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 32
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- be remedied by Congress. If the State courts were on a good footing, what would induce men to take such trouble? And if this provision should have the effect of establishing universal justice, and accelerating it in America, it would be a most fortu- nate result for debtors. Confidence would take the place of distrust, and the circulation of confidence was better than the circulation of money. No political system can directly pay the debts of individuals. Industry and economy are the only re- sources of those who owe money. But by the establishment of confidence the value of property will be raised, capital will go in quest of labor, and all will share in the general prosperity. Madison concluded by saying that he would not enter into those considerations which Mason added, but hoped some other gen- tleman would undertake to answer him. 224
Henry rose to reply to Pendleton and Madison. He said that he had already expressed painful sensations at the surrender of our great rights, and was again driven to the mournful recollec- tion. The purse is gone-the sword is gone-and here is the only thing of any importance that remains with us! He con- tended that the powers in the section under discussion were either impracticable, or, if reducible to practice, dangerous in the extreme. He deplored the idea suggested by Pendleton and sanctioned by Madison, that "our State judges would be con- tented to be Federal judges and State judges too." "If we are to be deprived of that class of men, and if they are to com- bine against us with the Federal Government, we are gone ! I regard the Virginia judiciary as one of the best barriers against the strides of power. So few are the barriers against the encroachments and usurpations of Congress, that when I see this last barrier, the independency of the judges impaired, I am persuaded that I see the prostration of all of our rights. In what a situation will your judges be when they are sworn to preserve the Constitution of the State and that of the Federal Government? If there should be a concurrent dispute be- tween the two governments, which shall prevail? My only comfort, he said, was the independence of the judges. If by this system we lose it, we must sit down quietly and be
224 In relation to British debts, the Fairfax grants, the Indiana Com- pany, &c.
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oppressed. He discussed at length the appellate jurisdiction of the courts, and contended that, if the arguments of the gentle- men were just, and that Congress would make such a judiciary as it pleased, then Congress can alter and amend the Constitu- tion. And if the Constitution is to be altered, on whom ought that duty to devolve? On the members of Congress, or on those who are now entrusted with the office of securing the public rights on a firm and certain foundation beyond the reach of con- tingencies? He reverted to the remark of Madison that there were great difficulties in framing a Constitution. "I acknowl- edge it," he said ; "but I have seen difficulties conquered which were as unconquerable as this. We are told that trial by jury is a technical term. Do we not know its meaning? I see one thing in this Constitution-I made the remark before-that everything with respect to privileges is so involved in darkness, it makes me suspicious, not of those gentlemen who formed it, but of its operation in its present form. Trial by jury is secured in criminal cases, it is said; I would rather it had been left out altogether than have it so vaguely and equivocally provided for. He endorsed the reasoning of Mason about the incarcerating of a State, begged to know how money was to be paid if the State was cast, and denounced the folly of investing the judiciary with a power that could not be enforced. He contended that the pro- visions of the clause in debate would operate as a retrospective law, which was odious in civil cases as ex post facto were in criminal, and that citizens would be subject to a tribunal unknown at the time the contracts were made. He contested the assertion of Madison that, in controversies between a State and the citi- zens of other States, a State could not be brought into court. The gentleman asserts that the State can only be plaintiff ; but that paper says Virginia may be defendant as well as plaintiff. If gentlemen construe that paper so loosely now, what will they do when our rights and liberties are in their power? He de- clared that this judiciary presented the first instance ever known among civilized men of the establishment of a tribunal to try disputes between the aggregate society and foreign powers. He then discoursed at length upon the trial by jury, quoting Black- stone's remarks upon it, and its virtual sacrifice under the new scheme ; and asked: "Shall Americans give up that which nothing could induce the English people to relinquish? The
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idea is abhorrent to my mind. There was a time when we would have spurned at it. This gives me comfort that as long as I live my neighbors will protect me. Old as I am, it is probable I may yet have the appellation of rebel. I trust I shall see congres- sional oppression crushed in embryo. As this government stands, I despise and abhor it. 'Gentlemen demand it, though it takes away the trial by jury in civil cases, and does worse than take it away in criminal cases. It is gone, unless you preserve it now. I shall add no more but that I hope that gentlemen will recollect what they are about to do, and consider that they are about to give up this last and best privilege."
