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. I > Part 30
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forty-four would make a majority. He asked if all our laws were bad because forty-four members could pass them ? Madi- son wondered that gentlemen could think that foreign nations would be willing to accept a treaty made by collusion. The President would instantly be impeached and be convicted, as a majority of the States so injured would try the impeachment. Henry begged the committee to consider the condition the country would be in if two-thirds of a quorum could alienate territorial rights and our most valuable commercial advantages. The treaty-making power of this new scheme exceeded that of any other nation of the earth. Gentlemen were going on in a fatal career, but he hoped they would stop before they concede this power unguarded and unaltered. Madison said that, instead of being alarmed, he had no doubt that the Constitution would increase rather than decrease our territorial and commercial rights, as it would augment the strength and respectability of the country. If treaties are to have any efficacy at all they must be the law of the land. He denied that the country could be dis- membered by a treaty in time of peace. The king of England could make a treaty of peace, but he could not dismember the empire or alienate any part of it. The king of France even had no such right. The right to make a treaty does not invoke the right of dismembering the Union. Henry asked how the power of the king of England would stand in respect to dismembering the empire if treaties were the supreme law of the land ? He would confess his error if the gentleman would prove that the power of the king and that of the Congress, as to making treaties, were similar. Madison conceived that as far as the king of England had a constitutional right of making a treaty, such a treaty was binding. He did not say that his power was unlim- ited. One exception was that he could not dismember the empire.
Grayson rose and made a brilliant and characteristic speech. After pointing out the difference of what was called the laws of nations in various countries and its different operations, he ex- pressed his alarm at the clause under discussion. He recurred to the dangers to which the right of navigating the Mississippi would be exposed, by surrendering the power of alienating it to the very States which had sought to attain their object by over- leaping the existing Constitution. He declared that such was
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his repugnance to the alienation of a right so dear to the South, so important to its expansion and prosperity, that, if the new scheme contained no other defect, he would object to it on this ground alone.
Nicholas, if with less elegance, with equal vigor of logic, re- plied to Grayson. He criticised with severity his views respect- ing the laws of nations ; represented his arguments derived from the risk of losing the navigation of the Mississippi as a renewal of the scuffle for Kentucky votes, and argued the power of the king of England and of the Congress in respect of the nature of treaties was the same. In each country it was equally without limit. In each it was, and must ever be, the supreme law of the land. If gentlemen can show that the king can go so far, I will show them the same limitation here. If, as the gentleman says, the weight of power ought to be with the South because we have more people here, then these people, who elect the Presi- dent, will elect a man who will attend to their interests. This is a sufficient check.
Henry instanced the case of the Russian ambassador in Queen Anne's time, to show that there was in England a limit to the treaty-making power. The emperor demanded that the man who had arrested his ambassador should be given up to him to be put to death. Queen Anne wrote with her own hand a letter to the emperor, in which she declared that it was beyond her power to surrender a British subject to a foreign power. We are in contact, he said, with Great Britain and with Spain. It is easy to define your rights now. Hereafter, when your citizens are charged with violating a treaty, will they have a fair trial? Will the laws of Virginia protect them in a Federal court? He denied that the same checks existed in the new scheme as existed in England. Can the king violate Magna Charta or the Bill of Rights by a treaty? Even the king of France calls on his par- liament to aid him in the making of treaties. When Henry VI made a treaty with Sigismund, king of Poland, he submitted it to parliament. Here we have only the President and the Senate.
Randolph availed himself of the concession of Henry, that if the treaty-making power were put on as good footing here as in England, he would consent to the power, because there the king had a limit to his power ; and showed the restraints placed upon the President and Senate. Would they seek to overturn the 18
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very government of which they were the creatures? He defied any one to show how the treaty power could be limited. As for dismembering a State, the Constitution expressly declares that nothing contained therein shall prejudice any claims of the United States or of any particular State. The House then ad- journed.
