held to be indispensable.* "He will be the main pillar of the constitution," thought Jefferson; "but though an immensely powerful one, it is questionable whether he can bear the weight of such a host." But the plan for a southern confederacy was crushed by the fidelity of South Carolina; and Washington, who had foreseen the issue, cheered Madison on with good words: "Eight affirmatives without a negative carry weight of argument if not eloquence with it that would cause even 'the unerring sister' to hesitate." + On the day appointed for the meeting of the convention a quorum was present in Richmond. It was auspicious that Edmund Pendleton, the chancellor, was unanimously chosen its president. The building which would hold the most listeners was made the place of meeting, but Henry was alarmed at the presence of short-hand reporters from the Philadelphia press, as he wished" to speak the language of his soul" # without the reserve of circumspection. During the period of the confederation, which had existed but little more than seven years, it had become known that slavery and its industrial results divided the South from the North; and this conviction exercised a subtle influence. George Mason, following the advice of Richard Henry Lee, and the precedent of Massachusetts, proposed that no question relating to the constitution should be propounded until it should have been discussed clause by clause; and this was acquiesced in unanimously. The debates which ensued cannot be followed in the order of time, for Henry broke through every rule; but an outline must be given of those which foreshadowed the future. Patrick Henry dashed instantly into the battle, saying: "The constitution is a severance of the confederacy. Its language, 'WE THE PEOPLE,' is the institution of one great consolidated national government of the people of all the states, instead of a government by compact with the states for its agents. The people gave the convention no power to use their name." A * Washington in Rives, ii., 547. Jefferson, Randolph's ed., ii., 270; in Rives, ii., 558. #Penn. Packet, 12 June 1788. R. H. Lee to G. Mason, 7 May 1788. Life of R. H. L., ii., 89. A Elliot, iii., 21-23. "The question," said Randolph, "is now between union and no union, and I would sooner lop off my right arm than consent to a dissolution of the union." "It is a national government," said George Mason, losing his self-control and becoming inconsistent. "It is ascertained by history that there never was one government over a very extensive country without destroying the liberties of the people. The power of laying direct taxes changes the confederation. The general government being paramount and more powerful, the state governments must give way to it; and a general consolidated government is one of the worst curses that can befall a nation." + "There is no quarrel between government and liberty," said Pendleton; "the former is the shield and protector of the latter. The expression 'We the people' is a common one, and with me is a favorite. Who but the people can delegate powers, or have a right to form government? The question must be between this government and the confederation; the latter is no government at all. Common danger, union, and the spirit of America carried us through the war, and not the confederation of which the moment of peace showed the imbecility. Government, to be effectual, must have complete powers, a legislature, a judiciary, and executive. No gentleman in this committee would agree to vest these three powers in one body. The proposed government is not a consolidated government. It is on the whole complexion of it a government of laws and not of men." + Madison explained at large that the constitution is in part a consolidated union, and in part rests so completely on the states that its very life is bound up in theirs. And on another day he added: "The powers vested in the proposed government are not so much an augmentation of powers in the general government as a change rendered necessary for the purpose of giving efficacy to those which were vested in it before." # The opposition set no bounds to their eulogy of the British constitution as compared with the proposed one for America. "The wisdom of the English constitution," said Monroe, "has given a share of the legislation to each of the three branches, + Elliot., iii., 29-33. Elliot, iii., 35-41. #Elliot, iii., 86-97, and 259. *Elliot, iii., 25-26. which enables it to defend itself and to preserve the liberty of the people. In the plan for America I can see no real checks."* "We have not materials in this country," said Grayson, "for such a government as the British monarchy; but I would have a president for life, choosing his successor at the same time; a senate for life, with the powers of the house of lords; and a triennial house of representatives, with the powers of the house of commons in England." + "How natural it is,” said Henry, "when comparing deformities to beauty, to be struck with the superiority of the British government to the proposed system. In England self-love, self-interest stimulates the executive to advance the prosperity of the nation. Men cannot be depended on without self-love. Your president will not have the same motives of self-love to impel him to favor your interests. His political character is but transient. In the British government the sword and purse are not united in the same hands; in this system they are. Does not infinite security result from a separation?" + Madison on the fourteenth replied: "There never was, there never will be, an efficient government in which both the sword and purse are not vested, though they may not be given to the same member of government. The sword is in the hands of the British king; the purse in the hands of the parliament. It is so in America, as far as any analogy can exist. When power is necessary and can be safely lodged, reason commands its cession. From the first moment that my mind was capable of contemplating political subjects I have had a uniform zeal for a well-regulated republican government. The establishment of it in America is my most ardent desire. If the bands of the government be relaxed, anarchy will produce despotism. Faction and confusion preceded the revolutions in Germany; faction and confusion produced the disorders and commotions of Holland. In this commonwealth, and in every state in the union, the relaxed operation of the government has been sufficient to alarm the friends of their country. The rapid increase of population strongly calls for a republican organization. There is more responsibility in the proposed government than in the English. Our representatives are chosen *Elliot, iii., 218, 219. Elliot, iii., 279. Elliot, iii., 387, 388. 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 |