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. II > Part 24
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Ajax Telamon of his party-or, to use his own more correct expression, of the faction to which he belonged? Where was the hero with his seven-fold shield-not of bull's hide, but of brass-prepared to prevent or punish this Trojan rape which he now sees meditated upon the Constitution of his country by a wicked faction ? Where was Hercules, that he did not crush this band of robbers that broke into the sanctuary of the Con- stitution ? Was he forgetful of his duty? Were his nerves unstrung? Or, was he the very leader of the band that broke down these constitutional ramparts ?"
After tracing in detail the history of the passage of the bill through the Senate, he continued:
"Various amendments were offered, some of which were admitted to be proper. But they were not received. One, indeed, proposed by a member from Connecticut, who was chairman of the committee, and was then hostile to the plan, did pass in the early stages of the bill; but on the third reading it was expunged. All amendments proposed by the minority were uniformly rejected by a steady, inflexible, and undeviating majority. I confess that I saw no passion, but I certainly did see great pertinacity; something like what the gentleman from Connecticut had termed a holding fast. No amendments were admitted; when offered, we were told no. You may get them introduced by a rider or supplementary bill, or in any way you please, but down this bill must go; it must be crammed down your throats. This was not the precise phrase, but such was the amount of what was said. I will say that not an argument was urged in favor of the bill-not a word to show the necessity or propriety of the change. Yet we are told that there was great dignity, great solemnity in its progress and passage !
"But there is something undignified in thus hastily repealing this law-in thus yielding ourselves to the fluctuations of public opinion! So we are told. But if there be blame, on whom does it fall? Not on us who respected the public opinion when this law was passed, and who still respect it; but on those who, in defiance of public opinion, passed this law after that public opinion had been decisively expressed. The revolution in pub- lic opinion had taken place before the introduction of this project; the people of the United States had determined to com - mit these affairs to new agents; already had the confidence of
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the people been transferred from their then rulers into other hands. After this exposition of the national will, and this new deposit of the national confidence, the gentlemen should have left untouched this important and delicate subject-a subject on which the people could not be reconciled to their views, even in the flood-tide of their power and influence; they should have forburne until agents, better acquainted with the national will, because more recently constituted its organs, had come into the government. This would have been more dignified than to seize the critical moment when power was passing from them to pass such a law as this. If there is error, it is our duty to cor- rect it; and the truth was that no law was ever more execrated by the public. Let it not be said, postpone the repeal till the next session. No; let us restore these gentlemen to private life who have accepted appointments under this law. This will be doing them greater justice than by keeping them in office another year, till the professional business which once attached to them is gone into other channels." 211
This speech, the technical part of which we have omitted, pro- duced a sensible effect on the body and on the public, and called forth a deliberate reply from Morris, which exhibited great ingenuity and afforded at its close a fine specimen of declama- tion; but he was unable to turn the edge of a single fact or argu- ment urged by Mason, and the speaker seemed more inclined to defend the reputation of the Federal party in relation to the act than the act itself. The question was taken on the 3d, and the bill founded on the resolution passed by a vote of sixteen to fifteen. 242
241 The best report of Mason's speech will be found in the small volume printed in Philadelphia by Bronson in 1802. But all the reports are synoptical, and convey but a feint impression of his logical vigor and of the fire of his eloquence. All pass over with a mere allusion that admirable part of his speech in which he portrayed the action of Virginia on a similar occasion.
242 As the ayes and noes will show who Mason's colleagues were in this great debate, I annex them :
AYES-Anderson, Baldwin, Bradley, Breckenridge, Brown, Cocke, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.
NOES-Chipman, Calhoun, Dayton, D. Foster, Hillhouse, Howard,
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On the real worth of the judiciary act of 1801 it is a delicate subject to pass an opinion. Great confidence ought unques- tionably to be placed in the judgment of the statesmen who repealed it and in the public opinion which sustained the repeal. With our present knowledge of the extent of our country and its unparalleled development in population and resources, the small number of the district judges and their meagre salaries seem almost insignificant. The act increased the number of judges to sixteen, and the cost of maintaining the system slightly exceeded thirty thousand dollars; and the propriety and even necessity of establishing Federal courts for the convenience of the people in the various sections of a thinly settled country should seem to be apparent. Even Mason stated of his own knowledge that his friend, Judge Innes, one of the old judges promoted to be one of the new, would be compelled to travel hundreds of miles through a region beset by Indians in the per- formance of his duties. And Mason knew the country, for he had lately travelled through it, had lost his baggage, which was stolen by the Indians, and had narrowly escaped a fight with the savages. When, too, we consider that direct taxes were then an important part of the Federal revenue, and that land titles might require to be settled in Federal courts, the expediency of an extended judiciary would appear to be obvious. The hos- tility which caused a repeal of the act was evidently founded as much on the circumstances of its progress and passage as of its expediency. One good result may have flowed from the repeal. - No political party has since attempted to perpetuate itself or to provide for its supporters by wholesale legislation on judicial subjects. 243
J. Mason, Morris, Ogden, Olcott, Ross, Sheafe, Tracy, Wells, and White.
Of these able men I knew personally but one-the venerable Hill- house-whose fame is almost lost in that of his son, the great dramatic poet of his country, whom I also knew, and who has passed away.
