MADISON'S ANALYSIS OF THE PLAN.

109

government were called upon to endeavor to establish an adequate system. Madison could see no danger in submitting to practices and experiments, which, in theory, seemed to be founded on the best principles. But he was specific in his reply to Henry and Grayson, who claimed that the Constitution proposed did not compare with the British system, in fixing responsibility. If the number of members of Parliament elected by the influence of the Crown was deducted from the total membership of the House of Commons, the remaining members would not bear a greater proportion to the population of England than the number of representatives in Congress, as fixed by the Constitution, would bear to the United States. Even if this were not true, there would be a still greater responsibility in the proposed plan. Members of the House of Representatives were to be chosen for two years; members of Parliament were chosen for seven. Any citizen might be elected to Congress, but, in Great Britain, no one could be chosen to represent a county. unless he had an estate of the value of six hundred pounds sterling a year, nor could he represent a corporation without having an annual estate of three hundred pounds.1 His conclusion, therefore, was a just one: that if confidence was due to the government in England, it was due tenfold in America.2

But even this exact analysis wrought no conviction in Henry's mind. He saw in it only a confession that the government to be formed was national and without a single federal feature. Its friends had alleged that it was national or federal as might best suit their argu

1 For the property qualifications of Senators and Representatives in the State governments at this time see my Constitutional History of the American People, 1776-1850, I, 68-71, 77-79. 2 Elliot, III, 395.

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POWERS OF CONGRESS.

ments, but now all doubt was past. The State governments would form no part of the new plan. The most essential objects of government were to be administered by Congress. If the government was to be republican, it was to be consolidated not confederated, and Henry saw no safety for the country in such a plan.1 Lee, of Westmoreland, very properly complained that the opponents of the plan paid no regard to the necessity of the Union, which was the great object before the country.

Some of the Anti-Federalists declared that, under the power in the Constitution to regulate their compensation, the wages of members of Congress would be so low that the rich alone could serve, while another objector asserted that they would be so high as to ruin the country. The concession of the Federalists that the objects of the government were general and equally affected the interests of the people of every State, did not warrant Henry's conclusion that the plan was to establish a national government. Henry's proof, he said, consisted in ascribing infinitude to powers clearly limited and defined for certain designated purposes.2 But Henry repeated his objections to a standing army, which, he said, the power of Congress over the militia would make possible. Corbin replied that all confederate governments had the care of the national defense, and that Congress ought to have it. As the United States explicitly guaranteed to every State in the Union a republican form of government, and was under obligation to protect each from invasion and domestic violence, he thought there was ample power in the States to use their own militia and to call on Congress for the militia of other States.3 Moreover, as representa

1 Id., 395-399.

2 Id., 405-406.

3 Compare Madison's argument on the same point in the Federalist, No. LXIII. It appeared in the Independent Journal January 22 (?) 1788.

tives were chosen every second year, it would be practically impossible to make laws which would destroy the States.1 John Marshall pointed out that Congress was empowered to call forth the militia only for continental purposes, but the Constitution did not say that the power given to the States by the people was taken away. thought it unquestionable that the State governments could call forth the militia under the Constitution in the same manner as they could have done under the Articles.2 But this interpretation was rejected by the Anti-Federalists.

He

Mason argued that the exclusive power of Congress over the Federal district would be exceedingly dangerous, as the power might be extended without limitation, and the district under Congress become the sanctuary of the blackest crimes. As the Federal courts were to sit there, the danger was the greater.3 Madison's reply was sufficient, that it would seem to be the last thing to enter into the mind of any man to grant exclusive advantages, within a very circumscribed district, to the prejudice of the community at large. But Grayson saw in the proposed Federal District a rendezvous for fugitive slaves, who, until the District was made a State, would not be given up; for the executive of a State "could not apply to the ten mile square" for their rendition. It is doubtful whether such far-fetched objections as this influenced even the most wavering members.*

It was now the fourteenth of June, and the debate had continued long enough to establish a general conviction that defects in the Constitution might be remedied by amendments. Henry announced that the necessity of a

112

THE CONSTITUTION AND THE COMMON LAW.

Bill of Rights in the new government appeared to him greater than for any government that had ever been established, and Mason specified one amendment necessary, that the rights not given to the general government were retained by the States.1 Henry based his argument largely on the fact that the Constitution of Virginia had a Bill of Rights. Nicholas answered that this was not a conclusive reason for adding one to the proposed Constitution; rather was the burden of proof on Henry to show that it was necessary to the Constitution of Virginia. Several State Constitutions had no such Bill,2 and yet they were States as free as Virginia, and their liberties were as secure. In Virginia, all powers were given to the government without any limitation, but it would be different in the general government, to which certain special powers would be delegated for certain purposes. It was an unsettled matter whether it was safer to grant general or limited powers. A Bill of Rights was no security, and in Virginia it had been violated in many instances.

3

Henry had objected that the Constitution did not declare the common law to be in force. This Nicholas pointed out was an advantage, because otherwise the law would be immutable, while now Congress could modify it according to the demands of the country; but the common law was not excluded, as the Constitution was silent respecting it. A Bill of Rights was no more than an

1 Id., 444.

2 For the list see page 22, note.

3 Compare the Federalist, No. LXXXIV.

4 There is no common law of the United States in the sense of national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law and subject to such alteration as may be provided by its own statutes. Wheaton vs. Peters, 8 Peters, 591. As to

THE SLAVE TRADE.

1

113

acknowledgment of the pre-existing claim to rights in the people. They belonged to the people as much as if they had been inserted in the Constitution. This, it may be observed, was the usual argument of the Federalists against the addition of a Bill of Rights. Even admitting that it was proper for the Federal Convention to have inserted a Bill of Rights, Nicholas argued that it was not proper in the Virginia Convention to propose it as the condition of the accession of the State to the Union. Its omission was not a sufficient cause for any member to refuse to ratify.2

The convention had now reached the clause allowing the importation of slaves for twenty years. Mason attacked it vehemently, as he had done in the Federal Convention. Madison expressed his regret at its inclusion in the plan, but explained that it was the price of securing the approval of the Southern States.3 The Union, he said, would be in no worse situation than before. Under the Articles, the slave-trade might be continued forever, but by this clause an end might be put to it after twenty A limited tax might be laid on it, in the meantime, otherwise Congress might lay such a tax as would amount to a prohibition of the trade, and he cited, as compensatory, the fugitive slave clause which would secure property in which Virginia was greatly interested, and would be better than any existing law. But he called the attention of the House to the fact that no

years.

the common law of the State constitutions, see the opinion of the Justices of Rhode Island, March 30, 1883, Thayer's cases, 224, and the argument of Daniel Webster in Luther vs. Borden (7 Howard, January 27, 1848) Webster's Works, VI, 227.

1 Federalist No. LXXXIV; Wilson's speech, page 22, ante. 2 Elliot, III, 450-451.

3 This reference to the Carolinas and Georgia, as the South, may be compared with the reference made in the South Carolina convention to Virginia as the North; page 62, ante.