Pendleton replied to Mason and Henry. He said that if there had been any person in the audience who had never read the Constitution and had heard what has just been said, he would be surprised to learn that trial by jury was not excluded in civil cases, and was expressly provided in criminal cases. He had not heard that kind of argument in favor of the Constitution. It is insisted that the right of challenging has not been secured ; but when the Constitution says that the trial shall be by jury, does it not also say that every incident shall go along with it? The honorable gentleman (Mason) was mistaken yesterday in his reasoning on the propriety of a jury from the vicinage. He supposed that a jury from the vicinage was had from this view-that they should be acquainted with the character of the person accused. I thought, said Pendleton, that it was with another view-that the jury might have some personal knowl- edge of the fact and acquaintance with the witnesses who will come from the neighborhood.225 The same gentleman objected
225 Pendleton sought to make mirth with those gentlemen of the law in the Convention who thought that none but lawyers can understand legal questions. The fact is that Mason was clearly right, and Pendle- ton clearly wrong. Mason did not contend that a jury from the vici- nage was the sole benefit accruing from jury trial, but that it was an important one, as it assuredly is, which a criminal, carried a thousand miles from his home, would lose. As Pendleton wholly excludes from his view this great benefit, it is he that errs, and not Mason. The his- tory of trial by jury proves incontestibly that one of its most precious privileges was that the criminal should be tried by his peers ( pares)- that is, by men living in the same region, placed under the same cir- cumstances, and liable to be punished for the same crimes, upon the testimony of the same men. When it is considered that it was mainly
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to the unlimited power of appointing inferior courts. Why limit the power ? Ought there not to be a court in every State? Ought there not to be more than one, should the convenience of the people hereafter require it? Look at our own legislation. What would have been the condition of our Western counties, and of Kentucky in particular, if our Legislature had not pos- sessed this power? We established a general court in that dis- trict, but we did not lose sight of making every part of our territory subject to one supreme tribunal. Appeals lay from that court to the court of appeals here. And what was the result ? There has not been a single appeal. He also objected to the clause which provides that cases under the Constitution and the Laws made in pursuance thereof, should be tried in the Federal court. Ought such matters to be tried in the State courts? But he says that Congress will make bad laws. Is not this carrying suspicion to an extreme that tends to prove that there should be no Legislature or judiciary at all? But we are alarmed with the idea that this is a consolidated government. It is so, say gentlemen, in the other two great departments, and it must be so in the judiciary. I never considered it, said Pendleton, to be a consolidated government as to involve the interests of all America. Of the two objects of judicial cognizance, one is gen- eral and national, and the other local. The former is given to the general judiciary, and the latter left to the local tribunals. They act in co-operation to secure our liberty. For the sake of economy the appointment of these courts might be in the State courts. I rely on an honest interpretation from independent judges. An honest man would not serve otherwise, because it would be to serve a dishonest purpose. To give execution to proper laws is their peculiar province. There is no inconsis- tency, impropriety, or danger in giving the State judges the Federal cognizance. Every gentleman who beholds my situa- tion, my infirmity, and various other considerations, will hardly suppose that I carry my view to an accumulation of power. Ever since I had any power, I was more anxious to discharge my duty than to increase my power.
introduced to prevent oppression by the government and by superior lunds, the vicinage of his triers is an important consideration to the cul- prit, whose character will then, and only then, have its proper weight in his favor.
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Pendleton then argued that the impossibility of calling a sove- reign State to the tribunal of another sovereign State, showed the propriety and necessity of vesting the Federal court with the decision of controversies to which a State shall be a party. But the principal objection of the gentleman (Mason) was, that juris- diction was given the Federal court in disputes between citizens of different States. I think, said Pendleton, that in general those decisions might be left to the State tribunals, especially as citizens of one State are declared citizens of all. But cases may arise in which this jurisdiction would be proper, as in the case of Rhode Island, where a citizen of another State would be compelled to accept payment of one-third or less of his money. Ought he not to be able to carry his claim to a court where such unworthy principles do not prevail ? He denied that there was any force in the case put by Mason of the malicious assignment of a bond to a citizen of a neighboring State, Maryland for instance. The creditor cannot carry the debtor to Maryland. He must sue in the local Federal court ; the creditor cannot appeal. He gets a judgment. The defendant only can appeal, and gains a privilege instead of an injury. As to the amendment proposed by the gentleman, I attended to it, said Pendleton, and it gave force to my opinion, that it is better to leave the subject to be amended by the legislation of Congress. The honorable gentleman (Henry) argued to-day that it was placing too much confi- dence in agents and rulers. Will the representatives of any twelve States sacrifice their own interest and that of their citizens to answer no purpose? But suppose we should be deceived ; have we no security ? So great was the spirit of America that it was found sufficient to oppose the greatest power in the world. Will not that spirit protect us against any danger from our own representatives ? As it was late, he said he would add no more.
