In Convention, Richmond, Saturday, June 21, 1788
Mr. HARRISON reported, from the committee on privileges and elections, that the committee had, according to order, had under their further consideration the petition of Mr. Richard Morris, complaining of an undue election and return of William White, as a delegate to serve in this Convention for the county of Louisa, and had agreed upon a report, and come to several resolutions thereupon, resulting as followson motion, ordered, that the committee of privileges and elections be discharged from further proceeding on the petition of Richard Morris, and that the petitioner have leave to withdraw the same.[The 1st and 2d sections of the 3d article still under consideration.]
Mr. GRAYSON. Mr. Chairman, it seems to have been a rule with the gentlemen on the other side to argue from the excellency of human nature, in order to induce us to grant away (if I may be allowed the expression) the rights and liberties of our country. I make no doubt the same arguments were used on a variety Of occasions. I suppose, sir, that this argument was used when Cromwell was invested with power. The same argument was used to gain our assent to the stamp act. I have no doubt it has been invariably the argument in all countries, when the concession of power has been in agitation. But power ought to have such checks and limitations as to prevent bad men from abusing it. It ought to be granted on a supposition that men will be bad; for it may be eventually so. With respect to the judiciary, my grand objection is, that it will interfere with the state judiciaries, in the same manner as the exercise of the power of direct taxation will interfere with the same power in the state governments; there being no superintending central power to keep in order these two contending jurisdictions. This is an objection which is unanswerable in its nature.
In England they have great courts, which have great and interfering powers. But the controlling power of Parliament, which is a central focus, corrects them. But here each party is to shift for itself. There is no arbiter or power to correct their interference. Recurrence can be only had to the sword. I shall endeavor to demonstrate the pernicious consequences of this interference. It was mentioned, as one reason why these great powers might harmonize, that the judges of the state courts might be federal judges. The idea was approbated, in my opinion, with a great deal of justice. They are the best check we have. They secure us from encroachments on our privileges. They are the principal defence of the states. How improper would it be to deprive the state of its only defensive armor! I hope the states will never part with it. There is something extremely disgraceful in the idea. How will it apply in the practice? The independent.judges of Virginia are to be subordinate to the federal judiciary. Our judges in chancery are to be judges in the inferior federal tribunals. Something has been said of the independency of the federal judges. I will only observe that it is on as corrupt a basis as the art of man can place it. The salaries of the judges may be augmented. Augmentation of salary is the only method that can be taken to corrupt a judge.
It has been a thing desired by the people of England for many years, that the judges should be independent. This independency never was obtained till the second or third year of the reign of George III. It war omitted at the revolution by inattention. Their compensation is now fixed, and they hold their offices during good behavior. But I say that our federal judges are placed in a situation as liable to corruption as they could possibly be. How are judges to be operated upon? By the hopes of reward, and not the fear of a diminution of compensation. Common decency would prevent lessening the salary of a judge. Throughout the whole page of history, you will find the corruption of judges to have always arisen from that principlethe hope of reward. This is left open here. The flimsy argument brought by my friend, not as his own, but as supported by others, will not hold. It would be hoped that the judges should get too much rather than too little, and that they should be perfectly independent. What if you give six hundred or a thousand pounds annually to a judge? It is but a trifling object, when, by that little money, you purchase the most invaluable blessing that any country can enjoy.
There is to be one Supreme Courtfor chancery, admiralty, common pleas, and exchequer, (which great eases are left in England to four great, courts,) to which are added criminal jurisdiction, and all cases depending on the law of nationsa most extensive jurisdiction. This court has more power than any court under heaven. One set of judges ought not to have this powerand judges, particular, who have temptation always before their eyes. The court thus organized are to execute laws made by thirteen nations, dissimilar in their customs, manners, laws, and interests. If we advert to the customs of these different sovereignties, we shall find them repugnant and dissimilar. Yet they are all forced to unite and concur in making these laws. They are to form them on one principle, and on one idea, whether the civil law, common law, or law of nations. The gentleman was driven, the other day, to the expedient of acknowledging the necessity of having thirteen different tax laws. This destroys the principle, that he who lays a tax should feel it and bear his proportion of it. This has not been answered: it will involve consequences so absurd, that, I presume, they will not attempt to make thirteen different codes. They will be obliged to make one code. How will they make one code, without being contradictory to some of the laws of the different states?
