The kernel of the objection to National Courts was, declared Marshall, "a belief that there will not be a fair trial had in those courts." But it was plain, he argued, that "we are as secure there as anywhere else.
What mischief results from some causes being tried there [in the National Courts]?" Independent judges "wisely appointed ... will never countenance an unfair trial." a.s.suming this to be true "what are the subjects of the jurisdiction" of National Courts? To Mason"s objection that Congress could create any number of inferior courts it might deem necessary, Marshall replied that he had supposed that those who feared Congress would say that "no inferior courts" would be established, "but that we should be dragged to the centre of the Union." On the contrary, the greater the number of these inferior courts, the less danger "of being dragged to the centre of the United States."
Mason"s point, that the jurisdiction of National Courts would extend to all cases, was absurd, argued Marshall. For "has the government of the United States power to make laws on every subject?... laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can" Congress "go beyond the delegated powers?"
Certainly not. Here Marshall stated the doctrine which, fifteen years later, he was to announce from the Supreme Bench:--
"If," he a.s.serted, "they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [National]
judges as an infringement of the Const.i.tution which they are to guard.
They would not consider such a law as coming under their jurisdiction.
_They would declare it void_.... To what quarter will you look for protection from an infringement of the Const.i.tution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."
The National Courts would not supplant the State tribunals. The Const.i.tution did not "exclude state courts" from those cases which they now possess. "They have concurrent jurisdiction with the Federal courts in those cases in which the latter have cognizance," expounded the nascent jurist. "Are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the Federal Judiciary can take [exclusive]
cognizance of?"
The work of the National Courts would make the State Courts more efficient because it would relieve them of a ma.s.s of business of which they were not able to dispose. "Does not every gentleman know that the causes in our [State] courts are more numerous than they can decide?"
asked Marshall. "Look at the dockets," he exclaimed. "You will find them crowded with suits which the life of man will not see determined.[1310]
If some of these suits be carried to other courts, will it be wrong?
They will still have business enough."
How vain and fanciful, argued Marshall, the contention that National judges would screen "officers of the [National] government from merited punishment." Does anybody really believe that "the Federal sheriff will go into a poor man"s house and beat him or abuse his family and the Federal court will protect him," as Mason and Henry had said would be the case? Even if a law should be pa.s.sed authorizing "such great insults to the people ... it would be void," declared Marshall. Thus he stated for the second time the doctrine which he was, from the Supreme Bench, to put beyond controversy.
Why, asked Marshall, "discriminate [in the Const.i.tution] between ...
chancery, admiralty and the common law" as the Anti-Const.i.tutionalists insisted upon doing? "Why not leave it to Congress? They ... would not wantonly infringe your rights." If they did, they would "render themselves hateful to the people at large." Therefore, "something may be left to the legislature [Congress] freely chosen by ourselves from among ourselves, who are to share the burdens imposed upon the community and who can be changed at our pleasure. Where power may be trusted and there is no motive to abuse it, it ... is as well to leave it undetermined as to fix it in the Const.i.tution."
These sentences had prophecy in them. Indeed, they were to be repeated almost without change by the same man that now uttered them in debate, when he should ascend to the ultimate place of official interpretation of our fundamental law. While Hamilton"s immortal state papers profoundly impressed Marshall, as we shall see, they were not, as many have supposed, the source of his convictions. In the Virginia Const.i.tutional Convention of 1788 Marshall stated in debate the elements of most of his immortal Nationalist opinions.
But there was one exception. As to "disputes between _a state and the citizens of another state_," Marshall hoped "that no gentleman will think that a state will be called at the bar of a Federal court.... 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 of individuals residing in other states." If there were partiality in this--"if an individual cannot ... obtain judgment against a state, though he may be sued by a state"--it was a difficulty which could "not be avoided"; let the claimant apply to the State Legislature for relief.
The objection to suits in the National Courts between citizens of different States went "too far," contended Marshall. Such actions "may not in general be absolutely necessary," but surely in some such cases "the citizen ... ought to be able to recur to this [National] tribunal."
What harm could it do? "Will he get more than justice there? What has he to get? Justice! Shall we object to this because the citizen of another state can obtain justice without applying to our state courts?" Indeed, "it may be necessary" in causes affected by "the laws and regulations of commerce" and "in cases of debt and some other controversies."... "In claims for land it is not necessary--but it is not dangerous."
These suits between citizens of different States "will be inst.i.tuted in the state where the defendant resides, and nowhere else," expounded the youthful interpreter of the Const.i.tution; and the case "will be determined by the laws of the state where the contract was made.
