power was given to the general government to interfere with property in slaves held by the States; a fact reiterated and amplified and made the basis of innumerable laws and decisions for the next seventy years.1

John Tyler, after warmly enlarging on the iniquity of the slave trade, and criticising the Federal Convention for not prohibiting it, very cleverly utilized its neglect as evidence of danger in the plan and of the need of a Bill of Rights. The power of prohibiting the trade had not been expressly delegated to the Federal Convention, yet it would have had it by implication if the restraint running for twenty-one years had not been provided. This being true, could not every member see the danger there was in the plan of an infringement upon the inalienable rights of the States, and he concluded with the assertion that unless the "sweeping clause" was expunged, he should vote against the Constitution.2 George Nicholas quickly called attention to the inconsistency of these Anti-Federal arguments; the objectors to the Constitution found fault because the slave trade was to continue for twenty-one years, and at the same time because, by some latent operation, slaves were to be emancipated; thus at the same moment the plan was opposed for being promotive and destructive of slavery.

The prohibition on the States to emit bills of credit, or to make anything but gold and silver coin a tender in payment of debts, Henry thought-though admitting they were restrictions founded on good principles— might have the effect of obliging Virginia to pay for her share of the continental money, shilling for shilling. Madison admitted that there had been some speculation

1 See the history of the Thirteenth, Fourteenth and Fifteenth Amendments, Vol. iii post.

2 Id., 455.

among the States about continental money, and that the validity of claims would not be diminished by the adoption of the Constitution. Mason, taking up Henry's objection, foresaw the bankruptcy of the commonwealth. The amount due would surpass the value of the property of the United States; and as ex post facto laws could not be passed, the face value of the debt must be paid. The result would be that in settling so vast a debt the country would be ruined. Why, he asked, ruin the people by taxation from generation to generation to pay that debt? They might be taxed for centuries in order to give advantage to a few particular States in the Union and to a number of rapacious speculators. The enormous mass of worthless money which had been offered at a thousand to one would have to be paid at its full value in actual gold and silver.1

Madison answered that it was immaterial who held this quantity of paper money, which had been in circulation before the peace, or at what value they had acquired it, for it would not be affected by the Constitution. The claims against the United States were declared to be valid as they had been, but not more so. Under the Articles of Confederation, its value rested only on the obligation of public faith. It would be so under the Constitution. The people at large would not wish to put the public creditors in a worse situation, and certainly not to defraud them. But the alarm of State bankruptcy had been sounded, and Henry took it up with great vehemence. The South would be ruined. The people of the eastern States had speculated chiefly in this money and had packed away vast quantities in barrels. It had been acquired for the most inconsiderable

1 Id., 473,

trifle, and if the plan was adopted was to be paid in full. Let the South take warning; its property would be taken from it to satisfy this same infamous speculation.1 Nicholas answered that the debt would be paid according to real equity; Congress would not enhance its value and the debt would in no wise be increased. Moreover, Congress, and not the States, were answerable to the individual holders; therefore, the individual could call on no State. This would relieve Virginia of the terrible drain which Henry had prophesied.2

But though the debt was transferred to Congress, Mason replied, that body would not have the means of paying it. The method of payment was not prescribed in the Constitution; it would therefore come before the Federal Judiciary. The courts would have to decide against ex post facto laws; the money would have to be paid in full, and in order to enrich a few, the remaining citizens of the United States must suffer. The Federal government would make the necessary collections and regulate the claims of each holder with equity. In vain did Madison show that the validity of these claims would neither be decreased nor diminished by a change in the Constitution; and that Congress must make the law for redemption with which the States could not interfere. The whole continental debt amounted to a little more than one hundred millions,3 a considerable quantity of which had been destroyed. At the time when all of it was in existence the quota of Virginia amounted to no more than twenty-six millions. At forty for one, this would amount to about five hundred thousand dollars; an amount which he thought both equitable and honorable. If the situa

1 Id., 475.

2 Id., 477.

3 Compare with the account of the debt, Vol. I, page 253.

tion of the northern and southern States was reversed, he thought such an objection to the redemption of its real value as Henry and others had made, would, on good grounds, be pronounced by Virginia, very unreasonable.1

On the ground of domestic economy, as well as of State sovereignty, Mason objected to the clause prohibiting the States from levying duties on imports and exports, except what might be absolutely necessary for executing their inspection laws. But Madison replied that as all the States were not exporters, the clause had been adopted as being consistent with justice and equity, for otherwise States having the monopoly of the situation might impose heavy contributions on other States for their own exclusive advantage. The provision therefore tended to the common peace and harmony.2

All the objections that had been made in the Philadelphia Convention to the executive power vested in the Constitution were repeated with slight variation in Virginia. Mason, Monroe, Henry and Grayson left nothing unsaid to prejudice the members against this part of the plan, whether as to the manner of choosing the President; his re-eligibility; his powers or his association with the Senate in the appointment of officers or making treatties. Everything was objected to. These objections were answered, chiefly by Madison, as they had been answered in the Federal Convention.

The attack on the executive was less fierce than on the judiciary. Mason saw no protection, whatever, of the dearest rights of the community in a Constitution which allowed Congress to establish as many inferior courts as it chose.3 Nothing would be left to the State Courts,

1 Elliot, III, 480-481.

2 Id., 483; June 17, 1788.

3 Id., 521; June 18, 1788.

118

THE FEDERAL JUDICIARY.

and thus the general government would absorb all the powers of the States. To all who thought that one rational consolidated government was best for America, this extensive judicial authority would be agreeable, and he intimated that his fears had been entertained by many members of the Federal Convention.1 Madison, at this point, demanded an explanation of Mason; insinuations such as this, he thought, put the late Convention in a false light. Mason's answer was a general charge that such a belief was notorious. The powers which the Constitution gave to the federal judiciary he interpreted as being without restraint and liable to be extended to a dangerously oppressive length.

Though much of the jurisdiction granted was unquestionably right he could not see the propriety of giving the judiciary jurisdiction in disputes between a State and the citizens of different States, and between a State and its citizens.2 The jurisdiction given in all cases, in law and equity, arising under the Constitution and the laws of the United States, would include, he declared, all the officers of the government, therefore they would be taken under the powerful protection of courts which were established under the Constitution; and as the judges were not appointed by the States, all suitors would be at the mercy of the court; therefore justice could not be expected. Moreover, how could a poor man meet the expense of a journey of four or five hundred miles to attend a federal court, and bring with him all his wit

nesses.

More perfectly to express his objections Mason brought forward an amendment limiting the powers of the judiciary and eliminating the jurisdiction of which he had