Elliot’s Debates: Volume 3
In Convention, Richmond, Thursday, June 19, 1788
Mr. GRAYSON, after recapitulating the dangers of losing the Mississippi, if the power of making treaties, as delineated in the Constitution, were granted, insisted, most strenuously, that the clause which the honorable gentleman had cited as a security against a dismemberment of the empire was no real security; because it related solely to the back lands claimed by the United States and different states. This clause was inserted for the purpose of enabling Congress to dispose of, and make all needful rules and regulations respecting, the territory, or other property, belonging to the United States, and to ascertain clearly that the claims of particular states, respecting territory, should not be prejudiced by the alteration of government, but be on the same footing as before; that it could not be construed to be a limitation of the power of making treaties. Its sole intention was to obviate all the doubts and disputes which existed, under the Confederation, concerning the western territory and other places in controversy in the United States. He defended his former position with respect to a particular law of nations. I insist, says he, that the law of nations is founded on particular laws of different nations. I have mentioned some instances: I will mention some more. It is the part of the laws of several Oriental nations to receive no ambassadors, and to burn their prisoners. It is a custom with the grand seignior to receive, but not to send ambassadors. It is a particular custom with him, in time of war with Russia, to put the Russian ambassador in the Seven Towers. But the worthy member said that it was odd there should be a particular law of nations. I beg leave to tell him that the United States are entering into a particular law of nations now. I do not deny the existence of a general law of nations; but I contend that, in different nations, there are certain laws or customs, regulating their conduct towards other nations, which are as permanently and immutably observed as the general law of nations. Of course there was a law of nations incident to the Confederation. Any person may renounce a right secured to him by any particular law or custom of a nation. If Congress have no right, by the law of nations, to give away a part of the empire, yet, by this compact, they may give it up. I look on that compact to be a part of the law of nations. The treaty of Munster formed a great part of the law of nations. How is the Scheldt given up? By that treaty, though contrary to the law of nations. Cannot Congress give the Mississippi also by treaty, though such cession would deprive us of a right to which, by the law of nations, we are inalienably and indefeasibly entitled? I lay it down as a principle that nations can, as well as individuals, renounce any particular right. Nations who inhabit on the sources of rivers have a right to navigate them, and go down, as well as the waters themselves.
Mr. GEORGE NICHOLAS again drew a parallel between the power of the king of Great Britain and that of Congress, with respect to making treaties. He contended that they were on the same foundation, and that every possible security which existed in the one instance was to be found in the other. To prove that there was no constitutional limit to the king’s power of making treaties, and that treaties, when once by him made, were the supreme law of the land, he quoted the following lines in Blackstone’s Commentaries, vol. i. page 257: “It is also the king’s prerogative to make treaties, leagues, and alliances, with foreign states and princes; for it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power; and then it is binding upon the whole community; and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul.” A further proof, says Mr. Nicholas, that there is no limitation in this respect, is afforded by what he adds: “And yet, lest this plenitude of authority should be abused, to the detriment of the public, the constitution has interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as, from criminal motives, advise or conclude any treaty which shall afterwards be judged to derogate from the honor and interest of the nation.” How does this apply to this Constitution? The President and Senate have the same power of making treaties; and when made, they are to have the same force and validity. They are to be the supreme law of the land here. This book shows us they are so in England.
Have we not seen, in America, that treaties were violated, though they are, in all countries, considered as the supreme law of the land? Was it not, therefore, necessary to declare, in explicit terms, that they should be so here? How, then, is this Constitution on a different footing from the government of Britain? The worthy member says, that they can make a treaty relinquishing our rights, and inflicting punishments; because all treaties are declared paramount to the constitutions and laws of the states. An attentive consideration of this will show the committee that they can do no such thing. The provision of the 6th article is, that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. They can, by this, make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province. It is sufficiently secured, because it only declares that, in pursuance of the powers given, they shall be the supreme law of the land, notwithstanding any thing in the constitution or laws of particular states.
The fact which he has adduced from the English history respecting the Russian ambassador, does not apply to this part of the Constitution. The arrest of that ambassador was an offence against the law of nations. There was no tribunal to punish it before. An act was therefore made to prevent such offences for the future; appointing a court to try offenders against it, and pointing out their punishment. That act acknowledges the arrest to have been a violation of the law of nations, and that it was a defect in their laws that no remedy had been provided against such violations before. I think it must appear, to the satisfaction of the committee, that this power is similar to what it is in England.