It is said there is to be a court of equity. There is no such thing in Pennsylvania, or in some other states in the Union. A nation, in making a law, ought not to make it repugnant to the spirit of the Constitution or the genius of the people. This rule cannot be observed in forming a general code. I wish to know how the people of Connecticut would agree with the lordly pride of your Virginia nobility. Its operation will be as repugnant and contradictory, in this case, as in the establishment of a court of equity. They may inflict punishments where the state governments will give rewards. This is not probable; but still it is possible. It would be a droll sight, to see a man on one side of the street punished for a breach of the federal law, and on the other side another man rewarded by the state legislature for the same act. Or suppose it were the same person that should be thus rewarded and punished at one time for the same act; it would be a droll sight, to see a man laughing on one side of his face, and crying on the other. I wish only to put this matter in a clear point of view; and I think that if thirteen states, different in every thing, shall have to make laws for the government of the whole, they cannot harmonize, or suit the genius of the people; there being no such tiling as a spirit of laws, or a pervading principle, applying to every state individually. The only promise, in this respect, is, that there shall be a republican government in each state. But it does not say whether it is to be aristocratical or democratical.
My next objection to the federal judiciary is, that it is not expressed in a definite manner. The jurisdiction of all cases arising under the Constitution and the taws of the Union is of stupendous magnitude.
It is impossible for human nature to trace its extent: It is so vaguely and indefinitely expressed, that its latitude cannot be ascertained. Citizens or subjects of foreign states may sue citizens of the different states in the federal courts. It is extremely impolitic to place foreigners in a better situation than our own citizens. This was never the policy of other nations. It was the policy, in England, to put foreigners on a secure footing. The statute merchant and statute staple were favorable to them. But in no country are the laws more favorable to foreigners than to the citizens. If they be equally so, it is surely sufficient. Our own state merchants would be ruined by it, because they cannot recover debts so soon in the state courts as foreign merchants can recover of them in the federal courts. The consequence would be inevitable ruin to commerce. It will induce foreigners to decline becoming citizens. There is no reciprocity in it.
How will this apply to British creditors? I have ever been an advocate for paying the British creditors, both in Congress and elsewhere. But here we do injury to our own citizens. It is a maxim in law, that debts should be on the same original foundation they were on when contracted. I presume, when the contracts were made, the creditors had an idea of the state judiciaries only. The procrastination and delays of our courts were probably in contemplation by both parties. They could have no idea of the establishment of new tribunals to affect them. Trial by jury must have been in the contemplation of both parties, and the venue was in favor of the defendant. From these premises it is clearly discernible that it would be wrong to change the nature of the contracts. Whether they will make a law other than the state laws, I cannot determine.
But we are told that it is wise, politic, and preventive of controversies with foreign nations. The treaty of peace with Great Britain does not require that creditors should be put in a better situation than they were, but that there should be no hinderance to the collection of debts. It is therefore unwise and impolitic to give those creditors such an advantage over the debtors. But the citizens of different states are to sue each other in these courts. No reliance is to be put on the state judiciaries. The fear of unjust regulations and decisions in the states is urged as the reason of this jurisdiction. Paper money in Rhode Island has been instanced by gentlemen. There is one clause in the Constitution which prevents the issuing of paper money. If this clause should pass, (and it is unanimously wished by every one that it should not be objected to,) I apprehend an execution in Rhode Island would be as good and effective as in any state in the Union.
A state may sue a foreign state, or a foreign state may sue one of our states. This may form a new, American law of nations. Whence the idea could have originated, I cannot determine, unless from the idea that predominated in the time of Henry IV. and Queen Elizabeth. They took it into their heads to consolidate all the states in the world into one great political body. Many ridiculous projects were imagined to reduce that absurd idea into practice; but they were all given up at last. My honorable friend, whom I much respect, said that the consent of the parties must be previously obtained. I agree that the consent of foreign nations must be had before they become parties; but it is not so with our states. It is fixed in the Constitution that they shall become parties. This is not reciprocal. If the Congress cannot make a law against the Constitution, I apprehend they cannot make a law to abridge it. The judges are to defend it. They can neither abridge nor extend it. There is no recriprocity in this, that a foreign state should have a right to sue one of our states, whereas a foreign state cannot be sued without its own consent. The idea to me is monstrous and extravagant. It cannot be reduced to practice.
