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 31
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39
jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law direct,"
a
282
VIRGINIA CONVENTION OF 1788.
and Congress very properly possesses the power to alter the ar- rangement. He said this clause also secures the independence of the judges, both as to tenure of office and pay of salary ; and he wished it had extended to increase as well as diminution. When he had enumerated and dwelt upon the subject of the jurisdiction of the supreme court, he concluded that the necessity and propriety of Federal jurisdiction in such general cases would be obvious to all. He adverted to the second clause of the section which settles the original jurisdiction of the supreme court, and confines it to ambassadors, ministers, and consuls, and to cases in which a State shall be a party. And here he sought to an- ticipate an objection which he knew would be urged by his op- ponents, by showing that, though the original jurisdiction was limited to the objects mentioned, yet Congress may go farther and exclude its original jurisdiction by limiting, for obvious and beneficial purposes, the cases in which it shall be exercised. Yet the Legislature cannot extend its original jurisdiction. He then dwelt on the appellate jurisdiction of the court. He said that it was necessary, in all free systems, to allow appeals under certain circumstances, in order to prevent injustice by correcting the erroneous decisions of inferior tribunals, and to introduce uniformity in decisions. This appellate jurisdiction was mani- festly proper, and could not have been objected to, if the Consti- tution had not unfortunately contained the words, "both as to law and fact." He sincerely wished these words had been buried in oblivion ; if they were, the strongest objection against the section would have been removed. He would give his free and candid sentiments on the subject. "We find," he said, "these words followed by others, which remove a great deal of doubt : ' With such exceptions and under such regulations as Congress shall make.' So that Congress may make such regulations as the public convenience may require."
" Let us consider the appellate jurisdiction, if these words had been left out. The general jurisdiction must embrace decrees in chancery and admiralty, and judgments in courts of common law, in the ordinary practice of this appellate jurisdiction. When there is an appeal from the inferior court to the court of chancery, the appellate jurisdiction goes to law and fact, because the whole testimony appears in the record. The court proceeds to consider the circumstances of both law and fact blended
-
283
VIRGINIA CONVENTION OF 1788.
together, and then decrees according to equity. This must be unexceptionable to everybody. How is it in appeals from the admiralty ? That court, except in some cases, proceeds as a court of chancery. In some cases they have trials by jury. But in most cases they proceed as in chancery. They consider all the circumstances, and determine as well what the fact as what the law is. When this goes to the superior court, it is deter- mined in the same way. Appeals from the common law courts involve the consideration of facts by the superior court, when there is a special verdict. They consider the fact and the law together, and decide accordingly. But they cannot introduce new testimony. When a jury proceeds to try a cause in an inferior court, a question may arise on the competency of a witness, or some other testimony. The inferior court decides that question. They either admit or reject that evidence. The party intending to object states the matter in a bill of exceptions. The jury then proceeds to try the cause according to the judg- ment of the inferior court ; and, on appeal, the superior court determines upon the judgment of the inferior court. They do not touch the testimony. If they determine that the evidence was either improperly admitted or rejected, they set aside the judgment, and send back the cause to be tried again by a jury in the same court. These are the only cases in appeal from inferior courts of common law where the superior court can even consider facts incidentally. I feel the danger, he said, as much as any gentleman in this committee, of carrying a party to the Federal court to have a trial there. But it appears to me that it will not be the case if that be the practice I have now stated; and that that is the practice must be admitted. The appeals may be limited to a certain sum. You cannot prevent appeals without great inconvenience. But Congress can prevent that dreadful oppression which would enable many men to have a trial in the Federal court, which is ruinous. Congress may make regulations which will render appeals as to law and fact proper and perfectly inoffensive. If I thought that there was a possibility of danger I would be alarmed ; but when I consider who Congress are, I cannot conceive that they will subject the citizens to oppressions of that dangerous kind." When he had arrived at that point of his argument when the trial by jury, and
الاله الـ
n
284
VIRGINIA CONVENTION OF 1788.
that trial to be held in the State where the offence was committed, was considered, his voice failed, and he resumed his seat.