Mr. GEORGE MASON. Mr. Chairman, it is true that this is one of the greatest acts of sovereignty, and therefore ought to be most strongly guarded. The cession of such a power, without such checks and guards, cannot be justified: yet I acknowledge such a power must rest somewhere. It is so in all governments. If, in the course of an unsuccessful war, we should be compelled to give up part of our territories, or undergo subjugation if the general government could not make a treaty to give up such a part for the preservation of the residue, the government itself, and consequently the rights of the people, must fall. Such a power must, therefore, rest somewhere. For ray own part, I never heard it denied that such a power must be vested in the government. Our complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system. It is more guarded in England. Will any gentleman undertake to say that the king, by his prerogative, can dismember the British empire? Could the king give Portsmouth to France? He could not do this without an express act of Parliamentwithout the consent of the legislature in all its branches. There are other things which the king cannot do, which may be done by the President and Senate in this case. Could the king, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary indefeasible title? This would require an express act of Parliament.
Though the king can make treaties, yet he cannot make a treaty contrary to the constitution of his country. Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable. Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better conditionin a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire.
Will any gentleman say that they may not make a treaty, whereby the subjects of France, England, and other powers, may troy what lands they please in this country? This would violate those principles which we have received from the mother country. The indiscriminate admission of all foreigners to the first rights of citizenship, without any permanent security for their attachment to the country, is repugnant to every principle of prudence and good policy. The President and Senate can make any treaty whatsoever. We wish not to refuse, but to guard, this power, as it is done in England. The empire there cannot be dismembered without the consent of the national Parliament. We wish an express and explicit declaration, in that paper, that the power which can make other treaties cannot, without the consent of the national Parliamentthe national legislaturedismember the empire. The Senate alone ought not to have this power; much less ought a few states to have it. No treaty to dismember the empire ought to be made without the consent of three fourths of the legislature in all its branches. Nor ought such a treaty to be made but in case of the most urgent and unavoidable necessity. When such necessity exists, there is no doubt but there will be a general and uniform vote of the Continental Parliament.
Mr. CORBIN largely expatiated on the propriety of vesting this power in the general government, in the manner proposed by the plan of the Convention. He also contended that the empire could not be dismembered without the consent of the part dismembered. To obviate the force of the observations made by an honorable gentleman respecting the relinquishment of the Scheldt, he adduced the late complaints and efforts of the emperor of Germany respecting that river. He insisted that no part of the Constitution was less exceptionable than this. If, says he, there be any sound part in this Constitution, it is in this clause. The representatives are excluded from interposing in making treaties, because large popular assemblies are very improper to transact such business, from the impossibility of their acting with sufficient secrecy, despatch, and decision, which can only be found in small bodies, and because such numerous bodies are ever subject to factions and party animosities. It would be dangerous to give this power to the President alone, as the concession of such power to one individual is repugnant to republican principles. It is, therefore, given to the President and the Senate (who represent the states in their individual capacities) conjointly. In this it differs from every government we know. It steers with admirable dexterity between the two extremes, neither leaving it to the executive, as in most other governments, nor to the legislative, which would too much retard such negotiation.
The honorable gentleman said that treaties are not the supreme law of the land in England. My honorable friend proved the contrary by the Commentaries of Blackstone. Let me confirm it by a circumstance fresh in the memory of every body. When the treaty was made by us with England, it was disapproved of by the English Parliament, and the administration was turned out: yet the treaty was good. Does not this prove that it was binding on the nation, and that the king has such a power? What other proof do gentlemen wish? In England, it is a maxim that the king can do no wrong, yet they have sufficient responsibility, as the ministry can do wrong; for if they advise him to make a treaty derogatory to the honor and interest of the nation, they do it at the risk of their heads. If the king were to make such a treaty himself, contrary to the advice of his ministry, an honest or prudent minister would resign. The President of the United States is responsible in person himself, as well as the senators.
But, say gentlemen, all treaties made under this Constitution are to be the supreme law of nations; that is, in their way of construction, paramount to the Constitution itself, and the laws of Congress. It is as clear as that two and two make four, that the treaties made are to be binding on the states only. Is it not necessary that they should be binding on the states? Fatal experience has proved that treaties would never be complied with, if their observance depended on the will of the states; and the consequences would be constant war. For if any one state could counteract any treaty, how could the United States avoid hostility with foreign nations? Do not gentlemen see the infinite dangers that would result from it, if a small part of the community could drag the whole confederacy into war?
The honorable gentleman on the other side tells us that this doctrine is not founded, because, in England, it is declared that the consent of Parliament is necessary. Had the honorable gentleman used his usual discernment and penetration, he would see the difference between a commercial treaty and other treaties. A commercial treaty must be submitted to the consideration of Parliament, because such treaties will render it necessary to alter some laws, add new clauses to some, and repeal others. If this be not done, the treaty is void, quoad hoc. The Mississippi cannot be dismembered but in two waysby a common treaty, or a commercial treaty. If the interest of Congress will lead them to yield it by the first, the law of nations would justify the people of Kentucky to resist, and the cession would be nugatory. It cannot, then, be surrendered by a common treaty, Can it be done by a commercial treaty? If it should, the consent of the House of Representatives would be requisite, because of the correspondent alterations that must be made in the laws.[Here Mr. Corbin illustrated his position by reading the last clause of the treaty with France, which gives certain commercial privileges to the subjects of France; to give full effect to which, certain correspondent alterations were necessary in the commercial regulations.]