According to those laws, and those only, can it be decided." That was no "novelty," but "a principle" long recognized in the jurisprudence of Virginia. "The laws which governed the contract at its formation, govern it in its decision." National Courts, in such controversies, would "preserve the peace of the Union," because if courts of different States should not give justice between citizens of those States, the result would be "disputes between the states." Also the jurisdiction of National Courts in "controversies between a state and a foreign state ... will be the means of preventing disputes with foreign nations"; for since "the previous consent of the parties is necessary ... each party will acquiesce."
As to "the exclusion of trial by jury, in this case," Marshall asked, "Does the word _court_ only mean the judges? Does not the determination of the jury necessarily lead to the judgment of the court? Is there anything" in the Const.i.tution "which gives the [National] judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts." If "a court has cognizance of facts," it certainly "can make inquiry by a jury," dryly observed Marshall.
He ridiculed Mason"s and Henry"s statement that juries, in the ten miles square which was to be the seat of the National Government, would be "mere tools of parties with which he would not trust his person or property." "What!" exclaimed Marshall, "Will no one stay there but the tools and officers of the government?... Will there not be independent merchants and respectable gentlemen of fortune ... worthy farmers and mechanics" in the National Capital just as there were in Richmond? And "will the officers of the government become improper to be on a jury?
What is it to the government whether this man or that man succeeds? It is all one thing."
As to jury trial not being guaranteed by the National Const.i.tution in civil cases, neither did Virginia"s Const.i.tution, said Marshall, "direct trials by jury"; and the provision was "merely recommendatory"
concerning jury trials in the Bill of Rights, which, as everybody knew, was no part of the State Const.i.tution. "Have you a jury trial when a judgment is obtained on a replevin bond or by default?" Or "when a motion is made by the Commonwealth against an individual ... or by one joint obligor against another, to recover sums paid as security." Of course not! "Yet they are all civil cases.... The Legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient." And Congress would do the same, he rea.s.sured the Convention.
Mason"s objection, that the right to challenge jurors was not guaranteed in the Const.i.tution, was trivial, said Marshall. Did Virginia"s Const.i.tution make such a guaranty? Did the British Const.i.tution do so by any express provision? Was jury challenge secured by Magna Charta? Or by the Bill of Rights?[1311] Every Virginian knew that they were not. "This privilege is founded in their [English people"s] laws," Marshall reminded the Convention. So why insert it in the American Const.i.tution?
Thus the inhabitants of the Northern Neck or anybody else were not in danger on that score. Neither were they placed in jeopardy in any other way by the Const.i.tution. Here Marshall made a curious argument. Mason, he said, had "acknowledged that there was no complete t.i.tle[1312] [in Fairfax].... Was he [Mason] not satisfied that the right of the legal representatives of the proprietor [to collect quitrents] did not exist at the time he mentioned [the date of the Treaty of Peace]? If so, it cannot exist now," declared Marshall. "I trust those who come from that quarter [the Northern Neck] will not be intimidated on this account in voting on this question" he pleaded; for let them remember that there was "a law pa.s.sed in 1782 [sequestration of quitrents] which secured this."
Let the "many poor men" who Mason had said might "be hara.s.sed by the representatives of Lord Fairfax" rest a.s.sured on that point; for "if he [Fairfax] has no right," they could not be disturbed. "If he has this right [to collect quitrents] and comes to Virginia, what laws will his claims be determined by?" By Virginia"s laws. "By what tribunals will they be determined? By our state courts."[1313] So the "poor man" who was "unjustly prosecuted" would "be abundantly protected and satisfied by the temper of his neighbors."[1314]
The truth was, said Marshall, that justice would be done in all cases by both National and State Courts. Laws would not be "tyrannically executed" as the opposition feared; the "independency of your judges"
would prevent that. "If," he argued, "a law be exercised tyrannically in Virginia, to whom can you trust? To your Judiciary! What security have you for justice? Their independence! Will it not be so in the Federal court?"
Like other objections to the power of Congress and the conduct of National Courts, the criticism that men might be punished for their political opinions was, declared Marshall, groundless and absurd; for, "the good opinion of the people at large must be consulted by their representatives--otherwise mischiefs would be produced which would shake the government to its foundations." Of course, then, he contended, neither Congress nor the courts would abuse their power. The charge that "unjust claims will be made, and the defendant had better pay them than go to the Supreme Court" was unthinkable. Would anybody incur great expense to oppress another? "What will he gain by an unjust demand?
Does a claim establish a right? He must bring his witnesses to prove his claim"; otherwise "the expenses must fall on him." Will he take the chances that the injured man will not appear and defend the unjust suit?
"Those who know human nature, black as it is," sarcastically observed Marshall, "must know that mankind are too attached to their own interest to run such a risk."