Suppose one of our states objects to the decision; arms must be recurred to. How can a foreign state be compelled to submit to a decision? Pennsylvania and Connecticut had like, once, to have fallen together concerning their contested boundaries. I was convinced that the mode provided in the Confederation, for the decision of such disputes, would not answer. The success which attended it, with respect to settling bounds, has proved to me, in some degree, that it would not answer in any other case whatever. The same difficulty must attend this mode in the execution. This high court has not a very extensive original.jurisdiction. It is not material. But its appellate jurisdiction is of immense magnitude; and what has it in view, unless to subvert the state governments? The honorable gentleman who presides has introduced the high court of appeals. I wish the federal appellate court was on the same foundation. If we investigate the subject, we shall find this jurisdiction perfectly unnecessary. It is said that its object is to prevent subordinate tribunals from making unjust decisions, to defraud creditors. I grant the suspicion is in some degree just. But would not an appeal to the state courts of appeal, or supreme tribunals, correct the decisions of inferior courts? Would not this put every thing right? Then there would be no interference of jurisdiction.
But a gentleman (Mr. Marshall) says, we ought certainly to give this power to Congress, because our state courts have more business than they can possibly do. A gentleman was once asked to give up his estate because he had too much; but he did not comply. Have we not established district courts, which have for their object the full administration of justice? Our courts of chancery might, by our legislature, be put in a good situation; so that there is nothing in this observation.
But the same honorable gentleman says, that trial by jury is preserved by implication. I think this was the idea. I beg leave to consider that, as well as other observations of the honorable gentleman. After enumerating the subjects of its jurisdiction, and confining its original cognizance to cases affecting ambassadors and other public ministers, and those in Which a state shall be a party, it expressly says, that, “in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact.” I would beg the honorable gentleman to turn his attention to the word appeal, which I think comprehends chancery, admiralty, common law, and every thing. But this is with such exceptions, and under such regulations, as Congress shall make. This, we are told, will be an ample security. Congress may please to make these exceptions and regulations, but they may not, also. I lay it down as a principle, that trial by jury is given up to the discretion of Congress. If they take it away, will it be a breach of this Constitution? I apprehend not; for, as they have an absolute appellate jurisdiction of facts, they may alter them as they may think proper. It is possible that Congress may regulate it properly; but still it is at their discretion to do it or not. There has been so much said of the excellency of the trial by jury, that I need not enlarge upon it. The want of trial by jury in the Roman republic obliged them to establish the regulation of patron and client. I think this must be the case in every country where this trial does not exist. The poor people were obliged to be defended by their patrons.
It may be laid down as a role that, where the governing power possesses an unlimited control over the venue, no man’s life is in safety. How is it in this system? “The trial of all crimes shall be by jury, except in eases of impeachment; and such trial shall be held in the state where the said crimes shall have been committed.” He has said that, when the power of a court is given, all its appendages and concomitants are given. Allowing this to be the case by implication, how is it? Does it apply to counties? No, sir. The idea is, that the states are to the general government as counties are to our state legislatures. What sort of a vicinage is given by Congress? The idea which I call a true vicinage is, that a man shall be tried by his neighbors. But the idea here is, that he may be tried in any part of the state. Were the venue to be established according to the federal districts, it would not come up to the true idea of vicinage. Delaware sends but one member: it would then extend to that whole state. This state sends ten members, and has ten districts; but this is far from the true idea of vicinage. The allusion another gentleman has made to this trial, as practised in England, is improper. It does not justify this regulation. The jury may come from any part of the state. They possess an absolute, uncontrollable power over the venue. The conclusion, then, is, that they Can hang any one they please, by having a jury to suit their purpose. They might, on particular, extraordinary occasions, suspend the privilege. The Romans did it on creating a dictator. The British government does it when the habeas corpus is to be suspendedwhen the salus populi is affected. I never will consent to it unless it be properly defined.