This, continues he, secures legislative interference. Some of the most extraordinary calculations that ever were made have been adduced to prove that the navigation of the Mississippi is on a worse ground than it was before. We are told that five states can make a treaty. This is on a supposition that the senators from the other states will be absent, which is wild and extravagant. On this ground, three states can prevent it; and if Kentucky become a state, two other states, with it, can prevent the making such a treaty. I wish not to assert, but to prove. Suppose there be fourteen members, and the members from Kentucky be of the number. Two thirds, which are ten, are necessary to make a treaty. Three members, together with the two members from Kentucky, will be sufficient to prevent its being made, But suppose all the other states to be present, (which is the fair conclusion, for it is fair to conclude that men will be attentive to their own interest;) what would be the consequence? There would be twenty-eight; two thirds of which are nineteen, which is one member more than the senators of nine states; so that, in such a case, ten states must concur in the treaty; whereas, by the old Confederation, only nine states were necessary. I defy any man to confute this doctrine. The argument of gentlemen is therefore disingenuous. I am more forcibly led to this conclusion when I hear gentlemen go to barbarous nations to adduce proofs of the requisites of a social government.
Mr. HENRY. Mr. Chairman, this great national concern is handled in a manner quite new to me. When arguments are used which are calculated in their nature to mislead men,when I reflect on the subject, I dread that our rights are about to be given away, though I may possibly be mistaken. I said yesterday, and not without thinking much on the subject, that my mind would be at ease were we on the same grounds, in this respect, as the English are. Gentlemen think that Great Britain was adduced by me, in this instance, unfortunately for myself, because the learned Judge Blackstone says that treaties are binding on the nation, and the king can make treaties. That learned judge says there is one thing which operates as a guard. That thing we have not in this paperit is responsibility. He tells you that the minister who will sacrifice the interest of the nation is subject to parliamentary impeachment. This has been ever found to be effectual. But I beg gentlemen to consider the American impeachment. What is it? It is a mere shama mere farce. When they do any thing derogatory to the honor or interest of their country, they are to try themselves. Is it so in England? The history of that country shows that they have blocks and gibbets. The violators of the public interest have been tried justly and impartially, and perished by those necessary instruments of justice. Can there be any security where offenders mutually try one another? I hope gentlemen will consider the necessity of amendment in this clause.
We are told that the state rights are preserved. Suppose the state right to territory be preserved; I ask and demand, How do the rights of persons stand, when they have power to make any treaty, and that treaty is paramount to constitutions, laws, and every thing? When a person shall be treated in the most horrid manner, and most cruelly and inhumanly tortured, will the security of territorial rights grant him redress? Suppose an unusual punishment in consequence of an arrest similar to that of the Russian ambassador; can it be said to be contrary to the state rights?
I might go on in this discrimination; but it is too obvious that the security of territory is no security of individual safety. I ask, How are the state rights, individual rights, and national rights, secured? Not as in England; for the authority quoted from Blackstone would, if stated right, prove, in a thousand instances, that, if the king of England attempted to take away the rights of individuals, the law would stand against him. The acts of Parliament would stand in his way. The bill and declaration of rights would be against him. The common law is fortified by the bill of rights. The rights of the people cannot be destroyed, even by the paramount operation of the law of nations, as the case of the Russian ambassador evinces. If you look for a similar security in the paper on your table, you look in vain. That paper is defective without such a declaration of rights. It is unbounded without such restrictions. If the Constitution be paramount, how are the constitutions and laws of the states to stand? Their operation will be totally controlled by it; for it is paramount to every thing, unless you can show some guard against it. The rights of persons are exposed as it stands now.
The calculation of the honorable gentleman (Mr. Corbin) was wrong. I am sure he spoke from the best of his recollection, when he referred to our treaty of peace with Great Britain, and said that it was binding on the nation, though disapproved of by Parliament. Did not an act of Parliament pass, acknowledging the independence of America? If the king of England wished to dismember the empire, would he dare to attempt it without the advice of Parliament? The most hardy minister would not dare to advise him to attempt it without a previous consultation of Parliament. No cession of territory is binding on the nation unless it be fortified by an act of Parliament. Will it be so in your American government? No. They will tell you that they are omnipotent as to this point.
