USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 18
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"In making known to you the objections of the people of this Commonwealth to the new plan of government, we deem it unnecessary to enter into a particular detail of its defects, which they consider as involving all the great and unalienable rights of freemen. For their sense on this subject we refer you to the proceedings of their late Convention, and the sense of this General Assembly as expressed in their resolutions of the [30th] of [October] last. 174
"We think proper, however, to declare that, in our opinion, as those objections were not founded in speculative theory, but deduced from principles which have been established by the melancholy example of other nations in different ages, so they will never be removed until the cause itself shall cease to exist. The sooner, therefore, the public apprehensions are quieted and the Government is possessed of the confidence of the people the more salutary will be its operations, and the longer its duration.
"The cause of amendments we consider as a common cause; and since concessions have been made from political motives, which we conceive may endanger the republic, we trust that a commendable zeal will be shown for obtaining those provisions which experience has taught us are necessary to secure from danger the unalienable rights of human nature.
"The anxiety with which our countrymen press for the accom- plishment of this important end will ill admit of delay. The slow forms of congressional discussion and recommendation, if, indeed, they should ever agree to any change, would, we fear, be less certain of success. Happily for their wishes, the Constitu-
17+ These two blanks for the date were omitted to be filled by an over- sight.
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tion hath presented an alternative by admitting the submission to a Convention of the States. To this, therefore, we resort as the source from whence they are to derive relief from their present apprehensions. We do, therefore, in behalf of our constituents, in the most earnest and solemn manner, make this application to Congress, that a convention be immediately called of deputies from the several States, with full power to take into their conside- ration the defects of this Constitution that have been suggested by the State Conventions, and report such amendments thereto as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity the great and unalienable rights of mankind."
A draft of a letter to Governor George Clinton, of New York, the President of the Federal Convention of that State, was pre- sented and read, as follows:
"Sir,-The letter from the Convention of the State of New York hath been laid before us since our present session. The subject which it contemplated had been taken up, and we have the pleasure to inform you of the entire concurrence in senti- ment between that honorable body and the representatives in Senate and Assembly of the freemen of this Commonwealth. The propriety of immediately calling a Convention of the States to take into consideration the defects of the Constitution was admitted, and, in consequence thereof, an application agreed to, to be presented to the Congress as soon as it shall be convened, for the accomplishment of that important end. We herewith transmit to your Excellency a copy of this application, which we request may be laid before your Assembly at their next meeting. We take occasion to express our most earnest wishes that it may obtain the approbation of New York, and of all other sister States."
A draft of another letter, which was addressed to the States, requesting their concurrence with Virginia in calling the Con- vention, was also reported.
As soon as the resolution and the drafts of letters were read, a motion was made to amend the same by substituting in lieu thereof the following form of an application and draft of letters- to-wit:
"The Legislature of Virginia to the Congress of the United States, sends greeting: The Convention of the representatives of
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the good people of this Commonwealth, having on the 25th day of June last ratified the Constitution, or form of government, pro- posed by the Federal Convention on the 17th of September, 1787, and having declared, in their act of ratification, that any imperfections that might exist in the said Constitution ought rather to be examined in the mode prescribed therein for obtain- ing amendments than by a delay, with a hope of obtaining pre- vious amendments to bring the Union into danger; and, in order to relieve the apprehensions of those who might be solicitous for amendments, having resolved that whatever amendments might be deemed necessary ought to be recommended to the consideration of Congress, which should first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and, on the 27th day of the same month of June, agreed to certain amendments to the said Constitution, which were transmitted, together with the rati- fication of the Federal Constitution, to the United States, in Congress assembled, which amendments the said Convention did, in the name and behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress to exert all their influence, and use all legal and reasonable methods, to obtain a ratification of in the manner provided by the said Constitution; and, in all congressional laws to be passed in the mean time, to conform to the spirit of the said amendments as far as the said Constitution would admit :
".This Legislature, fully concurring in sentiment with the said Convention, and solicitous to promote the salutary measures by them recommended, do, in consideration of the unanimity with which said amendments were agreed to, and a just sense of their utility, earnestly call upon the Congress of the United States to take the said amendments under their immediate consideration, and also those which may have been submitted by the Conven- tions of other States, and to act thereupon in the manner pre- scribed by the fifth article of the Federal Constitution, either by proposing the necessary alterations to the consideration of the States, or by calling a convention to deliberate on the subject, as to them shall seem most likely to promote the peace and general good of the Union. We pray that Almighty God in His goodness and wisdom will direct your councils to such measures as will establish our lasting peace and welfare, and
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secure to our latest posterity the blessings of freedom; and that He will always have you in His holy keeping."