"The Federal Government," exclaimed Marshall, "has no other motive, and has every reason for doing right which the members of our state legislature have. Will a man on the eastern sh.o.r.e be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern sh.o.r.e to have his trial? A government, by doing this, would destroy itself."[1315]
This, in effect, was John Marshall"s exposition of the second section of article three of the Const.i.tution. Although Grigsby, whose accuracy on such details is not questioned, says that the speech was prepared, Robertson"s report would not indicate that such was the case. The address is wanting in that close-knit continuity of reasoning and in that neatness of thought and expression which were Marshall"s peculiar excellence. Like his first debate in the Convention, his speech on the Judiciary is disjointed. A subject is half treated in one part of his remarks and resumed in another.[1316] But he makes his princ.i.p.al points with clearness and power. His argument is based on the independence of the courts as the best guaranty against unjust decisions; the responsibility of Congress to the people as the strongest safeguard against oppressive laws; and the similarity of Virginia"s Const.i.tution and Courts to the National Const.i.tution and Courts as proof of the security, fairness, and justice of the National Judiciary.
Marshall"s effort really closed the case for the Const.i.tution on the Judiciary. That night Madison wrote to Hamilton that "a great effort is making" against the Judiciary. "The retrospection to cases antecedent to the Const.i.tution, such as British debts and an apprehended revival of Fairfax--Indiana, Vandalia, &c., claims are also brought into view in all the terrific colours which imagination can give them.... Delay & an adjournment will be tried if the adverse party find their numbers inferior.... At present it is calculated that we still retain a majority of 3 or 4; and if we can weather the storm ag^{st}" the Judiciary, "I shall hold the danger to be pretty well over. There is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated."[1317]
Marshall"s speech alarmed the opposition, and Grayson used all his learning, wit, and cleverness in an attempt to break its force. Randolph replied. Thus the second week closed. Neither side was certain of the exact number of votes it had, though every member was observed with the politician"s anxiety and care.[1318] The Const.i.tutionalists had the greater confidence. Madison wrote his father that "The calculations on different sides do not accord;... I think however, the friends of the Const.i.tution are most confident of superiority.... It is not probable that many proselytes will be made on either side."[1319]
On Sunday Madison made his weekly report to Hamilton: "The Judiciary Department has been on the anvil for several days; and I presume will still be a further subject of disquisition. The attacks on it have apparently made less impression than was feared. But they may be secretly felt by particular interests that would not make the acknowledgment, and w^d chuse to ground their vote ag^{st} the Const.i.tution on other motives."[1320]
The Anti-Const.i.tutionalists were becoming desperate. If they could not amend the Const.i.tution as a condition of ratifying it, their game now was either an adjournment or a delay until the Legislature, scheduled to meet on the following Monday and known to be, in the main, opposed to the Const.i.tution, should afford them relief.
If these expedients should fail, there was open talk of secession.[1321]
The Const.i.tutionalists arranged for the utmost dispatch and planned to "withhold, by a studied fairness in every step on the side of the Const.i.tution, every pretext for rash experiments." They hoped to avoid previous amendment by proposing "to preface the ratification with some plain & general matters that cannot effect the validity of the"
Const.i.tution. They felt that "these expedients are rendered prudent by the nice balance of members, and the scruples entertained by some who are in general well affected." But whether these devices "will secure us a majority," wrote Madison, "I dare not positively to declare."
So small was their expected majority likely to be, that the Const.i.tutionalists felt that "ordinary casualties ... may vary the result." They were exceedingly alarmed over the coming to town of the members of the Legislature who "as individuals ... may have some influence and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in Convention."[1322]
From the adjournment on Sat.u.r.day until the Convention again a.s.sembled on the following Monday, June 23, the opposition decided that something more must be done to counteract Marshall"s exposition of the Judiciary article. For this purpose their leader and strongest men took the floor.
The shorthand reporter was not present on this day, but the printer of the debates took notes.[1323]
Nothing so well shows the esteem in which Marshall"s ability was held as Patrick Henry"s compliment to his young a.s.sociate. "I have," said Henry, "the highest veneration and respect for the honorable gentleman, and I have experienced his candor on all occasions"; but "in this instance" Henry felt that Marshall was mistaken. "It is not on that paper before you we have to rely.... It is on those who may be appointed under it. It will be an empire of men, and not of laws."
Marshall interrupted Henry to explain that the latter had not clearly understood him as to the trial by jury. Henry responded that "the gentleman"s candor, sir, as I informed you before, I have the highest opinion of, and am happy to find he has so far explained what he meant; but, sir, has he mended the matter?" Then Henry enlarged upon what he thought was the Const.i.tution"s sacrifice of rights of trial by jury.
