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from Col. [Henry] Lee." 109 Madison, writing to Washington from his home on the 5th and before he knew what the House would do about the report, was critical of Randolph's attitude:

The fate of the Amendments . . . is still in suspense. In a Come. of the Whole House the first ten were acceded to with little opposition; . . . on the two last a debate . . . ended in rejection. Mr. E. Randolph who advocated all the others stood in this contest in the front of opposition. His principal objection was pointed agst. the word 'retained' in the eleventh . . . and that as there was no criterion by which it could be determined whether any particular right was retained or not, it would be more safe that this reservation against constructive power should operate rather as a provision agst. extending the powers of Congs. by their own authority than a protection to rights reducible to no definite certainty. But others, among them I am one, see not the force of the distinction. . . . if the House should agree to the Resolution for rejecting the two last, I am of opinion that it will bring the whole into hasard again, as some who have been decided friends to the ten first think it would be unwise to adopt them without the 11th & 12th . . . the difficulty started agst. the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution. It is still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful.110

The House resolved on November 30 that such articles "as are conformable with the alterations recommended . . . by the Convention of this Commonwealth, ought to be ratified," sidered all twelve as coming within this category. Randolph wrote again to Washington on December 6:

and conWhereupon

Upon the report being made to the house, and without a debate of any consequence the whole twelve were ratified. They are now with the senate, .. That body will attempt to postpone them; for a majority is unfriendly to the government. . . . In the house of delegates, it was yesterday moved to declare the remainder of the amendments, proposed by our convention, essential to the rights and liberties of the people. An amendment . . . the general assembly ought to urge congress to a reconsideration of them. . . carried by the speaker, giving a casting vote. This shows the strength of the parties, and that in the house of delegates, the antifederal force has diminished much since the last year. . . . It [the amended resolution] will be pushed; because it seems to discountenance any further importunities for amendments; which in my opinion is now a very important point. . . . eleventh amendment, which is exceptionable to me, in giving a handle to say, that congress have endeavoured to administer an opiate, by an alteration, which is merely plausible."


The Senate received the amendments on December 2 and in committee of the whole discussed them on December 5, 7, and 8, then reporting in favor of striking out the third article (Amendment I), the eighth (Amendment VI), and the eleventh and twelfth (Amendments IX and X), postponing these four "till the next session of Assembly, for the consideration of the people";113 and at the same

time increasing the number of copies of the propositions to be printed from the House number of 200 to 1000. The votes in the Senate to strike out these four items were either 8 to 7 or 8 to 6, and by 8 to 7 those who had voted to omit were permitted to enter their reasons on the journal.

These reasons, signed by eight members, stated that the amendments proposed by Congress "fall far short of affording the same security to personal rights, or of so effectually guarding against the apprehended mischiefs of the government" as would the analogous ones desired by Virginia and other states. As to the third article it was "dangerous and fallacious, as it tends to lull the apprehensions of the people on these important points, without affording them security; ." The objection to the eighth article was that it did not sufficiently secure the right to a "jury of the vicinage," since the districts of the judiciary act were state-wide and that was indicative of the attitude of Congress. The eleventh article was not asked for by Virginia or any other state, and therefore "the people of Virginia should be consulted with respect to it. . . but it appears to us highly exceptionable." It was greatly defective as a measure intended by implication to guard against the extension of the powers of Congress; "and as it respects personal rights, might be dangerous, because, should the rights of the people be invaded or called in question, they might be required to shew by the constitution what rights they have retained; and such as could not from that instrument be proved to be retained by them, they might be denied to possess." As Madison had added this particularly to make sure that the mention of certain protected rights would not lessen the claim to others, it is interesting to note here that according to this protest, which agrees with Randolph's attitude, the effect of it would be just the reverse. The twelfth article would be all right, stated those who voted to omit it, except for the "or to the people," since that "is not declared to be the people of the respective States; but the expression applies to the people generally as citizens of the United States, and leaves it doubtful what powers are reserved to the State Legislatures. . . . Congress might, as the supreme rulers of the people, assume those rights which properly belong to the respective States, and thus gradually affect an entire consolidation.” 114 Four of those who voted to include the rejected articles entered a protest on the journal against the appearance of the above reasons, holding that the right pertained only to the minority. They later added their own reasons, saying that they "considered the accepting of such as were at present offered as a measure better calculated to


323 insure others, than either rejecting or postponing the consideration of them." 115

The Senate decision was returned to the House on December 9, 1789, and the House disagreed on the 11th and asked a conference. The eight members of the House committee included Randolph, Henry Lee, Corbin, Marshall, and Carrington, all good Federalists. The Senate appointed three Antifederalists, and on December 12, after the conference committee reported, voted by 7 to 6 to adhere to its own decision. This ended the business. Randolph wrote Washington on December 15: "It has been though best by the more zealous friends of the constitution to let the whole of them rest. I have submitted to their opinion; . . . The ground . The ground. . . is a resolution to throw the odium of rejection on the senate." 116