Mason then spoke. He had cherished the hope, he said, that the warmest friends of the Constitution would have pointed out the important defects of the judiciary ; and, as it was not in his line, he would have held his peace, if he were not convinced that it was so constructed as to destroy the dearest rights of the com- munity. Having read the first section, he inquired, what is there left to the State courts? What remains? There is no limitation. The inferior courts are to be as numerous as Congress may think proper. All the laws of the United States are paramount to the laws and the Constitution of Virginia. "The judicial power shall extend to all cases in law and equity arising under this Constitution." What objects will not be comprehended by this provision ? Such laws may be framed as will include every object of private property. When we consider the nature and the operation of these courts, we must conclude that they will destroy the State governments. As to my own opinion, he said, I most religiously and conscientiously believe that it was the intention to weaken the State governments, to make them con- temptible, and then to destroy them. But, whatever may have been the intention, I think that it will destroy the State govern- ments. There are many gentlemen in the United States who think it right that we should have one great consolidated govern- ment, and that it was better to bring it about slowly and imper- ceptibly than all at once. This is no reflection on any man, for I mean none. I know from my own knowledge that there are many worthy gentlemen of this opinion. (Here Madison inter- rupted Mason, and demanded an unequivocal explanation. As those insinuations might create a belief that every member of the late Federal Convention was of that opinion, he wished him to tell to whom he alluded. ) Mason replied : " I shall never refuse to explain myself. It is notorious this is a prevailing principle. It was at least the opinion of many gentlemen in Convention, many in the United States. I do not know what explanation the honorable gentleman asks. I can say with great truth that the honorable gentleman, in private conversation with me, ex- pressed himself against it. Neither did I ever hear any of the . delegates from this State advocate it." Madison declared him-
.
0
285
VIRGINIA CONVENTION OF 1788.
self satisfied with this, unless the committee thought themselves entitled to ask a further explanation.223
Mason continued : " I have heard that opinion advocated by gentlemen for whose abilities, judgment, and knowledge I have the highest reverence and respect. I say that the general de- scription of the judiciary involves the most extensive jurisdic- tion. Its cognizance in all cases arising under that system, and the laws of Congress, may be said to be unlimited. In the next place it extends to treaties made, or which shall be made, under their authority. This is one of the powers that ought to be given them. I also admit that they ought to have judicial cognizance in all cases affecting ambassadors, public ministers, and consuls, as well as in cases of maritime jurisdiction. The next power of the judiciary is also necessary, under some restrictions. Though the decision of controversies to which the United States shall be a party, may at first view seem proper, it may, without restraint, be extended to a dangerously oppressive length. The next, with respect to disputes between two or more States, is right. I can- not see the propriety of the next power, in disputes between a State and the citizens of another State. As to controversies between citizens of different States, their power is improper and inadmissible. In disputes between citizens of the same State claiming lands under the grants of different States, the power is proper. It is the only case in which the Federal judiciary ought to have appellate cognizance of disputes between private citizens. The last clause was still more improper. To give them cognizance between a State and the citizens thereof is utterly inconsistent with reason and sound policy." Here Nich- olas rose and informed Mason that his interpretation was not warranted by the words. Mason replied that if he recollected rightly, the propriety of the power as explained by him had been contended for ; but that, as his memory had never been good, and was now much impaired from his age, he would not insist on that interpretation. He then proceeded : "Give me
223 Madison manifested great sensitiveness during the speech of Mason, and it is not to be disguised that he did touch doctrines in the Convention which would have led the way to the plan denounced by Mason; for he is reported by Yates to have said that the States were never sovereign, and were petty corporations. See Yates' Reports, end the letter of Madison, published in the collection of McGuire.
L
286
VIRGINIA CONVENTION OF 1788.
leave," he said, "to advert to the operation of this judicial power. Its jurisdiction in the first case will extend to all cases affecting revenue, excise and custom-house officers. It will take in of course what others do to them, and what is done by them to others. In what predicament will our citizens then be? If any of the Federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton bru- tality to a man's wife or daughter, where is this man to get relief? His case will be decided by Federal judges. Even sup- posing the poor man may be able to obtain judgment in the inferior court for the greatest injury, what justice can he get on appeal? Can he go four or five hundred miles ? Can he stand the expense attending it? On this occasion they are to judge of fact as well as law. He must bring his witnesses where he is not known, where a new evidence may be brought against him, of which he never heard before, and which he cannot contradict."
The honorable gentleman who presides, he said, has told us that the supreme court of appeals must embrace every object of maritime, chancery, and common law controversy. In the two first the indiscriminate appellate jurisdiction as to fact must be generally granted ; because otherwise it would exclude appeals in those cases. But why not discriminate as to matters of fact in common law controversies? The honorable gentleman has al- lowed that it was dangerous, but hopes regulations will be made to suit the convenience of the people. But mere hope is not a sufficient security. I have said that it appears to me (though I am no lawyer) to be very dangerous. Give me leave to lay be- fore the committee an amendment which I think convenient, easy, and proper. (Here Mason proposed an alteration nearly the same as the first part of the Fourteenth Amendment recom- mended by the Convention, which see in the Appendix.)