We are so used to speak of enormity of powers, that we are familiarized with it. To me this power appears still destructive; for they can make any treaty. If Congress forbears to exercise it, you may thank them; but they may exercise it if they please, and as they please. They have a right, from the paramount power given them, to do so. Will the gentleman say that this power is paramount to the state laws only? Is it not paramount to the Constitution and every thing? Can any thing be paramount to what is paramount? Will not the laws of Congress be binding on Congress, as well as on any particular state? Will they not be bound by their own acts? The worthy gentleman must seethe impropriety of his assertion. To render this safe, I conceive we must adopt my honorable friend’s amendment. The component part of this supreme power are the President, senators, and House of Representatives. The latter is the most material part. They ought to interpose in the formation of treaties. When their consent is necessary, there will be a certainty of attending to the public interests.
Mr. Henry then contended that there was real responsibility in the British government, and sufficient security arising from the common law, declaration of rights, &c.; whereas, in this government, there was no barrier to stop their mad career. He hoped to obtain the amendments which his honorable friend had proposed.
Mr. MADISON. Mr. Chairman, I am persuaded that, when this power comes to be thoroughly and candidly viewed, it will be found right and proper. As to its extent, perhaps it will be satisfactory to the committee that the power is, precisely, in the new Constitution as it is in the Confederation. In the existing confederacy, Congress are authorized indefinitely to make treaties. Many of the states have recognized the treaties of Congress to be the supreme law of the land. Acts have passed, within a year, declaring this to be the case. I have seen many of them. Does it follow, because this power is given to Congress, that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.
One objection against the amendment proposed is this, that, by implication, it would give power to the legislative authority to dismember the empirea power that ought not to be given, but by the necessity that would force assent from every man. I think it rests on the safest foundation as it is. The object of treaties is the regulation of intercourse with foreign nations, and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might, and probably would, be defective. They might be restrained, by such a definition, from exercising the authority where it would be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise.
It is to be presumed that, in transactions with foreign countries, those who regulate them will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country? Would it not be considered as a dangerous principle in the British government were the king to have the same power in internal regulations as he has in the external business of treaties? Yet as, among other reasons, it is natural to suppose he will prefer the interest of his own to that of another country, it is thought proper to give him this external power of making treaties. This distinction is well worthy the consideration of gentlemen. I think the argument of the gentleman who restrained the supremacy of these to the laws of particular states, and not to Congress, is rational. Here the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme. If it does not supersede their existing laws, as far as they contravene its operation, it cannot be of any effect. To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.
Suppose the king of Great Britain should make a treaty with France, where he had a constitutional right; if the treaty should require an internal regulation, and the Parliament should make a law to that effect, that law would be binding on the one, though not on the other nation. Suppose there should be a violation of right by the exercise of this power by the President and Senate; if there was apparent merit in it, it would be binding on the people; for where there is a power for any particular purpose, it must supersede what may oppose it, or else it can be no power. For instance, where there is a power of declaring wary that power, as to declaring war, supersedes every thing. This would be an unfortunate case, should it happen; but should it happen, there is a remedy; and there being a remedy, they will be restrained against abuses.
But let us compare the responsibility in this government to that of the British government. If there be an abuse of this royal prerogative, the minister who advises him is liable to impeachment. This is the only restraint on the sovereign. Now, sir, is not the minister of the United States under restraint? Who is the minister? The President himself, who is liable to impeachment. He is responsible in person. But for the abuse of the power of the king, the responsibility is in his advisers. Suppose the Constitution had said, that this minister alone could make treaties, and, when he violated the interest of the nation, he would be impeached by the Senate; then the comparison would hold good between the two governments. But is there not an additional security by adding to him the representatives and guardians of the political interest of the states? If he should seduce a part of the Senate to a participation in his crimes, those who were not seduced would pronounce sentence against him; and there is this supplementary security, that he may be convicted and punished afterwards, when other members come into the Senate, one third being excluded every second year; so that there is a twofold securitythe security of impeachment and conviction by those senators that may be innocent, should no more than one third be engaged with the President in the plot; and should there be more of them engaged in it, he may be tried and convicted by the succeeding senators, and the upright senators who were in the Senate before.
As to the case of the Russian ambassador, I shall say nothing. It is as inapplicable as many other quotations made by the gentleman. I conceive that, as far as the bills of rights in the states do not express ally thing foreign to the nature of such things, and express fundamental principles essential to liberty, and those privileges which are declared necessary to all free people, these rights are not encroached on by this government. [Mr. Madison added other remarks. which could not be heard.]
Mr. CORBIN begged leave to explain what he had said. He acknowledged that an act of Parliament passed, acknowledging the independence of America: but though there was nothing in that act respecting the Newfoundland fishery, and we were, by the treaty, to enjoy a right to that fishery unmolested, yet that part of the treaty was binding on the nation.