Jefferson expressed his opinion of the whole affair in a letter to Short in Paris on December 14: ".. the gentlemen who opposed it [the Constitution] retain a good deal of malevolence towards the new govt. Henry is it's avowed foe, he stands higher in public estimation than he ever did, yet he was [so] often in the minority in the present assembly that he has quitted it, never to return, unless an opportunity offers to overturn the new constitution." 117 Carrington, a member of the House, wrote Madison on December 20 that Henry began his feeling of the pulse of the House by trying first to get a vote of thanks to Lee and Grayson. He made a speech but the matter "was never stirred again." His next effort was to refer the amendments to the next session, alleging that they were not satisfactory, but moved to lay his own resolution on the table and went home. The "intemperate and unprecedented conduct" of the Senate in adhering to its rejection of part of the amendments left the House no choice but to adhere also.118 Madison summed up the matter on January 4, 1790, when he wrote Washington that the result "will do no injury to the Genl. Government. On the contrary it will have the effect with many of turning their disgust towards their own Legislature. The miscarriage of the 3d art. particularly, will have this effect." 119

The session of the Virginia General Assembly in October 1790 did nothing concerning the matter. Henry was a member of the House again, but seems to have left on November 13. Senator Lee wrote Henry on June 10, 1790, several months before the Assembly convened for that year's session: "There appears to be no prospect of further amendments to the constitution, this session, and I own, 'tis my wish, that the amendments generally, as proposed at the last session, had been adopted by our legislature; for although there is

much force in your observations, upon that subject, yet when I consider one great object of declaration beyond which governments may not go, to wit: that they 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 so much as we can at different times, we may at last come to obtain the greatest part of our wishes.” 120 At this same time Jefferson, already critical of the Hamiltonian policy, and fast displacing Henry as the political leader in Virginia, showed in the letter to George Mason on June 13, 1790, his growing dissatisfaction, although that dissatisfaction was to be with the administration and interpretation rather than with the Constitution itself, just as Madison had predicted a year before: ". . . tho I approve of the mass, yet I would wish to see some amendments, further than those which have been proposed, and fixing it more surely on a republican basis." 121 He added to Moustier on December 3 his belief in "adding those principles which several of the states thought were necessary as a further security for their liberties.” 122

In the session of 1791 Henry was not a member of the legislature. He had written Monroe on January 24, 1791: "And altho' The Form of Governt. into which my Countrymen determined to place themselves, had my Enmity, yet as we are one & all imbarked, it is natural to care for the crazy Machine, at least as long as we are out of Sight of a Port to refit." 123 The change of heart thus indicated progressed until the great patriot was vehement in his objection to Jefferson's and Madison's Kentucky and Virginia Resolutions in 1798, and supported for Congress at that time both John Marshall and Henry Lee, active antagonists in the contest over the sufficiency and ratification of the amendments. On October 25, 1791, on the ninth day of the session, a committee of the whole of the House reported in favor of ratifying the first article, the one on apportionment, to which the House agreed at once and the Senate on November 3, after discharging a committee of the whole from the consideration of it. On December 5, the House under the same conditions sent the rest of the amendments up to the Senate, which considered them for two days in a committee of the whole and then on December 15 ratified without a record vote. This, as said above, completed the necessary ratification of the first ten amendments.


PRESIDENT Washington from time to time notified Congress of the

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ratifications by the states. On December 30, 1791, he thus announced Virginia's approval; but did not tell of Vermont's until January 18, 1792, although that state had preceded Virginia in her consent. Jefferson, as secretary of state, sent out the announcement of the acceptance of the present first ten amendments as part of the Constitution on March 1, 1792.

MASSACHUSETTS, CONNECTICUT, AND GEORGIA MASSACHUSETTS, Connecticut, and Georgia did not ratify any of the proposals sent down by Congress. In the first of these states, Governor Hancock on January 14, 1790, sent to the General Court the proposed amendments, with a message in which he said: "As it is the ardent wish of every patriot, that the plan may be as compleat as human wisdom can effect it, This resolve, I am confident, will demand your serious and careful attention." 124 Five days later in his speech before the General Court he said:

As Government is no other than the united consent of the people of a civil community, to be governed in a particular mode, by certain established principles, the more general the union of sentiment is, the more energetic and permanent the government will be. Upon this idea, the adoption of some of the proposed amendments becomes very important; because the people of this Commonwealth felt themselves assured by the proceedings of their Convention, which ratified the Constitution, that certain amendments, amongst which were some of those, would be effected: The seventh, eighth & ninth articles appear to me to be of great consequence. . . . These articles therefore, I believe, will meet your ready approbation. Some of the others appear to me as very important to that personal security, which is so truly characteristick of a free Government.125

The legislators in answer assured the governor: "We are anxious that the whole body of the People should have the fullest confidence, that their rights and liberties are secured to them in the General Government, by the most explicit declarations, which have a tendency to give energy to its authority and laws." 126 On January 29 the Senate voted to adopt all the articles but the first and second; and the House considered them on February 2, and agreed in the rejection of the first and second, but also rejected the twelfth article. The Senate yielded its preference for this, and a joint committee was appointed to bring in a bill; which committee never reported. On January 20 the Senate proposed a joint committee to "consider what further amendments are necessary to the Federal Constitution." The House joined on this on February 2; so that two committees were in existence, one to prepare a bill of ratification of amendments and the other to suggest further amendments. The latter committee

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