Pendleton was followed by a young man of thirty years who resided in Richmond, who had already taken a prominent part in debate, whose arguments, enforced with logical precision, were delivered with modesty and were heard with profound respect, and whose fame, then in its early dawn, was destined in the course of a third of a century, during which he held the office of chief- justice of that court which he was now required to defend, to attain its greatest lustre. His opinions, as well from the ability with which they were maintained as from his subsequent career,
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have a living interest even in our own times. He had delibe- rately prepared himself to reply to the arguments of Mason, and followed that gentleman step by step. He said it was argued that the Federal courts will not determine the causes which may come before them with the same fairness and impartiality with which other courts decide. What are the reasons of this sup- position ? Do gentlemen draw them from the manner in which the judges are chosen, or the tenure of their office? What is it that makes us trust our judges? Their independence in office and their manner of appointment. Are not the judges of the Federal court chosen with as much wisdom as the judges of the State governments? Are they not equally, if not more inde- pendent ? If there be as much wisdom and knowledge in the United States as in a single State, shall we conclude that that wisdom and knowledge will not be equally exercised in the selec- tion of judges ? What are the subjects of Federal jurisdiction ? Let us examine each of them with the supposition that the same impartiality will be observed in those courts as in other courts, and then see if any mischief will arise from them.
With respect to their cognizance in all cases arising under the Constitution and the laws of the United States, the gentleman (Mason) observes that the laws of the United States being para- mount to the laws of the particular States, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject ? Does he under- stand it so? Can they make laws affecting the mode of trans- ferring property, or contracts, or claims between citizens of the same State? Can they go beyond their delegated powers? If they did exceed those powers, their acts would be considered by the judges beyond their jurisdiction and declared void. But, says the gentleman, the judiciary will annihilate the State courts. Does not every gentleman here know that the causes in our courts are more numerous than they can decide according to their present construction ? Are there any words in this Con- stitution which excludes the courts of the States from those cases which they now possess? Will any gentleman believe it ? 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 cognizance of? The State courts will not lose the jurisdiction of the causes
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which they now decide. They have a concurrence of jurisdic- tion with the Federal courts in those cases in which the latter have cognizance. How disgraceful is it, says the honorable gentleman, that the State courts cannot be trusted ? Does the Constitution take away their jurisdiction ? Is it not necessary that Federal courts should have cognizance of cases arising under the Constitution and laws of the United States? What is the purpose of a judiciary but to execute the laws in a peaceable, orderly manner, without shedding blood, or availing yourself of force? To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? The honorable gentleman objects to it be- cause the officers of government will be screened from merited pun- ishment by the Federal authority. The Federal sheriff, he says, will go into a poor man's house and beat him or abuse his family, and the Federal court will protect him. Is it necessary that officers should commit a trespass on the property or persons of those with whom they are to transact business? The injured man would trust to a tribunal in his neighborhood, and he would get ample redress. There is no clause in the Constitution which bars the individual injured from seeking redress in the State courts. He says that there is no instance of appeals as to fact in common law cases. The contrary is well known to be the case in this State. With respect to mills, roads, and other cases, appeals lie from the inferior to the superior courts as to fact as well as law. Is it a clear case that there can be no case in com- mon law in which an appeal as to fact would be necessary and proper? If an appeal in matters of fact could not be carried to the superior court, then it would result that such cases could not be tried before the inferior courts for fear of injurious and partial decisions.
Where, says Marshall, is the necessity of discriminating be- tween the three cases of chancery, admiralty, and common law ? Why not leave it to Congress ? Is it necessary for them wantonly to infringe your rights ? Have you anything to apprehend, when they can in no case abuse their power without rendering them- selves hateful to the people at large? Where power may be trusted, and there is no motive to abuse it, it seems to me to be as well to leave it undetermined as to fix it in the Constitution. With respect to disputes between a State and the citizens of
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another State, its jurisdiction has been decried with unusual vehemence. I hope, he said, that no gentleman will think that a State will be called at the bar of the Federal court. Is there no such case at present ? Are there not many cases in which the Legislature of Virginia is a party, and yet the State is not sued? It is not rational to suppose that the sovereign power shall be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. I con- tend this construction is warranted by the words. I see a diffi- culty in making a State a defendant, which does not prevent its being plaintiff. As to controversies between the citizens of one State and the citizens of another State, I should not use my own judgment were I to contend that it was necessary in all cases to bring such suits in a Federal court ; but cases may happen when it would be proper. It is asked, in the court of which State will the suit be instituted? In the court of the State wherein the defendant resides, and it will be determined by the laws of the State in which the contract was made. As to controversies be- tween a State and a foreign State, the previous consent of the parties is necessary ; and therefore, as the Federal court will decide, each party will acquiesce. The exclusion of trial by jury in this case, the gentleman (Mason) urged would prostrate our rights. Does the word court only mean the judges? Does not the determination of a jury necessarily lead to the judg- ment of the court? Is there anything here that gives the judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the courts of the facts. When a court has cognizance of facts, does it not follow that they can make enquiry by a jury? But it seems the right of challenging the jurors is not secured in this Constitution. Is this done in our own Constitution or by any provision of the English gov- ernment? Is it done by their Magna Charter or by their Bill of Rights? This privilege is founded on their laws. If we are secure in Virginia without mentioning it in our laws, why should not this security be found in the Federal court? As to the quit- rents in the Northern Neck, has he not acknowledged that there was no complete title? Was he not satisfied that the right of the legal representative of the proprietor did not exist at the time he mentioned ? If so, it cannot exist now. A law passed in 1782, which settles this subject. He says that poor men may
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be harassed by the representative of Lord Fairfax. If he has no right this cannot be done. If he has this right and comes to Virginia, what laws will this claim be determined by? By the laws of Virginia. By what tribunals will the claim be deter- mined ? By our own tribunals. After replying to some inci- dental objections which had been urged by Mason and Henry, Marshall concluded his speech, and was followed in a few words by Randolph, when the committee rose, and the House ad- journed.