The draft of a letter to the States on the subject was in these words:
" We beg leave to submit to your consideration a copy of our answer to the circular-letter from the Convention of our sister State of New York, and also a copy of an address, which we think it our duty to make to the Congress at their first meeting. We flatter ourselves that you will not hesitate in making a simi- lar application, the object being to establish our rights and liber- ties on the most immutable basis. May God have you in His holy keeping."
This amendment was drawn with greater tact than that which was offered on the 30th of October, and which was rejected by such an overwhelming vote. It proposed to make the mode of obtaining amendments discretionary with the Congress; while, with the view of enlisting the sympathies of some pious mem- bers from the West, who, like McKee, had shown a strong inclination to side with the anti-Federalists, and who might con- sider a reference to a Superintending Power on such an occasion altogether wise and becoming, a religious tinge was given to the whole. The anti-Federal majority of two to one of the 30th of November fell to twenty-two, which, though a fair majority in a · house of one hundred and twenty-two members, was a consider- able falling off. The vote on the amendment, which was to strike out the report of the Committee of the Whole, and insert the Federal programme in its stead, was ayes fifty, noes seventy- two. So the amendment failed; and the question recurring on the adoption of the original report, was decided in the affirma- tive, without a division.
As the names of the members who had been members of the Convention may explain the character of the vote, we will state that those who voted for striking out the report of the committee and inserting the amendment in its place were the Speaker (General Matthews), Wilson Cary Nicholas, Johnston, McFerran, David Stuart, Woodcock, Alexander White, Thomas Smith, Clendenin, Fisher, Breckenridge, Powell, Callis, Corbin, Worme- ley, Ronald, John Stringer, Tomlin, and Allen, and those who voted against striking out and in favor of the report of the com- mittee were William Cabell, John Trigg, Henry Lee (of Bour-
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bon), Conn, Binns Jones, Harrison, Strother, Joel Early, King, John Early, Cooper, Guerrant, Roane, Green Clay, A. Robertson, Kennon, Riddick, Patrick Henry, Bland, Bullitt, McKee, Carter, Monroe, Edmunds, and Edmiston. As soon as the vote was declared Bullitt was ordered to carry the instrument to the Senate, and request its concurrence.
There was no difficulty in passing all the laws necessary for setting the Constitution in operation. The bill for appointing electors to choose a President passed unanimously. The bill for electing representatives pursuant to the Constitution of govern- ment of the United States passed unanimously, after a smart skirmish in the House before its engrossment, on a motion to strike out the words: "being a freeholder, and who shall have been a bona-fide resident for twelve months within such dis- trict," which was rejected by thirty-two ayes to eighty noes; the members of the House who had been members of the Con- vention voting as follows:
AYES -- Johnston, McFerran, David Stuart, Woodcock, Fisher, Powell, Callis, Wormeley, Ronald, Tomlin, and Allen.
NOES-William Cabell, John Trigg, Binns Jones, Harrison, Strother, Joel Early, King, Alexander White, John Early, Thomas Smith, Guerrant, Cooper, Breckenridge, Roane, Green Clay, A. Robertson, Kennon, Corbin, Riddick, Patrick Henry, Bland, Bullitt, McKee, Carter, Monroe, Briggs, and Edmiston.
The striking out the word "freeholder" had no reference to the right of suffrage, which has been discussed so freely within the last third of a century, but that word, with the qualification of residence, was introduced into the bill to prevent prominent men from being chosen elsewhere than in the district of their domicile. The opponents of the Constitution had been defeated by the policy of choosing delegates at large, and were deter- mined to put a stop to it; while many of the members present, who might aspire to a seat in Congress, probably thought that there would be, as there was, plenty of candidates at home, with- out inviting others from abroad. A similar motion was made in the Senate, and failed by a vote of three to twelve-Burwell Bassett in the minority, and Pride and Joseph Jones in the majority. Stevens T. Mason happened to be out of his seat at the calling of the names.
The election of the senators of the United States in Congress
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was held on the 8th of November. Richard Henry Lee, Wil- liam Grayson, and James Madison were nominated, and, on counting the ballots, the first two gentlemen named were declared to be chosen. The election of Lee, whose letter opposing the adoption of the Constitution was one of the charts of the times, and of Grayson, whose exertions in resisting its ratification on the floor of the Convention were exceeded by those of none other, shows the temper of the Assembly. The result, only of a vote by ballot, is to be found in the Journals; but it is stated by Wirt, who evidently obtained his information from some of the members, that these gentlemen were nominated together by Patrick Henry, and received a large majority of the votes. But, while the Assembly preferred Lee and Grayson to Madison, it was from no feeling of pique against the last named. The decision was made on just parliamentary grounds. To show that Madison was still held in high esteem by the majority which declined to send him to the Senate, when the election of mem- bers to the old Congress was held a few days before he was chosen one of a delegation, consisting of Cyrus Griffin, John Brown, John Dawson, and Mann Page, for the term beginning the following November and ending the following March, which constituted the congressional year.