The jurisdiction of the Federal courts extends to controver- sies between citizens of different States. Can we not trust our State courts with the decision of these? If I have a controversy with a man in Maryland-if a man in Maryland has my bond for a hundred pounds-are not the State courts competent to try it? Why carry me a thousand miles from home-from my family and business-where it may perhaps be impossible for me to prove that I have paid it? I may have a witness who saw me pay the money ; and I must carry him a thousand miles or be
IT
287
VIRGINIA CONVENTION OF 1788.
compelled to pay the money again. "What effect," he inquired, "will this power have between British creditors and the citizens of this State? This is a ground on which I shall speak with con- fidence. Everyone who heard me speak on the subject knows that I always spoke for the payment of the British debts. I wish every honest debt to be paid. Though I would wish to pay the British creditor, yet I would not put it in his power to gratify private malice, to our injury. Every British creditor can bring his debtors to the Federal court. There are a thousand in- stances where debts have been paid, and yet by this appellate cognizance be paid again. 'To controversies between a State and the citizens of another State.' How will their jurisdiction in this case do? Let the gentleman look to the westward. Claims respecting those lands, every liquidated account, or other claim against this State, will be tried before the Federal court. Is not this disgraceful? Is the State of Virginia to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the State to be arraigned like a culprit, or a private offender? Will the States undergo this mortification? I think this power perfectly unnecessary. What is to be done if a judgment be obtained against a State? Will you issue a fieri facias ? It would be ludicrous to say that you would put the State's body in jail. How is the judgment then to be enforced? A power which cannot be executed ought not to be granted."
"Let us consider," said Mason, "the operation of the last subject of its cognizance-controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects. There is a confusion in this case. This much, however, may be raised out of it-that a suit will be brought against Virginia. She may be sued by a foreign State. What reciprocity is there in it? In a suit between Virginia and a foreign State, is the foreign State to be bound by the decision ? Is there a similar privilege given to us in foreign States? How will the decision be enforced ? Only by the ultima ratio regum. A dispute between a foreign citizen or subject and a Virginian, cannot be tried in our own courts, but must be decided in the Federal conrts. Cannot we trust the State courts with a dispute between a Frenchman, or an Englishman, and a citizen; or with disputes between two Frenchmen? This is digraceful. It will annihilate your State judiciary. It will prostrate your Legislature. Thus, sir,"
a
In
-
288
VIRGINIA CONVENTION OF 1788.
he said, "it appeared to me that the greater part of the powers are unnecessary, dangerous, tending inevitably to impair and ultimately to destroy the State judiciaries, and by the same prin- ciple, the legislation of the State governments. After mentioning the original jurisdiction of the supreme court, it gives it appellate jurisdiction in all the other cases mentioned, both as to law and fact, indiscriminately, and without limitation. Why not remove the cause of fear and danger ? But it is said that the regulations of Congress will remove it. I say that, in my opinion, those regulations will have a contrary effect, and will utterly annihilate your State courts. Who are the court ? The judges. It is a familiar distinction. We frequently speak of a court in contra- distinction to a jury. The judges on the bench are to be judges of fact and law. Now give me leave to ask : Are not juries excluded entirely? This great palladium of national safety, which is secured by our own State governments, will be taken from us in the Federal courts ; or, if it be reserved, it will be but in name, and not in substance. This sacred right ought to be secured."
'He then adverted to some of the probable effects of the deci- sions of Federal courts. "I dread," he said, "the ruin that will be brought upon thirty thousand of our people with respect to disputed lands. I am personally endangered as an inhabitant of the Northern Neck. The people of that section will be com - pelled by the operation of this power to pay the quit-rents of their lands., Whatever other gentlemen may think, I consider this a most serious alarm. It will little avail a man to make a profession of his candor. It is to his character and reputation they will appeal. To these I wish gentlemen to appeal for an inter- pretation of my motives and views. Lord Fairfax's title was clear and undisputed. After the Revolution we taxed his lands as private property. After his death an Act of Assembly was made (in 1782) to sequester the quit-rents due at his death in the hands of his debtors. Next year an act was made restoring them to the executor of the proprietor. Subsequent to this the treaty of peace was made, by which it was agreed that there should be no further confiscations. But after this an Act of Assembly passed confiscating this whole property. As Lord Fairfax's title was indisputably good, and as treaties are to be the supreme law of the land, will not his representatives be able to recover all in the
0
289
VIRGINIA CONVENTION OF 1788.
Federal court ? How will gentlemen like to pay an additional . tax on the lands in the Northern Neck? This the operation of this system will compel them to do. They are now subject to the same taxes other citizens are, and if the quit-rents be recov- ered in the Federal court they will be doubly taxed. This may be called an assertion ; but were I going to my grave I would appeal to Heaven that I think it true. How will a poor man get relief when dispossessed unjustly ? Is he to go to the Federal court eight hundred miles off? He might as well give up his claim."