On Saturday, the twenty-first of June, the House resolved itself into a committee, Wythe in the chair, the first and second sections of the third articles still under consideration. Grayson rose and reviewed the structure and the jurisdiction of the Federal judiciary at great length, and denounced its defects in a splendid oration, and was followed by Randolph at equal length in reply. At the close of Randolph's speech the House ad- journed.
On Monday, the twenty-third of June, the House again went into committee, Harrison in the chair, and the same sections still under consideration. Nicholas rose to suggest that the com- mittee now pass on to the next clause of the Constitution, but he was opposed by Henry, who made a handsome acknowledg- ment of the fairness and ability of Marshall, and replied to some of his arguments. He was succeeded by a member far advanced · in life, who had not as yet spoken in the committee, and who was not only held in high repute by his contemporaries, but deserves the favorable regard of posterity. For nearly the third of a century last past he had been engaged in the military service of his country. He was one of the oldest and most prominent mili- tary men in the Commonwealth. In the Indian wars from 1755 to nearly the beginning of the Revolution he had borne a con- spicuous part, and was often in command of the Virginia troops raised for the defence of the frontier. His large stature and great muscular strength, added to his experience in war, made him the terror of the Indians. On one occasion he was sent to South Carolina with the Virginia companies to aid in beating back the Indians. As early as 1756, when Washington went to Boston to consult General Shirley on a point of military etiquette, Colonel Adam Stephen was left in command of the military forces of the colony until his return. In 1763 the Governor of
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Virginia, when Stephen was in command of å levy of five hun- dred men to defend the frontiers against the Indians, spoke highly of his military capacity and courage. In 1776 he commanded the Fourth battalion of Virginia troops at Portsmouth, when he was appointed a brigadier general in the army of the United States. On retiring from his command in Portsmouth, a vale- dictory letter was addressed to him by his officers, who speak of him as the polite gentleman and the accomplished soldier ; and in his answer he mentioned the fact that " the present was his twelfth campaign. "226 In February, 1777, he was elected a major- general by Congress. In the battle of Brandywine he distin- guished himself by his valor, as on other important occasions. He had probably been a member of the House of Burgesses, and was returned from Berkeley to the March Convention of 1775, when he sustained the resolutions of Henry for putting the Col- ony into military array. In the following July he was also returned to the Convention, but from some informality in the return he lost his seat.227 A warm admirer of the Federal Con-
226 Virginia Gazette, September 20, 1776.
227 Journal of the Convention of July, 1775, page 7. Irving, in his Life of Washington, has several allusions to Stephen, but the best source of information is Sparks's Writings of Washington, which the reader may consult by referring to the name of Stephen in the index in the last volume. In the years 1775 and 1776, of the American Archives, are letters of Stephen. A letter of his heretofore quoted may be found in the Life of R. H. Lee, by his grandson.
Stephen died in August, 1791, in Berkeley county, and lies buried on the estate owned by the Hon. Charles J. Faulkner ; a rude stone marks the spot. He has left descendants, all of whom occupy respectable and honorable positions in the communities in which they reside. Letter of the Hon. C. J. Faulkner to Francis B. Jones, Esq., dated May 19, 1856. I am indebted to Mr. Jones for his great courtesy in assisting me in my inquiries concerning Stephen and other persons belonging to the history of the Valley of Virginia. It is believed that Stephen was born in what is now Berkeley county, though I think it questionable. He lived in Martinsburg in his latter days. The cause of his losing his seat in the Convention of 1775 was, that two districts of the county did not know that an election was to be held when Stephen was elected, and that Stephen, who was on election day parad- ing the militia, marched at their head to the polls, and was elected by their votes. See Kercheval's History of the Valley, pages 244, 245 ; also, Burke's History of Virginia, IV, 91 ; and Marshall's Life of Washington, revised edition, I, 157, 158.
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