After some desultory conversation, concerning the mode of considering the judiciary, the 1st and 2d sections of the 3d article were read.
Mr. PENDLETON. Mr. Chairman, on a former occasion, when I was considering the government at large, I mentioned the necessity of making a judiciary an essential part of the government. It is necessary, in order to arrest the executive arm, prevent arbitrary punishments, and give a fair trial, that the innocent may be guarded, and the guilty brought to just punishment, and that honesty and industry be protected, and injustice and fraud be prevented. Taking it for granted, then, that a judiciary is necessary, the power of that judiciary must be coextensive with the legislative power, and reach to all parts of society intended to be governed. They must be so arranged, that there must be some court which shall be the central point of their operations; and because cause all the business cannot be done in that part, there must be inferior courts to carry it on. The first clause contains an arrangement of the courtsone supreme, and such inferior as Congress may ordain and establish. This seems to me to be proper. Congress must be the judges, and may find reasons to change and vary them as experience shall dictate. It is, therefore, not only improper, but exceedingly inconvenient, to fix the arrangement in the Constitution itself, and not leave it to laws which may be changed according to circumstances. I think it highly probable that their first experiment will be, to appoint the state courts to have the inferior federal jurisdiction, because it would be best calculated to give general satisfaction, and answer economical purposes; since a small additional salary may in that case suffice, instead of competent provision for the judges. But even this eligible mode experience may furnish powerful reasons for changing, and a power to make such changes ought to rest with Congress. This clause also secures an important pointthe independency of the judges, both as to tenure of offices and fixing of salary. I wish the restraint had been applied to increase as well as diminution.
The 2d section points out the subjects of their jurisdiction.
11. Cases arising under the Constitution.
12. Cases arising under the laws of the federal legislature.
13. Cases arising under treaties made by them.
14. All cases affecting ambassadors, ministers, and consuls.
15. All cases of maritime or admiralty jurisdiction.
16. Controversies wherein the United States shall be a party.
17. Controversies between two or more states.
18. Controversies between a state and citizens of another state.
19. Controversies between citizens of different states.
10. Controversies between citizens of the same state, claiming lands under grants of different states.
11. Controversies between a state, or its citizens, and foreign states, citizens, or subjects.
Without entering into a distinction of all its parts, I believe it will be found that they are all cases of general and not local concern. The necessity and propriety of a federal jurisdiction, in all such cases, must strike every gentleman.
The next clause settles the original jurisdiction of the Supreme Court, confining it to two casesthat of ambassadors, ministers, and consuls, and those in which a state shall be a party. It excludes its original jurisdiction in all other cases. But it appears to me that it will not restrain Congress from regulating even these, so as to permit foreign ambassadors to sue in the inferior courts, or even to compel them to do so, where their causes may be trivial, or they have no reason to expect a partial trial. Notwithstanding this jurisdiction is given to the Supreme Court, yet Congress may go further by their laws, so as to exclude its original jurisdiction, by limiting the cases wherein it shall be exercised. They may require some satisfactory evidence that the party could not expect a fair trial in the inferior court. I am struck with this view, from considering that the legislature is not excluded, by the general jurisdiction in the Constitution, from regulating it, to accommodate the convenience of the people. Yet the legislature cannot extend its original jurisdiction, which is limited to these cases only.
The next branch brings me to the appellate jurisdiction. And first, I say it is proper and necessary, in all free governments, to allow appeals, under certain restrictions, in order to prevent injustice by correcting the erroneous decisions of local subordinate tribunals, and introduce uniformity in decision. The appellate jurisdiction is, therefore, undoubtedly proper, and would not have been objected to if they had not introduced, unfortunately, in this clause, the words “both as to law and fact.” Though I dread no danger, I wish these words had been buried in oblivion. If they had, it would have silenced the greatest objections against the section. I will give my free and candid sentiments on it. We find them followed by words 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 they may think conducive to the public convenience.
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 together, and then decrees according to equity. This must be unexceptionable to every body. 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 determined 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 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; it either admits or rejects 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 judgment 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 appeals from inferior courts of common law, where the superior court can even consider facts incidentally. I feel the danger, 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 which I have now stated; and that it is the practice must be admitted. The appeals may be limited to a certain sum. I make no doubt it will be so. You cannot prevent appeals without great inconveniences; but Congress can prevent that dreadful oppression which would enable many men to have a trial in the federal court, which is ruinous. There is a power which may be considered as a great security. The power of making what regulations and exceptions in appeals they may think proper may be so contrived as to render appeals, as to law and fact, proper, and perfectly inoffensive. How will this power be exercised? If I thought there was a possibility of danger, I should be alarmed.
