latter act always repealing the former in any specified case of difference.

"Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire, but the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new Constitution, we remove the basis on which we mean to build. For these reasons I will move to strike out that paragraph and substitute another."

The paragraph proposed was the following: "Resolved, by the Senate and House of Representatives of the United States, in Congress assembled, that the following articles be proposed as amendments to the Constitution, and when ratified by three-fourths of the State legislatures, shall become valid to all intents and purposes, as part of the same. ''13

Mr. Madison replied to Mr. Sherman: "Form, sir, is always of less importance than the substance; but on this occasion I admit that form is of some consequence, and it will be well for the House to assume that which upon reflection shall appear to be most eligible. Now, it appears to me that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case, the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas if they are supplementary its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what arts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work, nor is it so uncommon a thing as generally supposed; systematic men frequently take up the whole. 13 1 Annals, 734, 735.

law, and with its amendments and alterations, reduce it into one act. Mr. Sherman's resolution was lost.

9714

Mr. Sherman renewed his motion for adding amendments to the Constitution by way of supplement, which started another debate, but this time the motion prevailed by a majority of two-thirds of the House.15

On the 25th of August the Senate received a message from the House proposing certain articles which the House had adopted as amendments to the Constitution.16 Some of the Senators did not receive them with favor. Maclay says they were treated contemptuously by Izard, Langdon and Morris. Izard moved they should be postponed until next session. Langdon seconded, and Mr. Morris "got up and spoke angrily but not well." They, however, lost their motion, and Monday was assigned for taking them up."

On September 9, the Senate informed the House that it had agreed to a part of the articles the House had proposed as amendments, and disagreed as to others.18 On the 21st the House sent a message to the Senate saying that it "agreed to the 2nd, 4th, 8th, 12th, 13th, 16th, 18th, 19th, 25th and 26th amendments proposed by the Senate, to articles of amendments to be proposed to the legislatures of the several States, as amendments to the Constitution of the United States;" and "disagreed to the 1st, 3rd, 5th, 6th, 7th, 9th, 10th, 11th, 14th, 15th, 17th, 20th, 21st, 22d, 23d, and 24th amendments; also that a conference was desired with the Senate on the subject matter of the amendments disagreed to; and that Messrs. Madison, Sherman and Vining were appointed managers on the part of the House." On the 25th of September the Senate concurred in the amendments proposed by the House to the amendments of the Senate.19 The amendments agreed to by both branches of Congress were twelve

141 Annals, 735, 736.

15 1 Annals, 795.

16 1 Annals, 73.

17 Maclay's Journal, 127. Maclay was a Senator from Pennsylvania from 1789 to 1791. He kept a daily journal of the proceedings of the Senate during that time, which is a most interesting and instructive account of the proceedings of the Senate during that period. 18 1 Annals, 80.

19 1 Annals, 90.

in number, which were transmitted by the President to the governors of the States for ratification or rejection.

After the ratification had been received by Congress, that body appointed a committee to examine the decisions of the States on the amendments. On July 29, 1790, Mr. Steele, chairman of the committee, reported:

"New Hampshire and New York accepted all the articles but the second. Pennsylvania passed over in silence the first and second articles, and accepted the rest. Delaware postponed the first article. Maryland, South and North Carolina and Rhode Island ratified the whole. So that it appears that the first article has been agreed to by six States; the second by five; and all the others by eight. '20

It thus appears that of the twelve amendments submitted by Congress to the States, the first and second failed of ratification, while the remaining ten were ratified. The dates of ratification by the States were: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The ratification of the amendments dates from December 15, 1791, when Virginia ratified, making the three-fourths necessary under the Constitution.21

20 2 Annals, 1713-14.

21 Various opinions were expressed about the amendments while they were being considered and after their passage, Fisher Ames again wrote Minot:

"We had the amendments on the tapis and referred them to a committee of one from a State. I hope much debate will be avoided by this mode and that the amendments will be more rational and less ad populum than Madison's. It is necessary to conciliate and I would have amendments. But they should not be rash, such as would dishonor the Constitution, without pleasing its enemies. Should we propose them, North Carolina would accede. It is doubtful in case

we should not." Life of Ames, vol. 1, 65.

Pierce Butler on August 11, 1789, wrote James Iredell: "A few milk-and-water amendments have been proposed by Mr. M., such as liberty of conscience, a free press, and one or two general things already well secured. I suppose it was done to keep his promise with his constituents, to move for alterations; but, if I am

An amendment becomes part of the Constitution when

not greatly mistaken, he is not hearty in the cause of amendments." McRea's Iredell, vol. 2, 265.

Richard Henry Lee wrote Patrick Henry September 14, 1789: "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 consolidated government instead of a Union of confederated States." Thorpe's Constitutional History of the United States, vol. 2, 260, 261-n.

From Marshall's Life of Washington we quote the following account of the situation:

"In the course of this session was also brought forward a proposition, made by Mr. Madison, for recommending to the consideration and adoption of the States, several new articles to be added to the Constitution.

"Many of those objections to it which had been urged with all the vehemence of conviction, and which in the opinion of some of its advocates, were entitled to serious consideration, were believed by the most intelligent to exist only in imagination, and to derive their sole support from an erroneous construction of the instrument. Others were upon points on which the objectors might be gratified without injury to the system. To conciliate the affections of their brethren to the government, was an object greatly desired by its friends. Disposed to respect what they deemed the errors of their opponents, where that respect could be manifested without a sacrifice of essential principles, they were anxious to annex to the Constitution those explanations and barriers against the possible encroachments of rulers on the liberties of the people which had been loudly demanded, however unfounded, in their judgments, might be the fears by which those demands were suggested. These dispositions were perhaps, in some measure, stimulated to exertion by motives of the soundest policy. The formidable minorities in several of the conventions, which in the legislatures of some powerful States had become majorities, and the refusal of two States to complete the union, were admonitions not to be disregarded, of the necessity of removing jealousies however misplaced, which operated on so large a portion of society. Among the most zealous friends of the Constitution therefore, were found some of the first and warmest advocates for amendments.

"To meet the various ideas expressed by the several conventions; to select from the mass of alterations which they had proposed those which might be adopted without stripping the government of its necessary powers; to condense them into a form and compass which would be acceptable to persons disposed to indulge the caprice, and to adopt the language of their particular States; were labours not easily to be accomplished. But the greatest difficulty to be surmounted was, the disposition to make those alterations which would enfeeble and materially injure the future operations of the government. At length, twelve articles in addition to and amendment of the Constitution were assented to by two-thirds of both Houses of Congress, and pro

it is ratified by the last State necessary to complete the three-fourths of the States required by the Constitution.

posed to the legislatures of the several States. Although the necessity of these amendments had been urged by the enemies of the Constitution and denied by its friends, they encountered scarcely any other opposition in the State legislatures, than was given by the leaders of the Anti-Federal party. Admitting the articles to be good in themselves, and to be required by the occasion, it was contended that they were not sufficient for the security of liberty; and the apprehension was avowed that their adoption would quiet the fears of the people, and check the pursuit of those radical alterations which would afford a safe and adequate protection to their rights. Viewing many of those alterations which were required as subversive of the fundamentals of the government, and sincerely desirous of smoothing the way to a reunion of political sentiment by yielding in part to objections which had been pronounced important, the Federalists, almost universally, exerted their utmost powers in support of the particular amendments which had been recommended. They were at length ratified by the legislatures of three-fourths of the States, and probably contributed in some degree, to diminish the jealousies which had been imbibed against the Federal Constitution." Marshall's Life of Washington, vol. 5, 207-210.