213 The judges appointed under the act were Richard Bassett, Egbert Benson, Benjamin Bourne, William Griffith, Samuel Hitchcock, B. P. Key, C. Magill, Jeremiah Smith, George Keith Taylor, William Tilgh- man, and Oliver Wolcott. On the 27th of January, 1So3, they presented to the Senate a memorial, in which they state that the law of 18or, under which they were appointed, had been repealed; that no new law
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While the bill to purchase a place of deposit near the mouth of the Mississippi was before the Senate, a series of resolutions on the same subject was introduced by Ross (of Pennsylvania). The mover was an opponent of the administration; and the obvious effect, if not the true design, of his resolutions was to embarrass the Executive in its action in pursuance of the bill which had received the sanction of the Senate. They set forth that the United States have an indisputable right to the navi- gation of the Mississippi and to a place of deposit on its banks; that the late infraction of their right?" is hostile to their interest and their honor; that it did not consist with the dignity and safety of the Union to hold so important a right by so frail a tenure; that it concerned the people of the West and the dignity and safety of the Union; that the United States obtain complete security for the full and peaceable enjoyment of their absolute right; that the President be anthorized to take immediate pos- session of such places on the said island of Orleans or elsewhere as he may deem proper, and to adopt such other means. of attaining the object as he might think expedient; that he be authorized to employ fifty thousand militia to be drafted from certain contiguous States, together with the whole military and naval forces of the United States, for effecting the objects above mentioned, and that the sum of five millions of dollars be appro- priated for the purpose. This was a most ingenious scheme for
has since passed assigning to them judicial functions; that they are judges of the United States, and entitled to their salaries during good behavior; and that they desire a review of the existing laws that their duties may be properly defined. The paper is marked by self-posses- sion and dignity. It was referred to a committee, of which Governor Morris was chairman, and which reported a resolution requesting the President of the United States to cause an information, in the nature of a quo warranto, to be filed by the Attorney-General against Richard Bassett, one of the petitioners, for the purpose of deciding judicially on their claims. The resolution was discussed fully, and was rejected by a vote of thirteen to fifteen. If the judges possessed the talents and the worth of George Keith Taylor, they would have been, and doubtless were, worthy of their stations. My love for the memory of Taylor leads me to wish that I could make a more pleasant mention of him.
2"Spain had ceded Louisiana to France without any allusion or acknowledgment of our right to a place of deposit, &c.
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defeating the policy of the administration. The resolutions plainly pointed to an immediate war with Spain and France; and while they would receive the unanimous support of the Federal party, they were calculated to excite the warmest sympathies of the Western and Southern States, on which the Government mainly depended for parliamentary support. The speech of Ross on moving them was highly imprudent and inflammatory ; and his speech was echoed by Governor Morris in a still more warlike tone. Breckenridge made a strong speech against the resolutions, and concluded by offering a substitute which left substantially any act of reprisals and the calling out of the militia at the discretion of the Executive, and which appropriated funds for the purpose. DeWitt Clinton then rose and made, perhaps, what was his maiden speech in the body, in which he admitted the importance of the right of deposit and the free navigation of the Mississippi; but demonstrated that the resolu- tions offered by Mr. Ross involved an immediate declaration of war, and the inexpediency of such a measure at that time. General James Jackson followed in a bold and sensible speech, in which he showed that the honor of the country, on which his opponents had laid such a stress, was the true interests of the country; and narrated with admirable effect the anecdote of Count D'Estaing, who, having been wounded at the attempted storm of Savannah, was visited in his chamber by Governor Rutledge and others, who told the Count that his own honor and the honor of France were concerned in his remaining and taking the city; when the Count mildly replied: "Gentlemen, if my honor is to be lost by not taking the city, it is lost already ; but I deem my honor to consist in the honor of my country, and that honor is my country's interest." Jackson was followed by Wells (of Delaware), who, in a speech in which sophistry was ingeniously mingled with sound argument and passionate declam- ation, was fierce for war. Anderson followed in reply to Wells, and when he closed Mason rose to speak. The subject of the Mississippi he was well qualified to discuss. He had spoken upon it more than once in the Assembly and in Congress, and he always regarded it, and now more than ever, as Virginia had no longer a direct interest in its decision, not as a local or party question, but on principles of the broadest statesmanship. But, unfortunately, he was indisposed, and stated in the outset that