But when I consider who this Congress are,that they are the representatives of thirteen states, (which may become fourteen or fifteen, or a much greater number of states,) who cannot be interested, in the most remote degree, to subject their citizens to oppressions of that dangerous kind, but will feel the same inclination to guard their citizens from them, I am not alarmed. I consider them as secured from it by the arrangement of these courts by Congress. To carry the citizens a great distance from their respective states can be of no advantage, but a great hardship to every state, except that wherein the seat of government may be. I conceive it probable that they will, as far as they may consistently with the national good, confine these cases. But when I cast my eyes to the Southern and Eastern States, every one of which is at a greater distance than we are, I cannot entertain a doubt but what this point will be perfectly secure. Every state being concerned almost equally, we have sufficient security that, when they come to organize the Supreme Court, they will regulate it so as to exclude this danger.
The fourth branch secures two important points in criminal cases1st, that the trial shall be by jury; 2d, that it shall be in the state where the offence is committed. It does not point out where it shall be within the state, or the more exact minutiæ respecting it; but laws will be made by which it will be regulated fully and minutely. I cannot conceive what motives they can have, in forming these trials, to render them oppressive. We have this securitythat our citizens shall not be carried out of the state, and that no other trial can be substituted for that by jury.[Mr. Pendleton made many other remarks; but he spoke too low to be comprehended distinctly.]
Mr. GEORGE MASON. Mr. Chairman, I had some hopes that the candor and reason of the warmest friends of this Constitution would have led them to point out objections so important. They must occur, more or less, to the mind of every one. It is with great reluctance I speak of this department, as it lies out of my line. I should not tell my sentiments upon it, did I not conceive it to be so constructed as to destroy the dearest rights of the community. After having read the first section, Mr. Mason asked, What is there left to the state courts? Will any gentleman be pleased, candidly, fairly, and without sophistry, to show us what remains? There is no limitation. It goes to every thing. The inferior courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please. Read the 2d section, and contemplate attentively the extent of the jurisdiction of these courts, and consider if there be any limits to it.
I am greatly mistaken if there be any limitation whatsoever, with respect to the nature or jurisdiction of these courts. If there be any limits, they must be contained in one of the clauses of this section; and I believe, on a dispassionate discussion, it will be found that there is none of any check. All the laws of the United States are paramount to the laws and constitution of any single state. “The judicial power shall extend to all cases in law and equity arising under this Constitution.” What objects will not this expression extend to? Such laws may be formed as will go to every object of private property. When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws will operate. They are to modify their own courts, and you can make no state law to counteract them. The discrimination between their judicial power, and that of the states, exists, therefore, but in name. To what disgraceful and dangerous length does the principle of this go! For if your state judiciaries are not to be trusted with the administration of common justice, and decision of disputes respecting property between man and man, much less ought the state governments to be trusted with power of legislation. The principle itself goes to the destruction of the legislation of the states, whether or not it was intended. As to my own opinion, I most religiously and conscientiously believe that it was intended, though I am not absolutely certain. But I think it will destroy the state governments, whatever may have been the intention. There are many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable; but I hope there are many in this Convention of a different opinion, and who see their political happiness resting on their state governments. I know, from my own knowledge, many worthy gentlemen of the former opinion.[Here Mr. Madison interrupted Mr. Mason, and demanded an unequivocal explanation. As these insinuations might create a belief that every member of the late federal Convention was of that opinion, he wished him to tell who the gentlemen were to whom he alluded.]
Mr. MASON then replied, I shall never refuse to explain myself. It is notorious that this is a prevailing principle. It was at least the opinion of many gentlemen in Convention, and 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, expressed himself against it; neither did I ever hear any of the delegates from this state advocate it.
Mr. MADISON declared himself satisfied with this, unless the committee thought themselves entitled to ask a further explanation.
After some desultory remarks, Mr. 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 description of the judiciary involves the most extensive jurisdiction. Its cognizance, in all cases arising under the 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 which ought to be given them. I also admit that they ought to have judicial cognizance in all cases affecting ambassadors, foreign ministers and consuls, as well as in cases of maritime jurisdiction. There is an additional reason now to give them this last power; because Congress, besides the general powers, are about to get that; of regulating commerce with foreign nations. This is a power which existed before, and is a proper subject of federal 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 cannot 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. Unless this was the case, the suit must be brought and decided in one or the other state, under whose grant the lands are claimed, which would be injurious, as the decision must be consistent with the grant.
The last clause is still more improper. To give them cognizance in disputes between a state and the citizens thereof, is utterly inconsistent with reason or good policy.
Here Mr. NICHOLAS arose, and informed Mr. Mason that his interpretation of this part was not warranted by the words.
