for two years, in England for seven. Any citizen may be elected here; in Great Britain no one without an estate of the annual value of six hundred pounds sterling can represent a county; nor a corporation without half as much. If confidence be due to the government there, it is due tenfold here.” * Against the judiciary as constituted by the constitution Henry on the twentieth exceeded himself in vehemence, finding dangers to the state courts by the number of its tribunals, by appellate jurisdictions, controversies between a state and the citizens of another state; dangers to the trial by jury; dangers springing out of the clause against the impairment of the obligations of a contract. On the same day Marshall, following able speakers on the same side, summed up the defence of the judiciary system: "Tribunals for the decisions of controversies, which were before either not at all or improperly provided for, are here appointed. Federal courts will determine causes with the same fairness and impartiality as the state courts. The federal judges are chosen with equal wisdom, and they are equally or more independent. The power of creating a number of courts is necessary to the perfection of this system. The jurisdiction of the judiciary has its limit. The United States court cannot extend to everything, since, if the United States were to make a law not warranted by any of the enumerated powers, the judges would consider it as an infringement of the constitution. The state courts are crowded with suits; if some of them should be carried to a federal court, the state courts will still have business enough. To the judiciary you must look for protection from an infringement on the constitution. No. other body can afford it. The jurisdiction of the federal courts over disputes between a state and the citizens of another state has been decried with unusual vehemence. There is a difficulty in making a state defendant which does not prevent its being plaintiff. It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable states to recover claims against individuals residing in other states. This construction is warranted by the words." On the clause relating to impairing the obligation of con* Elliot, iii., 393–395. tracts, Marshall said this: "A suit instituted in the federal courts by the citizens of one state against the citizens of another state will be instituted in the court where the defendant resides, and will be determined by the laws of the state where the contract was made. The laws which govern the contract at its formation govern it at its decision. Whether this man or that man succeeds is to the government all one thing. Congress is empowered to make exceptions to the appellate jurisdiction of the supreme court, both as to law and as to fact; and these exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people."* The planters of Virginia were indebted to British merchants to the amount of ten millions of dollars; and the Virginia legislature, under the influence of Henry, had withheld from these creditors the right to sue in the courts of Virginia until England should have fulfilled her part of the treaty of peace by surrendering the western posts and by making compensation for slaves that had been carried away; he now censured the federal constitution for granting in the case retrospective jurisdiction. Marshall replied: "There is a difference between a tribunal which shall give effect to an existing right, and creating a right that did not exist before. The debt or claim is created by the individual; a creation of a new court does not amount to a retrospective law." + Questions as to the powers which it would be wise to grant to the general government, and as to the powers which had been granted, divided the convention. The decision of Maryland and South Carolina dashed the hope of proselyting Virginia to propose a separate southern confederacy; but Henry on the ninth still said: "Compared with the consolidation of one power to reign with a strong hand over so extensive a country as this is, small confederacies are little evils. Virginia and North Carolina could exist separated from the rest of America." But he limited himself to proposing that Virginia, "the greatest and most mighty state in the union,"# followed by North Carolina and by New York, which state he announced as being in high opposition, should hold the con * Elliot, iii., 551–560. Elliot, iii., 161. Elliot, iii., 539, 546, 561. #Elliot, iii., 142. | Elliot, iii., 157, 183. stitution in suspense until they had compelled the other states to adopt the amendments on which she should insist. He cited Jefferson as advising "to reject the government till it should be amended." * Randolph interpreted the letter which Henry had cited, as the expression of a strong desire that the government might be adopted by nine states with Virginia for one of the nine; † and two days later Pendleton cited from the same letter the words that " a schism in our union would be an incurable evil." + On the eleventh and the seventeenth Mason introduced a new theme, saying: "Under the royal government the importation of slaves was looked upon as a great oppression; but the African merchants prevented the many attempts at its prohibition. It was one of the great causes of our separation. from Great Britain. Its exclusion has been a principal object of this state and most of the states in this union. The augmentation of slaves weakens the states. Such a trade is diabolical in itself and disgraceful to mankind; yet by this constitution it is continued for twenty