What would become of this, that, and the other? What would be the end of this contract and that? And "what is to become of the _purchases of the Indians_?--those unhappy nations who ... by being made drunk, have given a thousand, nay I might say, ten thousand acres, for the trifling sum of sixpence!" And what of those who owed the British debts?--they will "be ruined by being dragged into Federal courts and the liberty and happiness of our citizens gone, never again to be recovered."[1324]
The Const.i.tutionalists had antic.i.p.ated that Henry would touch on his hobby, the Indians; and they were ready with an answer far more effective on the votes of the members than any argument, however weighty. Hardly had Henry closed when a giant old man got upon his feet. For more than thirty years this bluff and ancient veteran had been a soldier. Since 1755 he had been one of the boldest and ablest of Virginia"s famous Indian fighters and often had commanded the Virginia rangers that defended the frontier from the savages. His utter fearlessness and tremendous physical strength had made him the terror of the red man, and his name was a household word throughout Virginia as a bulwark against the savages. Throughout the Revolution he had borne himself as a hero. So when Colonel Adam Stephen spoke, his words were sword-thrusts.[1325]
Henry, growled Stephen, "means to frighten us by his bugbears of hobgoblins, his sale of lands to pay taxes, Indian purchases and other horrors that I think I know as much about as he does." Colonel Stephen then described the Indian country, the Indian tribes, and Indian trade.
He also knew "of several rich mines of gold and silver in the western country" which would pay the taxes Henry was so worried about. "If the gentleman [Henry] does not like this government, let him go and live among the Indians. I know of several nations that live very happily; and I can furnish him with a vocabulary of their language."[1326]
Nothing can be plainer than that this personal a.s.sault on Henry was prearranged; for George Nicholas followed it up with what came near being an open insult. Answering Henry"s insinuation about Indian lands being fraudulently purchased, Nicholas retorted, looking directly at Henry, "there are gentlemen who have come by large possessions that it is not easy to account for." This was taken as a reflection on some of Henry"s land speculations. The latter felt the sting; for "here Mr.
Henry interfered and hoped the honorable gentleman meant nothing personal." Nicholas snapped back, "I mean what I say, sir."
The extremes to which the opposition went in lobbying with members and the nature of their conversation are shown by an acid sentence of Nicholas in this speech. He referred to "an observation I have heard out of doors; which was that, because the New England men wore black stockings and plush breeches, there can be no union with them."
Henry was instantly on his feet when Nicholas finished. He thought the Convention floor "an improper place" to make "personal insinuations, or to wound my private reputation.... As to land matters, I can tell how I came by what I have ... I hold what I hold in right, and in a just manner." Henry was most courteous and dignified in this discussion, disclaiming any intention to offend any one. Nicholas responded that he "meant no personality ... nor ... any resentment." But, said he, "If such conduct meets the contempt of that gentleman [Henry] I can only a.s.sure him it meets with an equal degree of contempt from me."
Here the President of the Convention interfered and "hoped the gentlemen would not be personal; that they would proceed to investigate the subject calmly, and in a peaceable manner." Thereupon Nicholas admitted that he had not referred to Henry when he first spoke, but to "those who had taken up large tracts of land in the western country"; Nicholas had not, however, explained this before because he felt that Henry had said some things that one gentleman ought not to say to another. Thus ended the second of the only two instances in Virginia"s long and masterful debate which approached a personal quarrel or displayed even the smallest discourtesy.[1327]
The debate now drew swiftly to a close. Excitement ran high. The Anti-Const.i.tutionalists, tense and desperate, threatened forcible opposition to the proposed National Government if it should be established. Mason "dreaded popular resistance" to the Const.i.tution and was "emphatic" in his fears of "_the dreadful effects_ ... should the people resist." Gentlemen should pause before deciding "a question which involved such awful consequences." This so aroused Lee that he could "no longer suppress" his "utterance." Much as he liked and admired Mason, Lee asked him "if he has not pursued the very means to bring into action the horrors which he deprecates?"
"Such speeches within these walls, from a character so venerable and estimable," declared Lee, "easily progress into overt acts, among the less thinking and the vicious." Lee implored that the "G.o.d of heaven avert from my country the dreadful curse!" But, he thundered, "if the madness of some and the vice of others" should arouse popular resistance to the Const.i.tution, the friends of that instrument "will meet the afflicting call"; and he plainly intimated that any uprising of the people against the proposed National Government would be met with arms.[1328] The guns of Sumter were being forged.
On the night of June 23, the Const.i.tutionalists decided to deliver their final a.s.sault. They knew that it must be a decisive one. The time had arrived for the meeting of the Legislature which was hostile to the Const.i.tution;[1329] and if the friends of the proposed new Government were to win at all, they must win quickly. A careful poll had shown them that straight-out ratification without amendment of some kind was impossible. So they followed the plan of the Ma.s.sachusetts Const.i.tutionalists and determined to offer amendments themselves--but amendments merely by way of recommendation and subsequent to ratification, instead of previous amendments as a condition of ratification. The venerable Wythe was chosen to carry out the programme.