On Wednesday, the eighteenth of June, the House went into committee, Wythe in the chair, and the second clause of the second section of the second article still under consideration. Grayson took the floor. He adverted to the imminent risk of losing the Mississippi by the adoption of the clause in debate ; showed that the words of the Constitution quoted by Randolph as a protection to the territorial rights of the States applied ex- clusively to the titles held by the different States to the back lands ; and replied to the arguments of Nicholas in refutation of his views of the nature of the law of nations. He laid it down as a principle that a nation, like an individual, can renounce any particular right, and, to show that the Mississippi might be given up, he mentioned the case of the Scheldt which was surrendered by the treaty of Munster. Nicholas made an elaborate argu- ment to prove that there was no limit to the treaty-making power in England, and quoted directly in point the authority of Blackstone, who adds that the ministers who advised a bad treaty could be punished by impeachment. Here we can im- peach the President himself. In each country the treaty is the supreme law of the land ; but under the new Constitution only such treaties are binding as are made under the authority of the United States, which authority is bounded by that instrument. He argued that the case of the Russian ambassador did not ap- ply. It had no relation to a treaty. It was an offence against the law of nations, and Great Britain immediately passed an act which punished such offences in future committed within her own limits.
Corbin then rose, and in a capital speech, in which he exhibited great perspicacity in anticipating the real action of the Federal Government, supported the Constitution. He enforced some of the arguments urged by Nicholas, and in order to prove that a treaty was the supreme law in England, he said he would con- firm it by a circumstance fresh in the memory of every body. When our treaty of peace was made by England, Parliament
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disapproved of it, and the ministry was turned out; but the treaty was good. The great distinction in our favor was that while in England the minister only was responsible, here the President in person was responsible. Treaties must not be bind- ing at all-that is, we must have no treaties-or they must be binding altogether, or the country would be involved in perpetual war with foreign powers, and lose all the advantages of commer- cial intercourse. He drew a distinction between common and commercial treaties. By the first, if territory was dismembered, the people of Kentucky, for instance, would be justified by the laws of nations in resisting the treaty ; by the last, the House of Representatives would act, because of the necessity of the pas- sage of laws adapted to the state of the case. He said that the treaty-making power was amply guarded. If we are told that five States can make a treaty, we answer that three States can prevent it from being made. If the whole twenty-eight members are present, and, as men are apt to attend to their interests, it is fair to presume that they will be, then it will require nineteen to make a treaty, which is one member more than the nine States required by the Confederation. Henry said that the gen- tleman had fallen, unconsciously he knew, into an error when he said that the treaty of peace was binding on the nation though disapproved by Parliament. Did not an act pass acknowledging the independence of America ? No cession of territory is bind- ing in England without the authority of an act of Parliament. Will it be so here? They will tell you that they are omnipotent on this point.
Madison then pronounced an admirable disquisition on the treaty-making power. He showed that this power was exactly the same under the Confederation and under the Constitution ; that the exercise of this power must always be consistent with the object which it was delegated to attain ; that, as this power could only be exercised with foreign nations, its objects must be external ; that, as it is impossible to foresee all our relations with other nations, so it would be imprudent to limit our capacity of action in regard to them ; that, in transactions with foreign coun- tries, it is fair to presume that we would prefer our own interests and honor to theirs, and not wantonly sacrifice the rights of our people; and the minister who negotiates the treaty, who is indeed our President, is liable to be punished in person for mal-
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feasance. He said the case of the Russian ambassador was not applicable to the subject any more than other quotations made by the gentleman (Henry). Corbin admitted that an act of Par- liament did pass acknowledging the independence of America, but said that there was nothing about the fisheries in that act, yet that part of the treaty relating to them was binding. 218
We now approach a theme which, in itself considered, pos- sessed an importance in the eyes of our fathers that language would vainly attempt to measure, which was discussed with a fullness of learning, with a keenness of logic, and with a glow of eloquence that it might well elicit, and which, though technical, and seen through a vista of seventy years, cannot fail to strike a responsive chord in the breasts of every true son and daughter of our noble Commonwealth. But, added to its own intrinsic dignity, it now received an additional interest derived from the state of the contest between the friends and the opponents of the Constitution. It was to be the last battle-ground of the parties into which the Convention was in nearly equal proportions divided, and from which the members were to pass to the final vote.
In reviewing the discussions of the Convention we should not forget that the experience of seventy years, derived from a minute observation of the workings of a political system, will place a child apparently on the same level with a giant, and the merest tyro in politics with a Somers or a Mason ; and we should espe- cially remember that time was an element in the calculations of our ancestors ; that seventy years bears to the life of a nation no greater proportion than a single year bears to the life of an indi- vidual, and that the fears and gloomy predictions uttered by the opponents of the Constitution have, by the vigilance and caution which they inspired, operated in a material degree in preventing their own fulfillment. As no two complicated political systems which were identical in all their relations and circumstances ever did or can exist, the wisest statesmen in predicting their opera -
218 Corbin was probably present in the House of Commons when the treaty was under discussion. The lovers of Fox must always deplore his unprincipled and factious opposition to the treaty, and the iniqui- tous coalition with Lord North, which succeeded in turning out Lord Shelburne for his approval of the treaty. To this day that coalition stands alone in its deformity and in the contempt and scorn of mankind.