Another gentleman has said that trial by jury has not been so sacred a thing among our ancestors, and that in England it may be destroyed by an act of Parliament. I believe the gentleman is mistaken. I believe it is secured by Magna Charta and the bill of rights. I believe no act of Parliament can affect it, if this principle be true,that a law is not paramount to the constitution. I believe, whatever may be said of the mutability of the laws, and the defect of a written, fixed constitution, that it is generally thought, by Englishmen, that it is so sacred that no act of Parliament can affect it.
The interference of the federal judiciary and the state courts will involve the most serious and even ludicrous consequences. Both courts are to act on the same persons and things, and cannot possibly avoid interference. As to connection or coalition, it would be incestuous. How could they avoid it, on an execution from each court, either against the body or effects? How will it be with respect to mortgaged property? Suppose the same lands or slaves mortgaged to two different persons, and the mortgages foreclosed, one in the federal and another in the state court; will there be no interference in this case? It will be impossible to avoid interference in a million of cases. I would wish to know how it can be avoided; for it is an insuperable objection in my mind. I shall no longer fatigue the committee, but shall beg leave to make some observations another time.
Gov. RANDOLPH. Mr. Chairman, I shall state to the committee in what cases the federal judiciary appears to me to deserve applause, and where it merits dispraise. It has not yet been denied that a federal judiciary is necessary to a certain extent, Every government necessarily involves a judiciary as a constituent part. If, then, a federal judiciary be necessary, what are the characters of its powers? That it shall be auxiliary to the federal government, support and maintain harmony between the United States and foreign powers, and between different states, and prevent a failure of.justice in cases to which particular state courts are incompetent. If this judiciary be reviewed as relative to these purposes, I think it will be found that nothing is granted which does not belong to a federal judiciary. Self-defence is its first object. Has not the Constitution said that the states shall not use such and such powers, and given exclusive powers to Congress? If the state judiciaries could make decisions conformable to the laws of their states, in derogation to the general government, I humbly apprehend that the federal government would soon be encroached upon. If a particular state should be at liberty, through its judiciary, to prevent or impede the operation of the general government, the latter must soon be undermined. It is, then, necessary that its jurisdiction should “extend to all cases in law and equity arising under this Constitution and the laws of the United States.”
Its next object is to perpetuate harmony between us and foreign powers. The general government, having the superintendency of the general safety, ought to be the judges how the United States can be most effectually secured and guarded against controversies with foreign nations. I presume, therefore, that treaties and cases affecting ambassadors, other public ministers, and consuls, and all those concerning foreigners, will not be considered as improper subjects for a federal judiciary. Harmony between the states is no less necessary than harmony between foreign states and the United States. Disputes between them ought, therefore, to be decided by the federal judiciary. Give me leave to state some instances which have actually happened, which prove to me the necessity of the power of deciding controversies between two or more states. The disputes between Connecticut and Pennsylvania, and Rhode Island and Connecticut, have been mentioned. I need not particularize these. Instances have happened in Virginia. There have been disputes respecting boundaries. Under the old government, as well as this, reprisals have been made by Pennsylvania and Virginia on one another. Reprisals have been made by the very judiciary of Pennsylvania on the citizens of Virginia. Their differences concerning their boundaries are not yet perhaps ultimately determined. The legislature of Virginia, in one instance, thought this power right. In the case of Mr. Nathan, they thought the determination of the dispute ought to be out of the state, for fear of partiality.
It is with respect to the rights of territory that the state judiciaries are not competent. If the claimants have a right to the territories claimed, it is the duty of a good government to provide means to put them in possession of them. If there be no remedy, it is the duty of the general government to furnish one.
Cases of admiralty and maritime jurisdiction cannot, with propriety, be vested in particular state courts. As our national tranquillity and reputation, and intercourse with foreign nations, may be affected by admiralty decisions; as they ought, therefore, to be uniform; and as there can be no uniformity if there be thirteen distinct, independent jurisdictions,this jurisdiction ought to be in the federal judiciary. On these principles, I conceive the subjects themselves are proper for the federal judiciary.
