124

LACK OF A BILL OF RIGHTS.

should extend both to law and fact coincided with the practice of the States. The Constitution empowered Congress to make whatever exceptions it might judge best as to law and fact in the appellate jurisdiction of the Supreme Court, and these exceptions would be determined by the interest and liberty of the people.1

Henry had likened the establishment of inferior federal tribunals, with jurisdiction over controversies between citizens of a State and foreign citizens, to a retrospective law.2 Marshall answered that there was a difference between the creation of a tribunal to give justice and effect to an existing right, and the creation of a right that did not exist before. An individual is bound by his contracts, and the creation of a new court would not amount to a retrospective law. Both Mason and Henry had made much of the omission of a clause providing for a trial by jury; and both had cited the Constitution of Virginia as the proper model. Marshall answered that it was the Bill of Rights in the Virginia Constitution that directed trials to be by jury, yet this was no security, for the Bill of Rights was not a part of the Constitution. The proposed national Constitution did not exclude Congress from giving a trial by jury in civil cases, and in this respect was like the government of Virginia. The Virginia Legislature did not give a trial by jury where it was unnecessary, but wherever it was thought expedient; Congress would do the same, as it was founded on the same principle."

Chancellor Wythe, who had not participated in the dis

1 Id., 560.

2 Id., 539-541.

3 Constitution, 1776; Bill of Rights, section eleven.

4 Id., 561.

5 Id., 561.

THE CONSTITUTION A COMPACT.

125

cussion, and who, because of sickness in his family, had left the Federal Convention before the signing of the Constitution, was a firm supporter of it in Virginia, but now, after a careful comparison between it and the Articles, he admitted its imperfections and the propriety of some amendments. Experience would develop the plan and show where alterations were necessary. The critical situation of America and the extreme danger of dissolving the Union rendered it necessary, in his judgment, to adopt it first and amend it afterward. This could easily be done in the manner proposed by the Constitution, as amendments were desired by the States and had already been proposed by several. He then moved that the Constitution should be ratified, and whatsoever amendments might be necessary should be recommended to the consideration of the first Congress under the Constitution.1

Henry objected to this procedure, because it would admit that the new system was defective in the most essential particulars; therefore, its defects should first be remedied. All agreed that the Constitution was a compact, yet it was contrary to the experience of the whole world to enter into a compact and afterwards to settle its terms.2 Henry's plan was to refer a Declaration of Rights, and amendments to the most exceptional parts of the Constitution, to the other States in the Confederacy for their consideration, previous to ratification; and he submitted a Declaration and amendments which, with slight modification, were ultimately adopted. As the prospect of ratification became brighter, Henry became

1 Id., 587; June 24, 1788.

2 Id., 591.

3 Id., 593.

4 Id., 657-661. The Declaration of Rights contained twenty articles and the amendments twenty also. As to the extent of their incorporation in the first ten amendments, see pp. 199-264.

126

POWER TO ABOLISH SLAVERY.

more vehement and aggressive. He saw no danger of disunion among the States, but the Constitution would inevitably produce it. Both New York and North Carolina would never accede to the plan till it was amended, and a great part of Virginia, meaning Kentucky, was decidedly against it as it stood. Virginia had proposed the Convention at Annapolis and that of Philadelphia, but if she assented to the Constitution she would lose her preeminence; and he gave notice that he would have no hand in subsequent amendments. His language was so vehement that Randolph interpreted it as advocating secession unless previous amendments were adopted.1

As a last resort Henry attacked the clause limiting the slave trade, as proof that the Constitution gave Congress the power to abolish slavery and to provide for the enrollment of black men in the army.2 While he deplored slavery he believed that prudence forbade its abolition. The general government ought not to set the negroes free, because the majority of the States were not in sympathy with emancipation, but he clearly saw the political and social condition of the country when he observed that the majority of Congress would come from the North, while the slaves were in the South.4

3

The clause empowering Congress to prohibit the slave trade after 1808, he said, would jeopardize the property of the people of Virginia, and put it into the hands of

1 Id., 597.

2 Id., 590.

3 For a history of the attitude of the States toward the negroes free and slave, see my Constitutional History of the American People, 1776-1850, I, Chapters vii and xii; and II, Index, "Negroes and Slavery."

4 In 1790, there were seven free States and five slave-holding, and the House of Representatives consisted of thirty-five members from the free States and thirty from the slave.

THE ABOLITION OF SLAVERY.

127

those who were not situated like its people.1 Randolph replied to Henry's objection to the restriction of the slave trade that the southern States, and even South Carolina herself, had conceived slave property to be secure by the words of this clause; and that not a member of the Virginia delegation to Philadelphia had entertained the smallest suspicion of the abolition of slavery. He challenged Henry to point out the clause where this formidable power of emancipation was inserted, and to make assurance doubly sure, he quoted the clause for the rendition of fugitive slaves as sufficient proof of the pro-slavery character of the Constitution.2 But the voice of the future was heard as well as the voice of the past. Zachariah Johnson, from Augusta county, after briefly giving the reasons why he should support the Constitution, objected to Henry's Bill of Rights, that it did not acknowledge that all men by nature are equally free and independent. He had no sympathy with Henry's hostility to emancipation. The principles of emancipation, he said, had begun to work since the Revolution, and whatever the people of Virginia might do, emancipation would come at last. He looked upon slavery as the cause of the impiety and dissipation so widely disseminated among the American people; total abolition would do much good.3

The session had been protracted nearly four weeks, the delegates were becoming weary, and objectors to the new plan were merely repeating their objections. When all had been said the alternative remained; Union or no Union,* and the wavering members were beginning to believe that they would lose nothing and might gain much by sup

1 Elliot, III, 591.

2 Id., 599.

3 Id., 648.

4 Washington to Randolph, January 8, 1788; Sparks IX, 297.

128

CONDITIONAL RATIFICATION.

porting the new plan. Assured, now, that the navigation of the Mississippi was not to be surrendered, some of the Kentucky members became friendly to the new plan. Even such ardent Anti-Federalists as Richard Henry Lee and George Mason were not surpassed by Madison or Marshall in their opposition to paper money. Yet there were many members, and not all from the rural districts, who hesitated to vote for a government which would establish public credit and maintain the obligation of contracts. In the ardor of his innumerable objections, Henry said many things which should not be construed too strictly against him; thus, when he exclaimed that he might yet be called a rebel,' but that his neighbors would protect him. This was interpreted rather as exuberance in speech than a serious declaration, for Henry's last words in the discussion were that if he should be in the minority, he would have the painful sensations arising from the conviction of being overpowered in a good cause; he would yet be a peaceful citizen, and, deprecating violence, should devote himself to remedy the defects of the system in a constitutional way.2

It was now the twenty-fifth of June and the convention after a more intense debate than had been heard in any other Commonwealth, took up the amendments which Henry and his friends had proposed. And first, by a majority of eight votes, it decided that these amendments should not be previous, but subsequent, to ratification.3 This meant that Virginia ratified unconditionally, unless its action be construed as implying that Congress would propose these amendments to the States. By a vote of eighty-nine to seventy-nine, the Constitution was ratified

1 Id., 546.

2 Id., 652.

8 Id., 653.