260 RESULTS OF CONFERENCE. that on the following day the Senate concurred and the amendments were adopted,1 is about all we know of their history from the time the Special Committee of Three was appointed by the House. But meanwhile the amendments had undergone great changes. The seventeen had become twelve and, of these twelve, the last ten were destined to become the first ten of the Constitution.2 which the proportion shall be so regulated by Congress that there shall not be less than one representative for every fifty thousand persons. Art. II. No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened. Art. III. Same as Constitution, Amendment I. 1 Annals, 90. 2 Madison, writing of the Senate amendments: "Alterations which strike, in my opinion, at the most salutary articles. In many of the States, juries, even in criminal cases, are taken from the State at large; in others, from districts of considerable extent; in very few, from the county alone. Hence, a dislike to the restraint with respect to vicinage which has produced a negative on that clause. A fear of inconvenience from a constitutional bar to appeals below a certain value, and a confidence that such a limitation is not necessary, have had the same effect on the article." Letter to Edmund Randolph, September 14, 1789. They (the amendments) were far short of the wishes of our convention, but as they are returned by the Senate they are certainly much weakened. The most essential danger from the present system arises, in my opinion, from its tendency to a con THE AMENDMENTS RATIFIED. 261 While they were before the States, North Carolina and Rhode Island ratified the Constitution. The first State to ratify the amendments was New Jersey, on the 20th of November, 1789; the last was Virginia,1 on the 15th of December, two years later. Massachusetts, Connecticut and Georgia are not recorded as giving them their assent. The ratification of the amendments by Rhode Island was announced to Congress by Washington, on the last day of June, 1790.2 Rhode Island was the ninth State to approve them, and its act made them a part of the Constitution. Fourteen years passed before the Constitution was again amended. During the interim political parties were organized, great constitutional issues arose and the government passed into the control of the party which, in its early history, had opposed the ratification of the Constitution. Many amendments were proposed during these fourteen years. In order to simplify the narrative, I will next consider the causes and the adoption of the eleventh and twelfth amendments, and then return to the order of events and the organization of the federal government. solidated government instead of a Union of confederated States." Thinks the United States too extensive for a consolidated government; a new convention desirable. R. H. Lee to Patrick Henry, September 14, 1789. 1 The Virginia Senators, Lee and Grayson, to the Speaker of the Virginia House of Delegates, with copy of the XII Amendments: "It is impossible for us not to see the necessary tendency to consolidate empire in the natural operation of the Constitution, if no further amended than as we proposed, and it is equally impossible for us to be not apprehensive for civil liberty when we know of no instance in the records of history that shows a people ruled in freedom when subject to one undivided government and inhabiting territory so extensive as that of the United States and when, as it seems to us, the nature of man and of things pre 262 OPINIONS ON AMENDMENTS. vents it." "Such amendments therefore as may secure against the consolidation of the State governments we devoutly wish to see adopted." September 28, 1789. Lee's Lee, II, 100. In a letter to Patrick Henry R. H. Lee remarks on no prospect of further amendments this session. Regrets that Virginia rejected those proposed: "They (amendments) inculcate upon the minds of the people just ideas of their rights; it will always be hazardous for rulers, however possessed of means, to undertake a violation of what is generally known to be right and to be encroachments on the rights of the community; besides that by getting as much as we can at different times, we may at last come to obtain the greatest part of our wishes." Advises a campaign in Virginia to elect members of Congress who will "exert themselves to procure such additional amendments as not yet been made." June 10, 1790. Lee's Lee, II, 102. The amendments were rejected by Virginia at first. While they were before the Virginia Legislature Madison wrote to Washington: "The fate of the amendments proposed by Congress to the General Government is still in suspense. In a committee of the whole House (of Delegates of Virginia) the first ten were acceded to with little opposition, for on a question taken on each separately there was scarcely a dissenting voice. On the two last, a debate of some length took place, which ended in rejection. Mr. Edmund