A resolution was adopted requesting the Executive to make known, by proclamation, the times and places for appointing electors to choose a President of the United States; and an act was passed concerning the credentials of the senators in Con- gress. All the courts of the State were passed in review. An act was passed reconstructing the High Court of Appeals; and Edmund Pendleton, John Blair, Peter Lyons, Paul Carrington, and William Fleming, the former judges, were put through the forms of a re- election. The right of the Assembly to determine the judicial tenure, by repealing the act establishing a court, seems to have been taken for granted by both houses, and, in the absence of all protests by the judges, we may infer that they were of the same opinion. The same men were re-elected the. judges of the new court; but the wrong, if wrong there was, was as flagrant whether the judges were re-elected or not. That there could not have been a secret understanding with the judges, we may safely conclude from their fearlessness in resist- ing unconstitutional legislation, and especially on a memorable
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occasion when a law interfering with the Court of Appeals was pronounced unconstitutional. They would have deserved to be cashiered if, believing the judicial tenure could not be determined by a repeal of the act creating the court in which the judge held his seat, they had quietly allowed themselves to be set aside, though assured of a re-election to a seat in a new court. But no such assurance could be given, or was given, in the present case; for, in the Senate alone, Henry Tazewell, James Henry, James Mercer, and Edmund Winston, able and trustworthy men, all of whom at one time or other held seats on the bench, and two of whom were elected judges of the Court of Appeals not long after, were duly nominated in opposition to the old judges, and, as their names were not withdrawn, were doubtless voted for. What imparts an interest to this election of judges is the fact that Stevens Thomson Mason, who was a few years later to play such an important part in the Senate of the United States in repealing the judiciary act of 1800,175 was at present a member of the Senate of Virginia, was at the head of its Judiciary Com- mittee, and voted for the new Court of Appeals; and that Wil- son Cary Nicholas, who was to be the colleague of Mason in the Senate of the United States when the Federal judiciary law was repealed, was a member of the House of Delegates, and voted for the reconstruction of the Court of Appeals. The District Court bill, which had not yet gone into effect, was amended; and Richard Cary, James Henry, and John Tyler were elected judges of the General Court. An act concerning the Court of Admiralty, and the judges thereof, was also passed. As a proof of the unanimity with which these necessary changes in the courts and judges was received by all parties, it may be men- tioned that, while such acts as the act disabling certain officers under the Continental Government from holding offices under
175 General Mason, in his speech on the bill to repeal the judiciary act of 1800 in the Senate of the United States, in February, 1802, alluded to the present action of the Assembly in respect of the judges, and said: "Our judges, who are especially tenacious of their rights, did not complain. They thought, as I think, that they should not be removed from their offices that others might be placed in them, and that while they did continue in office their salaries should be continued to them." (Report of the Senate Debates, Bronson publisher, Phila- delphia, 1802, page 83.)
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the authority of this Commonwealth, and an act for the relief of certain citizens, were subjected, on their passage, to the stringent curb of the ayes and noes, the judiciary bills passed without even a division.
One subject bearing upon Federal politics was taken up in good earnest by the Assembly. The resolutions which had been made in the late Convention on the subject of the surren- der of the right of navigating the Mississippi had alarmed the people of the West; and, that Congress might be duly impressed with a proper sense of the importance of that interest to the Southern States, and to Virginia and Kentucky in particular, the Assembly unanimously and solemnly resolved that the citizens of the United States have an absolute right to the navigation of the Mississippi river; that by the principles of the Federal com- pact those States more immediately interested in it have a just claim upon the National Government for every effort in their power for the accomplishment of that important object; and that, · to merit the confidence and preserve the harmony of the con- federacy, the most early measures should be taken by the said Government, after it shall be organized, to obtain an acknow- ledgment of the said right on the part of Spain, or otherwise remove the obstructions that may prevent the free use of it. It was also ordered that a copy of the resolution, together with the resolutions of the General Assembly of the years 1786 and 1787, in support of the said right, be transmitted to the representatives of this State in the said Government, and that they be instructed to use their unceasing efforts until the free use of the said river shall be obtained. This was the first instance in which the Assembly undertook to instruct the representatives of Virginia in Congress under the present Federal Constitution. If any member of the House had risen in his place and denied the right of the Assembly to instruct all the representatives of Vir- ginia in Congress, he would have been hooted out of the House. The right to instruct under the confederation was perfect, and the members could be recalled at pleasure; but the Assembly did not foresee that a distinction would soon be taken between the senators and the representatives in Congress-a distinction, it is palpable, that can only be sustained on the ground that the present is no longer a federal union.