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his physical condition would not suffer him to go as much at length into the discussion as he otherwise would have done. After a short preamble he said that he had heard in the debate many professions of confidence in the Executive. He was very glad to hear such unusual expressions of confidence from that quarter. However, it was entitled to its due weight-what that was he would not inquire; but this he would say, that this unex - pected ebullition of confidence went very much farther than he should be disposed to carry his confidence in any man or Presi- dent whatever. Gentlemen tell us that they are willing to entrust to the Executive the power of going to war or not at his dis- crétion. Wonderful, indeed, is this sudden disposition to confi- dence! Why do not gentlemen give away that which they have some authority or right to bestow? Who gave them the power to vest in any other authority than in Congress the right of declaring war? The framers of this Constitution had too much experience to entrust such a power to any individual; they early and wisely foresaw that though there might be men too virtuous to abuse such a power, it ought not to be entrusted to any; and nugatory would be the authority of the Senate if we could assume the right of transferring our constitutional functions to any man or set of men. It was a stretch of confidence which he would not trust to any President that ever lived or ever will live. He could not as one, without treason to the Constitution, con- sent even to relinquish the right of declaring war to any man or men beside Congress. 245
" We are told," he said, "that negotiation is not the course which is proper for us to pursue. But to this he should reply that such was the usage of all civilized nations; and however gentlemen might attempt to whittle away the strong ground taken by his friend from New York (Clinton), he had shown,
245 This argument was not answered in the debate, but it is not sound. The assent of Congress to a measure which it was obvious would lead to war, and which was to be carried into effect by arms, and the equipping of the President with men and money for the purpose, is in itself a declaration of war. If there was a precise formula on the sub- ject of a declaration of war, Mason's argument would be good; but there are as many ways of declaring war as there are for prosecuting the war when it is begun. The President was instructed to do a certain thing, peaceably if he could, but to do it at all events.
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in a manner not to be shaken, that negotiation, before a resort to the last scourge of nations, is the course most consistent with good policy as well as with universal practice. The gentleman from Pennsylvania had indeed told us that Great Britain had departed from that practice; unfortunately for Great Britain and the gentleman's argument, he told us at the same time that she had sustained a most serious injury by her injustice and precipi- tation. She went to war to seek restitution, and after fighting a while she left off, and forgot to ask the restitution for which she went to war. And this is the example held up for our imita- tion! Because Great Britain violated the laws of nations, we are called upon to do so too!
"We are also told that Great Britain commenced war during our Revolution against the Dutch without any previous notifica- tion; that she did the same in the late war with France, and in both cases seized on their ships in her harbors-that is, like a professional bully, she struck first, and then told them that she would fight them. And this is the gracious example held up to us.
"The merits of the different propositions consisted in this, that by the amendments we propose to seek the recourse of pacific nations-to follow up our own uniform practice; we pur- sue, in fact, the ordinary and rational course. The first resolu- tions go at once to the point of war. This was openly and fairly acknowledged by the gentleman from New York (Morris). The gentleman from Pennsylvania told us, indeed, that it is not war; it was only going and taking peaceable possession of New Orleans. He did not before think that the gentleman felt so little respect for the Senate, or estimated their understandings so much inferior to his own, as to call such measures an act of peace. How did the gentleman mean to go, and how take peaceable possession ? Would he march at the head of the posse comitatus ? No; he would march at the head of fifty thousand militia, and he would send forth the whole naval and regular force, armed and provided with military stores. He would enter their island, set fire to their warehouses, and bom- bard their city, desolate their farms and plantations, and, having swept all their habitations away, after wading through streams of blood, he would tell those who escaped destruction: We do not come here to make war upon you; we are a very moderate,
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tender-hearted kind of neighbors, and are come here barely to take peaceable possession of your territory! Why, sir, this is too naked not to be an insult to the understanding of a child.
"But the gentleman from New York (Morris) did not trifle with the Senate in such a style: he threw off the mask at once, and in a downright, manly way fairly told us that he liked war; that it was his favorite mode of negotiating between nations; that war gave dignity to the species; that it drew forth the most noble energies of humanity. That gentleman scorned to tell us that he wished to take peaceable possession. No. He could not snivel; his vast genius spurned huckstering; his mighty soul would not bear to be locked up in a petty warehouse at New Orleans; he was for war-terrible, glorious havoc! He tells you plainly that you are not only to recover your rights, but you must remove your neighbors' from their possessions, and repel those to whom they may transfer the soil; that Bonaparte's ambition is insatiable; that he will throw in colonies of French- men, who will settle on your frontier for thousands of miles round about (when he comes there); and he does not forget to tell you of the imminent dangers which threaten our good old friends, the English. He tells you that New Orleans is the lock, and you must seize the key and shut the door against this terrible Bonaparte, or he will come with his legions, and, as Gulliver served the Lilliputians, wash you off the map. Not content-in his great care for your honor and glory-as a statesman and a warrior, he turns prophet to oblige you (your safety in the pres- ent year, or the next, does not satisfy him); his vast mind, untrammelled by the ordinary progressions of chronology, looks over ages to come with a faculty bordering on omniscience, and conjures us to come forward and regulate the decrees of Provi- dence at ten thousand years' distance.