Mr. 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 impaired much from his age, he would not insist on that interpretation. He then proceeded: Give me leave 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. If I am mistaken, I will retract. “All cases in law and equity arising under this Constitution, and the laws of the United States,” take in all the officers of the government. They comprehend all those who act as collectors of taxes, excisemen, &c. 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? We know the difficulty we are put in by our own courts, and how hard it is to bring officers to justice even in them. If any of the federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton brutality to a man’s wife or daughter, where is this man to get relief? If you suppose in the inferior courts, they are not appointed by the states. They are not men in whom the community can place confidence. It will be decided by federal judges. Even suppose the poor man should 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 here 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 could exclude appeals in those cases. But why not discriminate as to matters of fact with respect to common-law controversies? The honorable gentleman has allowed 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 before the committee an amendment, which I think convenient, easy, and proper.[Here Mr. Mason proposed an alteration nearly the same as the first part of the fourteenth amendment recommended by the Convention, which see at the conclusion.]
Thus, sir, said Mr. Mason, after limiting the cases in which the federal judiciary could interpose, I would confine the appellate jurisdiction to matters of law only, in common-law controversies.
It appears to me that this will remove oppressions, and answer every purpose of an appellate power.
A discrimination arises between common-law trials and trials in courts of equity and admiralty. In these two last, depositions are committed to record, and therefore, on an appeal, the whole fact goes up; the equity of the whole case, comprehending fact and law, is considered, and no new evidence requisite. Is it so in courts of common law? There evidence is only given viva voce. I know not a single case where there is an appeal of fact as to common law. But I may be mistaken. Where there is an appeal from an inferior to a superior court, with respect to matters of fact, a new witness may be introduced, who is perhaps suborned by the other party, a thousand miles from the place where the first trial was had. These are some of the inconveniences and insurmountable objections against this general power being given to the federal courts. Gentlemen will perhaps say there will be no occasion to carry up the evidence by viva voce testimony, because Congress may order it to be committed to writing, and transmitted in that manner with the rest of the record. It is true they may, but it is as true that they may not. But suppose they do; little conversant as I am in this subject, I know there is a groat difference between viva voce evidence given at the bar, and testimony given in writing. I leave it to gentlemen more conversant in these matters to discuss it. They are also to have cognizance in controversies to which the United States shall be a party. This power is superadded, that there might be no doubt, and that all cases arising under the government might be brought before the federal court. Gentlemen will not, I presume, deny that all revenue and excise controversies, and all proceedings relative to the duties of the officers of government, from the highest to the lowest, may and must be brought by these means to the federal courts; in the first instance, to the inferior federal court, and afterwards to the superior court. Every fact proved with respect to these, in the court below, may be revived in the superior court. But this appellate jurisdiction is to be under the regulations of Congress. What these regulations may be, God only knows.
Their jurisdiction further extends to controversies 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? Is it suspected that they would enforce the payment if unjust, or refuse to enforce it if just? The very idea is ridiculous. What! carry me a thousand miles from homefrom my family and businessto where, perhaps, it will be impossible for me to prove that I paid it? Perhaps I have a respectable witness who saw me pay the money; but I must carry him one thousand miles to prove it, or be compelled to pay it again. Is there any necessity for this power? It ought to have no unnecessary or dangerous power. Why should the federal courts have this cognizance? Is it because one lives on one side of the Potomac, and the other on the other? Suppose I have your bond for a thousand pounds: if I have any wish to harass you, or if I be of a litigious disposition, I have only to assign it to a gentleman in Maryland. This assignment will involve you in trouble and expense. What effect will this power have between British creditors and the citizens of this state? This is a ground on which I shall speak with confidence. Every one, 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. Let me be put right if I be mistaken; but there is not, in my opinion, a single British creditor but can bring his debtors to the federal court.
There are a thousand instances where debts have been paid, and yet must, by this appellate cognizance, be paid again. Are these imaginary cases? Are they only possible cases, or are they certain and inevitable? “To controversies between a state and the citizens of another state.” How will their jurisdiction in this case do? Let gentlemen look at 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 this state 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 private offender? Will the states undergo this mortification? I think this power perfectly unnecessary. But let us pursue this subject farther. 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 could 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 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 itthat 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? Where will you find a parallel regulation? 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 court. Is this the case in any other country? Are not men obliged to stand by the laws of the country where the disputes are? This is an innovation which is utterly unprecedented and unheard-of. Cannot we trust the state courts with disputes between a Frenchman, or an Englishman, and a citizen; or with disputes between two Frenchmen? This is disgraceful; it will annihilate your state judiciary: it will prostrate your legislature.