"Look," said Mason, "to that great tract of country between the Blue Ridge and the Alleghany mountains. Every foot of it will be claimed, and probably recovered in the Federal court from their present possessors, by foreign companies which have a title to them. These lands have been sold to a great number of people. Many settled on them on terms which were advertised. How will this be in respect of ex post facto laws? We have not only confirmed the title of those who made the contracts, but those who did not, by a law in 1779, on their paying the original price. Much was paid in a depreciated value, and much not paid at all. Look now to the Indiana Company. The great Indiana purchase, which was made to the westward, will by this new judicial power be made a cause of dispute. The possessors may be ejected from those lands. That company paid a consid- eration of ten thousand pounds to the Crown before the lands were taken up. That company may now come in and show that they have paid the money, and have a full right to the land. Three or four counties are settled on those lands, and have long enjoyed them peacefully. All these claims before those courts, if successful, will introduce a scene of distress and confusion almost without a parallel. The gloomy pictures which Virgil has painted of a desolated country and an ejected people will be seen in our own land ; and from hundreds of honest and thrifty men reduced to ruin and misery, and driven with their families from their homes, we will hear the mournful ditty of the poet :
Nos patriam fugimus-et dulcia linquimus arva.
Mason concluded by offering an amendment which would pre- vent such direful results as he feared would happen, in these words : " That the judiciary power shall extend to no case where
19
أد خامة
290
VIRGINIA CONVENTION OF 1788.
the cause of action shall have originated before the ratification of this Constitution, except in suits for debts due to the United States, disputes between States about their territory, and dis- putes between persons claiming lands under the grants of differ- ent States." In these cases there is an obvious necessity for giving the court a retrospective power. "I have laid before you," he said, "my ideas on the subject, and expressed my fears, which I most conscientiously believe to be well-founded."
It was now past the usual hour of adjournment, but late as it was, Madison rose to break the effect of Mason's speech. He said that he did not wonder that Mason, who believed the judiciary system so fatal to the liberties of the country, should have opposed it with so much warmth ; but as he believed his fears were groundless, he would endeavor to refute his objec- tions wherein they appeared to him ill-founded. He confessed that there were defects in the judiciary-that it might have been better expressed ; but that truth obliged him to put a fair interpretation upon the words of the Constitution ; and as it was late, he could not then enter fully on the subject. He hoped, however, that gentleman would see that the dangers pointed out by Mason did not necessarily follow. The House then adjourned.
On Friday, the twentieth of June, the House went into com- mittee, Wythe in the chair, and the first and second sections of the third article still under consideration.
Madison rose to reply to Mason. There was an evident inter- est shown to hear the speech of Madison, who, like Mason, was not a lawyer, on a topic which was beyond the usual sphere of a politician, and which had been argued with such eminent ability by Mason the day before. When Madison had detailed at some length the difficulties inseparable from the task of form- ing a Federal compact between different States whose interests and opinions were apparently diverse, and had referred to the executive department of the Constitution, and especially the judiciary in the way of illustration, he discussed the question of the judiciary under two heads; the first, whether the subjects of its cognizance be proper subjects for Federal jurisdiction, and next, whether the provisions respecting it will be consistent with safety and propriety, will answer the purposes intended, and suit local circumstances. Under the first head he discussed the powers of the judiciary. As to its jurisdiction in controversies
291
VIRGINIA CONVENTION OF 1788.
between a State and the citizens of another State, its only opera- tion would be that if a State wished to bring suit against an indi- vidual, it must be brought in the Federal court. It is not in the power of individuals to call any State into court. As to its cog- nizance of disputes between citizens of different States, perhaps this authority ought to have been left to the State courts. He thought that the result would be rather salutary than otherwise. As to disputes between foreign States and one of our States, should such a case ever arise, it could only come on by consent of parties. It might avert difficulties with foreign powers. Ought a single State have it in its power to involve the union at any time in war?
Under the second head, he said, suppose the subjects of juris- diction had only been enumerated, and full power given to Con- gress to establish courts, would there have been any valid ob- jection ? But the present arrangement was better and more restrictive. As to the objections against the appellate cognizance of fact as well as law, he mainly relied on the arguments and authority of Pendleton, which were conclusive with him. Con- gress may make a regulation to prevent such appeals entirely. He argued that in so far as the judicial power extended to con- troversies between citizens of different States, it was beneficial to the commercial States, and proportionally to Virginia. He be- lieved that the Legislature would accommodate the judicial power to the necessities of the people, and instead of making the supreme court stationary, will fix it in different parts of the Continent, as was done with the admiralty courts under the Con- federation. It would also be in the power of Congress to vest the judicial power in the inferior and superior courts of the States. Gentlemen argued that the Legislature would do all the ill that was possible. Distrust to a certain extent was wise ; he did not lean to over-confidence himself; but without some measure of confidence government was impossible .. Without confidence no theoretical checks, no form of government could render us secure. It was objected that the jurisdiction of the Federal courts would annihilate the State courts ; but, though there then were from peculiar circumstances many cases between citizens of different States, it might never occur again, and he affirmed that hereafter ninety-nine cases out of a hundred would remain with the State courts. As to vexatious appeals, they can
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.