"We have been told that Spain had no right to cede Louisi- ana to France; that she had ceded to us the privilege of deposit, and had therefore no right to cede her territory without our con- sent. Are gentlemen disposed to wage war in support of this principle ? Because she has given us a little privilege-a mere indulgence on her territory-is she thereby constrained from doing anything forever with her immense possessions? No doubt, if the gentleman (Morris) were to be the negotiator on this occasion, he would say: You mean to cede New Orleans?
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No, gentlemen; I beg your pardon, you cannot cede that, for we want it ourselves; and as to the Floridas, it would be very indis- creet to cede them, as, in all human probability, we shall want them also in less than five hundred years from this day; and then, as to Louisiana, you surely could not think of that, for in something less than a thousand years, in the natural order of things, our population will advance to that place also. 246
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"If Spain has ceded those countries to France, the cession has been made with all the encumbrances and obligations to which it was subject by previous compact with us. Whether Bonaparte will execute these obligations with good faith, he could not say; but to say that Spain had no right to cede is a bold assertion indeed. The people of America will not go along with such doctrines, for they lead to ruin alone. We are also told that the power of the Chief Consul is so great that he puts up and pulls down all the nations of the Old World at discretion, and that he can do so with us. Yet we are told by the wonderful statesman who gives us this awful information that we must go to war with this maker and destroyer of governments. If, after the unceasing pursuit of empire and conquest-which is thus presented to us-we take possession of his territory, from the gentleman's own declarations, what are we to expect? Only that this wonderful man, who never abandons an object-who thinks his own and his nation's honor pledged to go through with whatever he undertakes-will next attack us? Does the gentle- man think that this terrible picture-which his warm imagination has drawn-is a conclusive argument for proceeding to that war which he recommends ?
"The Senate, Mr. President, at this moment presents a very extraordinary aspect; and, by those not acquainted with our political affairs, it would appear a political phenomenon. Here we see a number of people from the Eastern States and the sea- board filled with extreme solicitude for the interest and rights of
246 If Mason had survived twenty years he would have seen, not only the Floridas, but all Louisiana, belonging to the United States ; but his argument is honorable to him as showing that he thought the Ten Commandments were still binding, and that nations no more than indi- viduals should covet their neighbors' possessions. Had he survived six months he would have read and ratified the treaty of Paris, which ceded to the United States the territory of Louisiana.
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the Western and inland States; while the representatives of the Western people themselves appear to know nothing of this great danger, and to feel a full confidence in their government-the former declaring that the Western people are all ready for revolt and open to seduction; the latter ignorant of any such dispo. sition, and indignant at the disgrace which is thrown on their character. In their great loving kindness for the Western peo- ple, these new friends of theirs tell them that they are a simple people, who do not know what is good for them, and that they will kindly undertake to do this for them. From the contiguous States of South Carolina, Georgia, Tennessee, and Kentucky (those States from which the gentleman from Pennsylvania pro- poses to draw the militia), every member of this House is opposed to war; but from the East (and one can scarcely refrain from laughing to hear the all-important representatives of the State of Delaware, in particular), such is the passion for the wonderful or the absurd, there prevails the liveliest sensibility for the Western country."
The question was put on striking out the resolutions of Ross, and decided in the affirmative by a vote of fifteen to eleven; and the substitute of Breckenridge was then adopted by a unanimous vote-ascertained by ayes and noes.
The course of the Federal party on this occasion deserves severe censure. To force the nation into a war with France and Spain without a resort to negotiation was as unwise and impolitic as it was suicidal to those who proposed so rash an expedient. It was unwise, as the object in view might be accomplished-as it afterwards was-by the ordinary means of settling difficulties among nations; it was impolitic, as it committed the Federal party to the most violent measures which the Administration might be induced to adopt, and would thereby deprive that party of a legitimate ground of attack at the future stages of the proceedings; and it was suicidal, as the boisterous vehemence of their orators would be used argumentatively abroad in aid of those negotiations which it was their wish to embarrass, and as they had placed themselves, by their harangues, in the wrong before the country, and particularly before the very people whose rights and interests they assumed to defend against their own representatives, and whose influence they sought to win. It is a subject of congratulation that Mason and Nicholas-the
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senators from Virginia in Congress-took the ground in this debate which posterity, with one accord, pronounces to be just, honorable, and wise.
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