Although I do not concur with the honorable gentleman that the judiciary is so formidable, yet I candidly admit that there are defects in its construction, among which may be objected too great an extension of jurisdiction. I cannot say, by any means, that its jurisdiction is free from fault, though I conceive the subjects to be proper. It is ambiguous in some parts, and unnecessarily extensive in others. It extends to all cases in law and equity arising under the Constitution. What are these cases of law and equity? Do they not involve all rights, from an inchoate right to a complete right, arising from this Constitution? Notwithstanding the contempt gentlemen express for technical terms, I wish such were mentioned here. I would have thought it more safe; if it had been more clearly expressed. What do we mean by the words arising under the Constitution? What, do they relate to? I conceive this to be very ambiguous. If my interpretation be right, the word arising will be carried so far that it will be made use of to aid and extend the federal jurisdiction.
As to controversies between the citizens of different states, I am sure the general government will make provision to prevent men being harassed to the federal court. But I do not see any absolute necessity for vesting it with jurisdiction in these cases.
With respect to that part which gives appellate jurisdiction, both as to law and fact, I concur with the honorable gentleman who presides, that it is unfortunate, and my lamentation over it would be incessant, were there no remedy. I can see no reason for giving it jurisdiction with respect to fact as well as law; because we find, from our own experience, that appeals as to fact are not necessary. My objection would be unanswerable, were I not satisfied that it contains its own cure, in the following words: “with such exceptions and under such regulations as Congress shall make.” It was insisted on by gentlemen that these words could not extend to law and fact, and that they could not separate the fact from the law. This construction is irrational; for, if they cannot separate the law from the fact, and if the exceptions are prevented from applying to law and fact, these words would have no force at all. It would be proper to refer here to any thing that could be understood in the federal court. They may except generally both as to law and fact, or they may except as to the law only, or fact only. Under these impressions, I have no difficulty in saving that I consider it as an unfortunate clause. But when I thus impeach it, the same candor which I have hitherto followed calls upon me to declare that it is not so dangerous as it has been represented. Congress can regulate it properly, and I have no doubt they will. An honorable gentleman has asked, Will you put the body of the state in prison? How is it between independent states? If a government refuses to do justice to individuals, war is the consequence. Is this the bloody alternative to which we are referred? Suppose justice was refused to be done by a particular state to another; I am not of the same opinion with the honorable gentleman. I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party. But it is objected that this is retrospective in its nature. If thoroughly considered, this objection will vanish. It is only to render valid and effective existing claims, and secure that justice, ultimately, which is to be found in every regular government. It is said to be disgraceful. What would be the disgrace? Would it not be that Virginia, after eight states had adopted the government, none of which opposed the federal jurisdiction in this case, rejected it on this account? I was surprised, after hearing him speak so strenuously in praise of the trial by jury, that he would rather give it up than have it regulated as it is in the Constitution. Why? Because it is not established in civil cases, and in criminal cases the jury will not come from the vicinage. It is not excluded in civil cases, nor is a jury from the vicinage in criminal cases excluded. This house has resounded repeatedly with this observationthat where a term is used, all its concomitants follow from the same phrase. Thus, as the trial by jury is established in criminal cases, the incidental right of challenging and excepting is also established, which secures, in the utmost latitude, the benefit of impartiality in the jurors. I beg those gentlemen who deny this doctrine to inform me what part of the bill of English rights, or Great Charter, provides this fight. The Great Charter only provides that “no man shall be deprived of the free enjoyment of his life, liberty, or property, unless declared to be forfeited by the judgment of his peers, or the law of the land.” The bill of rights gives no additional security on the subject of trial by jury. Where is the provision made, in England, that a jury shall be had in civil cases? This is secured by no constitutional provision. It is left to the temper and genius of the people to preserve and protect it.