Cash was scarce in the days of our fathers; and Virginia, like
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a tender mother, as she ever was, about to send a child from home, looked into the pockets of her sons, who, as senators and representatives, were deputed to inaugurate the new gov- ernment in the city of New York, and finding them empty, or at least large enough to hold a little more than was in them, advanced to each one hundred pounds, and took his bond for the same. This movement must have been made by the Federal party, which might have been sought to keep their opponents in good humor at least until the government was set up, or while the money lasted.116
The House adopted a resolution, without a division, requiring the Executive, the chancellors, and the judges to report at each session the defects they may discover in the laws when reduced to practice. An honest and cordial co-operation of the Execu- tive and the judges in the amendment of the law would prove a great blessing to the people; but the Senate, probably thinking that conflicts in high party times might occur between the judges and the Assembly, and, as the right of a mere majority of the Assembly to repeal the judiciary system and to set the judges adrift was conceded and acted on, rejected the resolution.
An instance was given at a previous session of the liberation of a slave by the Assembly as a mark of meritorious conduct during the war. A similar instance occurred at the present ses- sion. It appears that a slave named Timothy had rendered valuable service during the Revolution, and it was resolved unanimously by both houses that the Executive be instructed to purchase his freedom at any reasonable price, and to grant him an instrument of emancipation.
The House of Delegates was refreshed by the introduction of a new member toward the latter part of the present session. Edmund Randolph, having retired from the Executive, was returned to the House, evidently with a view to counteract any intemperate legislation in respect of the Federal Government. He was placed on leading committees, and performed his part with his usual ability; but the Federal test questions had been decided before he took his seat. The act concerning the cre- dentials of the senators, and the act concerning incestuous mar-
176 House Journal, December 23, 1788, and Senate Journal, Decem- ber 24th.
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riages, were reported by him, and are evidently from his pen. General Andrew Moore received from the House a cordial recognition of his services lately rendered in the Cherokee country, and the Executive was instructed to award him an ade- quate compensation. The Senate gave its assent to the measure.
Besides the acts remodelling the courts, and others already noticed, there were some of general interest. Richmond was, for the first time, empowered to send a delegate to the Assembly. The militia laws were amended. Acts to punish bigamy and to prevent bribery and corruption, and to incorporate academies, were passed. The act authorizing Kentucky to become an inde- pendent State, which was enacted at a preceding session, but which, from some informality could not be carried into effect, was amended, and that young Commonwealth soon assumed an independent position as one of the United States.
. A sketch of the proceedings of the General Assembly at this important epoch may fitly conclude with a glance at the finances of the past year. The sum total of receipts into the treasury from all sources, from the Ist day of December, 1787, to the 24th of November, 1788, was four hundred and seventeen thou- sand four hundred and ninety-eight pounds nine shillings and eight pence halfpenny, and the disbursements were three hun- dred and seventy-three thousand nine hundred and twenty-one pounds three shillings and three pence-leaving a balance of forty-three thousand five hundred and seventy-seven pounds. The arrearages of taxes for past years reached one hundred and forty three thousand pounds. The receipts from the customs were seventy-four thousand and twenty-nine pounds. 177
Too much honor cannot be accorded to the worthy patriots who composed the present Assembly. It commenced its ses- sions on the 20th of October, 1788, and adjourned on the 30th of December; and the whole time was incessantly devoted to public business. Its general legislation was judicious, firm, and thorough, and embraced many interesting topics. The ability and the judgment with which the entire judicial system was remodelled were conspicuous. But it was in the conduct of Federal affairs that it merits more particularly the grateful praise of succeeding times. Although there was an overwhelming
177 House Journal, December 20, 1788.
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majority of the members who had been opposed to the adoption of the Constitution, and who honestly and truly believed that its ratification was in violation of the wishes of a large majority of the people, yet they united most cordially with the friends of that instrument in passing the necessary laws for carrying it into effect. Their hostility to that instrument was not at all abated, and they were anxious to secure the call of another Convention of the States for its revision; but their schemes were open, can- did, and honorable. Had such men as Henry, Grayson, and Monroe been factiously disposed, the necessary laws for organ- izing the new government would not have been enacted, and the new scheme, so far as Virginia was concerned, would have fallen still-born. A blast of war from Henry, sustained by the plausi- ble and comprehensive reasoning of Grayson and by the sterling sense of Monroe, would have swept away all opposition, and would have rung and been responsively re-echoed from the Atlantic to the Mississippi. But the patriotism and wisdom of our great orator were equal to his more splendid qualities; and he sought to attain his ends rather by the forms of a law which his opponents could not censure, and of which they might approve, than by any questionable and precipitate procedure. Such, too, were his illustrious colleagues. They were as far- seeing as they were able in debate, and for the mode in which, at a time of intense excitement, they sought to secure for pos- terity those blessing of peace and freedom which they regarded as in jeopardy, they deserve the gratitude of their country.
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