in trials on impeachments; and because the powers of that body are compounded in other respects, in a manner that does not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it disliked it because it did not contain effectual provisions against encroachments on particular rights and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow citizens think these securities."

Madison's plan was to incorporate the amendments in the Constitution,2 in their proper places, and not to add them, in a body, at the close. He therefore submitted his changes, omissions, and additions, indicating where each should be made. All, he said, were in the nature of a Bill of Rights. The British Declaration of 1689 had gone no further than to raise barriers against the power of the Crown. The power of the legislature was left altogether indefinite. Even Magna Charta did not secure 1 Annals, 450.

2 Annals, 451-453.

« PreviousContinue »