I beg leave to differ from my honorable friends in answering this objection. They said that, in case of a general rebellion, the jury was to be drawn from some other part of the country. I know that this practice is sanctified by the usages in England. But I always thought that this was one of those instances to which that nation, though alive to liberty, had unguardedly submitted. I hope it will never be so here. If the whole country be in arms, the prosecutor for the commonwealth can get a good jury, by challenging improper jurors. The right of challenging, also, is sufficient security for the person accused. I can see no instance where this can be abused. It will answer every purpose of the government, and individual security. In this whole business we have had argumenta ad hominem in abundance. A variety of individuals; and Classes of men, have been solicited to opposition. I will pass by the glance which was darted at some gentlemen in this house, and take no notice of it; because the lance shivered as against adamantine. Gentlemen then intimidate us on the subject of the lands settled to the westward, and claimed by different claimants, who, they urge, will recover them in the federal court. I will observe that, as to Mr. Henderson’s claim, if they look at the laws, they will see a compensation made for him: he has acquiesced, and has some of the lands. The Indiana Company has been dissolved. The claim is dormant, and will probably never be revived. I was once well acquainted with these matters: perhaps I may have forgotten. I was once thoroughly persuaded of the justice of their claim. I advocated it, not only as a lawyer in their behalf, but supported it as my opinion. I will not say how far the acts of Assembly, passed when they had full power, may have operated respecting it. One thing is certainthat, though they may have the right, yet the remedy will not be sought against the settlers, but the state of Virginia. The court of equity will direct a compensation to be made by the state, the claimants being precluded at law from obtaining their right, and the settlers having now an indefeasible title under the state.
The next is Lord Fairfax’s quitrents. He died during the war. In the year 1782, an act passed sequestering all quitrents, then due, in the hands of the persons holding the lands, until the right of descent should be known, and the General Assembly should make final provision therein. This act directed all quitrents, thereafter becoming due, to be paid into the public treasury; so that, with respect to his descendants, this act confiscated the quitrents. In the year 1783, an act passed restoring to the legal representative of the proprietor the quitrents due to him at the time of his death. But in the year 1785 another act passed, by which the inhabitants of the Northern Neck are exonerated and discharged from paying composition and quitrents to the commonwealth. This last act has completely confiscated this property. It is repugnant to no part of the treaty, with respect to the quitrents confiscated by the act of 1782.
I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? I beg the honorable gentleman to lay the objection to his heartlet him consider it seriously and attentively. Are we to say that we shall discard this government because it would make us all honest? Is this to be the language of the select representatives of the free people of Virginia?
An honorable gentleman observed, to-day, that there is no instance where foreigners have this advantage over the citizens. What is the reason of this? Because a Virginian creditor may go about for a lamentable number of years before he can get justice, while foreigners will get justice immediately. What is the remedy? Honesty. Remove the procrastination of justice, make debts speedily payable, and the evil goes away. But you complain of the evil because you will not remove it. If a foreigner can recover his debts in six months, why not, make a citizen do so? There will then be reciprocity. This term is not understood. Let America be compared to any nation with which she has connection, and see the difference with respect to justice. I am sorry to make the comparison; but the truth is that, in those nations, justice is obtained with much more facility than in America.
Gentlemen will perhaps ask me, Why, if you know the Constitution to be ambiguous, will you vote for it? I answer, that I see a power which will be probably exercised to remedy this defect. The style of the ratification will remove this mischief. I do not ask for this concessionthat human nature is just and absolutely honest. But I am fair when I say that the nature of man is capable of virtue where there is even a temptation, and that the defects in this system will be removed. The appellate jurisdiction might be corrected, as to matters of fact, by the exceptions and regulations of Congress, but certainly will be removed by the amendatory provision in the instrument itself; so that we do not depend on the virtue of our representatives only, but the sympathy and feelings between the inhabitants of the states. On the same grounds, the sum on which appeals will be allowed may be limited to a considerable amount, in order to prevent vexatious and oppressive appeals. The appellate jurisdiction, as to fact, and in trivial sums, are the two most material defects. If it be not considered too early, as ratification has not yet been spoken of, I beg leave to speak of it. If I did believe, with the honorable gentleman, that all power not expressly retained was given up by the people, I would detest this government.
But I never thought so, nor do I now. If, in the ratification, we put words to this purpose, “and that all authority not given is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States,”I say, if we do this, I conceive that, as this style of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution every exercise of a power not expressly delegated therein. I see no objection to this. It is demonstrably clear to me that rights not given are retained, and that liberty of religion, and other rights, are secure. I hope this committee will not reject it for faults which can be corrected, when they see the consequent confusion that will follow.