years. Much as I value a union of all the states, I would not admit the southern states into the union unless they agree to its discontinuance. And there is no clause in this constitution to secure the property of that kind which we have acquired under our former laws, and of which the loss would bring ruin on a great many people; for such a tax may be laid as will amount to manumission." # Madison equally abhorred the slave-trade; but on the seventeenth answered, after reflection and with reserve: "The gentlemen of South Carolina and Georgia argued, 'By hindering us from importing this species of property the slaves of Virginia will rise in value, and we shall be obliged to go to your markets.' I need not expatiate on this subject; great as the evil is, a dismemberment of the union would be worse. Under the articles of confederation the traffic might be continued forever; by this clause an end may be put to it after twenty years. From the mode of representation and taxation, congress cannot lay such a tax on slaves as will amount to manumission. At present, if any slave elopes to any of those states where * Elliot, iii., 152. Elliot, iii., 200. Elliot, iii., 304. slaves are free, he becomes emancipated by their laws; in this constitution a clause was expressly inserted to enable owners of slaves to reclaim them." Tyler supported Madison, speaking at large and with warmth: "This wicked traffic is impolitic, iniquitous, and disgraceful. It was one cause of the complaints against British tyranny; nothing can justify its revival. But for this temporary restriction, congress could have prohibited the African. trade. My earnest desire is that it should be handed down to posterity, that I have opposed this wicked clause."* On the twenty-fourth Henry raised a new cry on the danger of emancipation: "The great object of national government is national defence; the northern states may call forth every national resource; and congress may say, 'Every black man must fight.' In the last war acts of assembly set free every slave who would go into the army. Slavery is detested; we feel its fatal effects; we deplore it with all the pity of humanity. Let that urbanity which I trust will distinguish Americans, and the necessity of national defence, operate on their minds; they have the power, in clear, unequivocal terms, to pronounce all slaves free, and they will certainly exercise the power. Much as I deplore slavery, I see that the general government ought not to set the slaves free; for the majority of congress is to the North and the slaves are to the South." + The governor of Virginia first showed that the constitution itself did not, even in the opinion of South Carolina, menace enfranchisement; and thus proceeded: "I hope that there is no one here who, considering the subject in the calm light of philosophy, will advance an objection dishonorable to Virginia; that, at the moment they are securing the rights of their citizens, there is a spark of hope that those unfortunate men now held in bondage may, by the operation of the general government, be made free." + The representative from Augusta county, Zachariah Johnson, complained that the bill of rights which the convention was preparing as an amendment to the constitution did not acknowledge that all men are by nature equally free and indeElliot, iii., 453, 454, 455. * + Elliot, iii., 590. Elliot, iii., 598. pendent. "Gentlemen tell us," he said, "that they see a progressive danger of bringing about emancipation. The total abolition of slavery would do much good. The principle has begun since the revolution. Let us do what we may, it will come round."* To the declamations of Henry that the adoption of the constitution would be the renunciation of the right to navigate the Mississippi, Madison, on the twelfth, after a candid relation of what had transpired in congress, and giving the information that New Jersey and Pennsylvania were now strenuous against even any temporary cession of the navigation of that river, made the further irrefragable reply: "The free navigation of the Mississippi is our right. The confederation is so weak that it has not formed, and cannot form, a treaty which will secure to us the actual enjoyment of it. Under an efficient government alone shall we be able to avail ourselves fully of our right. The new government will have more strength to enforce it." "Should the constitution be adopted," said Monroe on the thirteenth, "the northern states will not fail to relinquish the Mississippi in order to depress the western country and prevent the southern interest from preponderating." + "To preserve the balance of American power," continued Henry, "it is essentially necessary that the right of the Mississippi should be secured, or the South will ever be a contemptible minority." + "This contest of the Mississippi," said Grayson on the fourteenth, "is a contest for empire, in which Virginia, Kentucky, the southern states are deeply interested. It involves this great national question, whether one part of the continent shall govern the other. From the extent of territory and fertility of soil, God and nature have intended that the weight of population should be on the southern side. At present, for various reasons, it is on the other. If the Mississippi be shut up, emigrations will be stopped entirely; no new states will be formed on the western waters; and this government will be a government of seven states." # To the last Grayson said: "The seven states, which are a majority, being actually in possession, *Elliot, iii., 648. Elliot, iii., 352. |