Thus, sir, it appears to me that the greater part of these powers are unnecessary, and dangerous, as tending to impair, and ultimately destroy, the state judiciaries, and, by the same principle, the legislation of the state governments. To render it safe, there must be an amendment, such as I have pointed out. After mentioning the original jurisdiction of the Supreme Court, which extends to but three cases, it gives it appellate jurisdiction, in all 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 these. I say that, in my opinion, they 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 contradistinction from a jury. I think the court are to be the judges of this. The judges on the bench are to be judges of fact and law, with such exceptions, &c., as Congress shall make. Now, give me leave to ask, Is not a jury excluded absolutely? By way of illustration, were Congress to say that a jury, instead of a court, should judge the fact, will not the court be still judges of the fact consistently with this Constitution? Congress may make such a regulation, or may not. But suppose they do; what sort of a jury would they have in the ten miles square? I would rather, a thousand times, be tried by a court than by such a jury. This great palladium of national safety, which is secured to us by our own government, will be taken from us in those courts; or, if it be reserved, it will be but in name, and not in substance. In the government of Virginia, we have secured an impartial jury of the vicinage. We can except to jurors, and peremptorily challenge them in criminal trials. If I be tried in the federal court for a crime which may affect my life, have I a right of challenging or excepting to the jury? Have not the best men suffered by weak and partial juries? This sacred right ought, therefore, to be secured. I dread the ruin that will be brought on 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 part will be obliged, by the operation of this power, to pay the quitrent of their lands. Whatever other gentlemen may think, I consider this as 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. Let gentlemen consider my public and private character. To these I wish gentlemen to appeal for an interpretation 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 quitrents 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 his whole property. As Lord Fairfax’s title was indisputably good, and as treaties are to be the supreme law of the laud, will not his representatives be able to recover all in the federal court? How will gentlemen like to pay an additional tax on lands in the Northern Neck? This the operation of this system will compel them to do. They now are subject to the same tax that other citizens are; and if the quitrents be recovered in the federal court, they are 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, who is injured or dispossessed unjustly, get a remedy? Is he to go to the federal court, seven or eight hundred miles? He might as well give his claim up. He may grumble, but, finding no relief, he will be contented.
Again, all that tract of country between the Blue Ridge and the Alleghany Mountains will be claimed, and probably recovered in the federal court, from the present possessors, by those companies who 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 with respect to ex post facto laws? We have not only confirmed the title of those who made the contract, 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 was not paid at all. Again, the great Indiana purchase, which was made to the westward, will, by this judicial power, be rendered a cause of dispute. The possessors may be ejected from those lands. That company paid a consideration of ten thousand pounds to the crown, before the lands were taken up. I have heard gentlemen of the law say (and I believe it is right) that, after the consideration was paid to the crown, the purchase was legally made, and ought to be valid. That company may come in, and show that they have paid the money, and have a full right to the land. Of the Indiana company I need not say much. It is well known that their claims will be brought before these courts. Three or four counties are settled on the land to which that company claims a title, and have long enjoyed it peaceably. All these claims before those courts, if they succeed, will introduce a scene of distress and confusion never heard of before. Our peasants will be, like those mentioned by Virgil, reduced to ruin and misery, driven from their farms, and obliged to leave their country:
“Nos patriam fugimus, et dulcia linquimus arva.”
Having mentioned these things, give me leave to submit an amendment, which I think would be proper and safe, and would render our citizens secure in their possessions justly held. I mean, sir, “that the judicial power shall extend to no case where 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 disputes between persons claiming lands under grants of different states.” In these cases, there is an obvious necessity for giving it a retrospective power. I have laid before you my idea on the subject, and expressed my fears, which I most conscientiously believe to be well founded.
Mr. MADISON. Mr. Chairman, the honorable gentleman having persuaded himself that it was calculated to destroy the state governments, and to dispossess of their property so great a proportion of this commonwealth, I am not surprised at the opposition he has made. But, being equally persuaded that his fears are groundless, I will endeavor to refute his objections where they do not appear to me to be well founded. I shall be candid in my remarks. I acknowledge that this part does not stand in that form which would be freest from objection. It might be better expressed.
But, at the same time, truth obliges me to put a fair and liberal interpretation upon the words. I believe the general government will do what is for the interest of the United States; because they have no substantial reason or inducement to violate their duty, nor are they warranted by this part of the plan to commit the oppressions he dreads. The general policy of that clause is to prevent all occasions of having disputes with foreign powers, to prevent disputes between different states, and remedy partial decisions. I believe this to be wise and salutary. The lateness of the hour prevents my entering fully into the subject now. I shall reserve my answer to some other day. But I cannot sit down without adding a few words. He is displeased that there is no provision for peremptory challenges to juries. There is no such provision made in our Constitution or laws. The answer made by an honorable member lately is a full answer to this. He said, and with great propriety and truth, that where a technical word was used, all the incidents belonging to it necessarily attended it. The right of challenging is incident to the trial by jury, and therefore, as one is secured, so is the other. I hope gentlemen will see that the dangers he has pointed out do not necessarily follow.