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tion can only judge from the general experience of the past. Hence arguments and analogies, hopes and fears, which seem chimerical now, might have had great weight with men who were quite as wise and as bold as those who have succeeded them, and who were more intimately acquainted with the difficulties of their age than it was possible for their successors to be. Another great element which pervaded the reasonings both of the friends and enemies of the new scheme consisted in the belief that, as the State governments, even when they drew a revenue from imposts, relied mainly for their support on direct taxation, such would also be the case with the Federal Government. The immense revenue which has flowed from the customs and from the sales of western lands into the Federal treasury, was not fore- seen in its full extent by either of the great parties. It is true that both looked to a revenue from the customs ; but while the ablest statesmen on either side agreed that the revenue from cus- toms would increase for a limited period, the friends of the new system contended that the period when the increase from that source would determine, was not very remote. 219 But the states- man who would have ventured to predict that in half a century the customs of a single year would equal the amount of the entire debt of the Revolution, would have been derided as a vain theo- rist, or a wild babbler who sought to mislead other minds by the absurd creations of his own. The low rate of duties which the principal friends of the Constitution fixed upon as the standard for the customs, indicates what was anticipated from that source.220 And the result was that both parties looked to direct taxation as the source from which the income of the new government would accrue. Their arguments were based on this supposition; and it can hardly be doubted that, if direct taxation had been the prin-
219 See a previous debate between Grayson, Madison, and Corbin. Grayson argued that the period of decline would be very remote ; Madison, that the highest point would be reached in less time than that specified by Grayson, when the duties would begin to decline. Corbin showed by arithmetical calculations that the revenue from the customs would immediately become a handsome source of revenue.
220 Pendleton, as late as 1792, thought five per cent. high enough ; and Grayson thought that two and a half per cent. would, by preventing smuggling, put more money into the treasury. Grayson, supra, and Pendleton's letter on the tariff.
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cipal source of the Federal revenue, and the rate of expenditure under the Constitution had been the same, the most dismal vati- `cinations would have been verified, and the union would scarcely have survived a quarter of a century. And it may be safely affirmed that the calamities predicted by our fathers have been averted, and the union preserved safe to our times, not so much in consequence of the provisions of the Constitution, as of the source from which the principal revenue has accrued.
But the prospect which was presented in the year 1788 was widely different. The unlimited power of direct taxation was to be ceded to the new government, and the Congress was to be · empowered to pass such laws as might be deemed necessary to carry it into effect. And what increased the general anxiety was, that those laws were to be enforced by tribunals appointed by the Federal authority, responsible to that authority, and wholly beyond the reach of the government of the State. The citizen who had heretofore looked with confidence to his own General Assembly for protection, now, when the land was to be overrun with Federal judges, Federal sheriffs, Federal constables, and Federal jails, and when he needed that protection most, would look in vain.
From these apprehensions, however, it was possible to escape. The citizen who had satisfied the full demands of the Federal sheriff, and who was so fortunate as not to owe a dollar, might be safe. The dangers which beset that epoch were peculiar to a people who had just passed through a revolution of eight years, and are not likely to occur again ; but they then presented an aspect so fearful as to fill the most dispassionate statesman with alarm. These dangers were such that no effort of an individual could elude them, and which threatened whole communities with ruin. Extensive grants of land, made under the royal govern- ment, had been confiscated by the State, and in the lapse of twelve years had been purchased and settled by active, indus- trious, and brave men, who had encountered the terrors of the wilderness, had driven back the savage, had cleared farms, and had built homes for their families. Every foot of these lands were now in jeopardy. Every farmer in the Northern Neck was liable to be dragged into a Federal court, to be evicted from his home, and to be cast with his wife and children on the world. Every farmer of the valley of Virginia, from the summit of the
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Blue Ridge to the summit of the Alleghany, was in equal peril. The claims of the Indiana Company, if established by the Federal court, would involve thousands of poor, honest, but high-spirited men, who had fought gallantly during the war, in total ruin. Federal decisions involving such results could only be enforced by the bayonet, and civil war, deplorable as it must ever be, was one only of the evils that might flow from a resort to arms. The Commonwealth might be cut in twain. There might arise in the West a new, enterprising, and warlike State, which, sus- tained by the valor and skill of the soldiers who had been trained in the Indian wars and in the Revolution, and who had made, or might make, Kentucky their home, and upheld by the willing aid of England in the North and of Spain in the South, would not only bid defiance to the laws of the Federal Government, but might succeed in confining the boundaries of the States to the eastern slopes of the Blue Ridge. Wise statesmen, who saw the extent of the public peril, cautiously withheld any open expression of their opinions, but sought in private to contravene the dreaded calamity as far as was within their power. The intensity of a great crisis is not always to be estimated by the causes which produced it; and fearful as was, in the opinion of many, the surrender of the purse and the sword, the surrender of the right of trial involving men's lives and lands seemed more fearful still.