Randolph, who advocated all the others, stood on the contest in the front of opposition. His principal objection was pointed against the word "retained" in the eleventh proposed amendment, and his argument, as I understood it, was applied in this manner: that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of, and as there was no criterion by which it could be determined whether any particular right was retained or not, it would be more safe and more consistent with the spirit of the first and seventeenth amendments proposed by Virginia, that this reservation against constructive power should operate rather as a provision against extending the powers of Congress by their own authority than a protection to rights reducible to no definite certainty. But others, among whom I am one, see not the force of this distinction. Whatever may be the fate of the amendments submitted by Congress, it is probable that an application for further amendment will be made by this Assembly; for the opposition to the Federal Constitution is, in my opinion, reduced to a single point, the power of direct taxation. Those ACTION OF THE STATES. 263 who wish the change are desirous of repeating the application (i. e., already made in the Virginia amendments proposed by the ratifying convention of 1788), while those who wish it not are indifferent on the subject, supposing that Congress will not propose a change which would take from them a power so necessary for the accomplishment of those objects which are confided to their care. Letter to Washington, from Orange, Va., December 5, 1789; Works of Madison, I, 497. Madison on the loss of the amendments in Virginia: "On some accounts, this event is no doubt to be regretted, but it will do no injury to the General Government. On the contrary, it will have the effect with many of turning their distrust towards their own Legislature." Madison to Washington, Georgetown, January 4, 1790; Works, I, 500. Virginia ratified December 15, 1791. 2 Messages and Papers of the President's, I, 76. The twelve amendments submitted to the State Legislatures were ratified, rejected, or not acted upon by them as follows: New Jersey, November 20, 1789, ratified all except No. 2. Maryland, December 19, 1789, ratified Nos. 1, 2, 3, 9, 12; rejected Nos. 4, 5, 6, 7, 8, 10, 11. North Carolina, December 22, 1789, ratified all the amendments. South Carolina, January 19, 1790, ratified all. New Hampshire, January 25, 1790, ratified all except No. 2. Delaware, January 28, 1790, ratified all except No. 1. Pennsylvania, March 10, 1790, ratified all except No. 1, and ratified No. 1 September 26, 1791. New York, March 27, 1790, ratified all. Rhode Island, June 15, 1790, ratified all except No. 11. Vermont, November 3, 1791, ratified all. Virginia, from October 25 to December 15, inclusive, 1791, ratified them all. Massachusetts, Connecticut and Georgia, so far as the record at the Department of State shows, did not act on them. Thus the first two were rejected by the action of New Jersey, New Hampshire, Delaware, and by the non-action of Massachusetts, Connecticut and Georgia. For the official notices of the action by the State Legislatures, see Documentary History, II, Washington, Department of State: 1895, pp. 325-390. The ratifications are given in the Journals of the House (1st Cong., 2nd Sess.), and of the Senate. CHAPTER VII. THE ELEVENTH AND TWELFTH AMENDMENTS. When the Constitution was completed and published for the consideration of the country, a lawyer, familiar with American history and critically analyzing the new plan, would undoubtedly have pronounced the judiciary its most novel feature. The cumbersome device attempted by the Articles of Confederation as a substitute for a judiciary had failed. On no subject were the framers of the Constitution more at harmony than the necessity of providing a national court of last resort. In forming it, they had to proceed without experience and almost without precedent. Their own interpretation of the necessities of the situation was their chief guide. They did not organize a judicial department expressly for the purpose of interpreting the Constitution. It was to be a court of last resort in law and equity. In settling whatever business might come before it, the court would determine the meaning of laws and thus, of course, interpret the Constitution. Its primary function would be to hear and determine suits between parties, whether individuals, or corporations, private or public, and its jurisdiction was made comprehensive. The Convention, at best, could only vest the judicial power; outline its jurisdiction; assure its organization and independence, and leave the details of whatever judicial system might be thought best to be worked out by the wisdom of Congress. Thus it followed that our national judiciary was organized by that great law of 1789, known as the Judiciary Act, of which Ellsworth was the chief author, and with which |