Another topic which created no little anxiety in the minds of those who were now to discuss the judiciary department of the new system was the payment of the British debts. The pay- ment of these debts, estimated at several millions of dollars, 221 and deemed by many judicious persons a harsh measure in itself, might prove a fruitful source of annoyance to the people. These debts had been confiscated by the State, had been paid in whole or in part into the public treasury, and were claimed by foreigners. The debtors might then be brought into a Federal court held hundreds of miles from their homes, and forced to pay those debts a second time, and in coin. As these debts were
221 I have never been able to make up my mind as to the true amount of the British debts. Some estimate it at ten millions. If this estimate was made on the value of a paper currency before that currency began to decline rapidly, it may be not far from the mark. I am disposed to think that three millions of dollars in coin would cover the amount.
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owed by Eastern men, the subject of the new judiciary had a relation to them in this respect alone as delicate and as personal as to the people of the West.
None saw the difficulties of the crisis more distinctly than the friends of the Constitution, or could have adopted a safer line of policy. The judiciary department of the new system must be introduced to the committee by one of their number, and under the most favorable auspices. Its virtues should be carefully and deliberately set forth, its defects even pointed out, and the mode of amending those defects prescribed ; and this office must de- volve on an individual who to eminent skill as a debater, as a lawyer, and as a judge, should add the authority of high charac- ter and great services. In a body of which Pendleton was a member there could be no hesitation in the choice of the proper person. His years, his weakness, the frail tenure which seemed to hold him to life, would impart to his opinions on a subject peculiarly his own the weight of a parting benediction. Ac- cordingly, as soon as the first and second sections of the third article were read,222 though showing in his face the effects of re-
222 "SEC. I. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.
"SEC. II. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority , to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States, between a State and the citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.
" In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
"The trial of all crimes, except in cases of impeachment, shall be by
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cent illness, this venerable man was assisted to his crutches, and forthwith addressed the Chair. Nor did he ever deliver, in the vigor of health and in the height of his fame, a more ingenious or a more conclusive speech. He had studied the subject with the strictest attention, had analyzed with inimitable tact the va- rious powers ceded to the judiciary, had scanned the defects of the system as he had scanned its perfections, and delivered a speech which, even in the meagre shreds that have come down to us, displays the attributes of a consummate debater in admi- rable juxtaposition with those of an accomplished judge. He began by saying that, in a former review of the Constitution at large, he had mentioned the necessity of making the judiciary an essential part of the government; that it was necessary to arrest the executive arm, to prevent arbitrary punishments, to guard the innocent, to punish the guilty, to protect honesty and industry, and to punish violence and fraud. Conceding, then, . that a judiciary was necessary, it must also be conceded that it must be co-extensive with the legislative power, and extend to all parts of the society intended to be governed. It must be so arranged that there shall be some court which will be the central point of its operations ; and for the plain reason that all the busi- ness cannot be done at the central point, there must be inferior courts to carry it on. The first clause contains an arrangement of the courts-one supreme, and such inferior as Congress may ordain and establish. This is highly proper. Congress will be the judge of the public convenience, and may change and vary the inferior courts as experience shall dictate. It would there- fore have been not only improper, but exceedingly inconvenient to fix the arrangement in the Constitution itself, instead of leav- ing it to be changed according to circumstances. He then ex- pressed an opinion, which was confirmed in the same debate by Madison, and which may seem strange in our times, that the first experiment would probably be to appoint the State courts to have the inferior Federal jurisdiction, as such a plan would give general satisfaction and promote economy. But even this eligi- ble mode experience may furnish powerful reasons for changing,
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