Kitabı oku: «The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788», sayfa 21

CHAPTER XII
THE STRATEGY OF VICTORY

Washington's influence carried this government [Virginia's ratification of the Constitution]. (Monroe to Jefferson, July 12, 1788.)

If I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. (Henry, in his last debate.)

Now came the real tug-of-war. The debate on the Judiciary was the climax of the fight. And here John Marshall was given the place of chief combatant. The opposition felt that again they might influence one or two delegates by mere debate, and they prepared to attack with all their might. "Tomorrow the Judiciary comes on when we [Anti-Constitutionalists] shall exert our whole force. It is expected we shall get two Votes if the point is conducted in an able & masterly manner," Grayson advised the opposition headquarters in New York.¹²⁹⁸

The Judiciary was, indeed, the weakest part of the Constitutionalists' battle line. The large amount of the British debts; the feeling, which Virginia's legislation against the payment of them had fostered, that the day would be far distant and perhaps would never come when those debts would have to be paid; the provision of the Constitution concerning the making of treaties, which were to be the supreme law of the land; the certainty that the Treaty of Peace would be covered by the new fundamental law; the fear that another treaty would be negotiated governing the British obligations more specifically, if the Constitution were adopted; the fact that such a treaty and all other National laws would be enforced by National Courts – all these and many other germane considerations, such as land grants and confused titles, were focused on the fears of the planters.

The creditor class were equally anxious and alarmed. "If the new Constitution should not be adopted or something similar, we are of the opinion that such is the interest and influence of Debtors in our State that every thing … will be at Risk" was the opinion of the legal representatives in Virginia of the Collins mercantile house.¹²⁹⁹

Great quantities of land granted under the Royal Government by Great Britain, but which the State had confiscated, had been bought and settled by thousands of men whose families now lived upon this land; and these settlers felt that, in some way, their titles would be in danger if they were dragged before a National Court.¹³⁰⁰

The Constitutionalists did not underestimate their peril, and at no point during the three weeks' debate did they prepare for battle with greater care. They returned to their original tactics and delivered the first blow. Pendleton, of course, was the ideal man to lead the Constitutionalist attack. And never in his whole life did that extraordinary man make a more convincing argument.¹³⁰¹ Mason tried his best to answer Pendleton, although he admitted that the Judiciary "lies out of my line." Still he was clear, in his own mind, that the National Judiciary was "so constructed as to destroy the dearest rights of the community," and thought it would "destroy the state governments, whatever may have been the intention."

While Mason spoke with uncertainty, it was in this brief speech that this eminent Virginian uncovered the hidden thought and purpose of many of the Constitutionalists; and uttered an unconscious prophecy which it was the destiny of John Marshall to realize. "There are," said Mason, "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"; and he further declared, "I know from my own knowledge many worthy gentlemen" of this opinion. Madison demanded of Mason "an unequivocal explanation." Mason exonerated Madison, personally, and admitted that "neither did I ever hear any of the delegates from this state advocate it." Thus did the extreme courtesy of the Virginia debate cause the opposition to yield one of its most effective weapons.¹³⁰²

But Mason made the most out of the Constitution's proposed Judiciary establishment. Take it at its best, said he: "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?"¹³⁰³ As to the jurisdiction of National Courts in controversies between citizens of different States, "Can we not trust our state courts with a decision of these?" asked Mason. "What!" cried he, "carry me a thousand miles from home – from my family and business – to where, perhaps, it will be impossible for me to prove that I paid" the money sued for.

"Is not a jury excluded absolutely?" by the Constitution, asked Mason. And even if a jury be possible in National Courts, still, under the Constitution, where is there any right to challenge jurors? "If I be tried in the Federal Court for a crime which may effect my life, have I a right of challenging or excepting to the jury?" This omission was a serious and immediate peril to great numbers of Virginians, said he. "I dread the ruin that will be wrought on thirty thousand of our people [deriving their titles through Fairfax] with respect to disputed lands. I am personally endangered as an inhabitant of the Northern Neck." Under the Constitution "the people of that part will be obliged … to pay the quit rent of their lands." This was to Mason, "a most serious alarm…"

"Lord Fairfax's title was clear and undisputed," he continued. The State had "taxed his lands as private property"; but "after his death" Virginia, in 1782, "sequestered the quit rents due at his death, in the hands of his debtors. The following year" they were restored to his executor. Then came the Treaty of Peace providing against "further confiscation"; but, "after this, an act of Assembly passed, confiscating his [Fairfax's] whole property."

So, concluded Mason, "as Lord Fairfax's title was indisputably good, and as treaties [under the Constitution] are to be the supreme law of the land, 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?" Yet that was what they would be compelled to do if the Constitution were adopted. Thus they would be "doubly taxed." "Were I going to my grave, I would appeal to Heaven that I think it [this] true," fervently avowed the snowy-haired Mason.

Thus Mason made one of the cleverest appeals of the whole debate to the personal and pecuniary interests of a considerable number of the people and to several members of the Convention. In this artful and somewhat demagogic argument he called attention to the lands involved in other extensive land grants. As we have seen, John Marshall was then personally interested in the Fairfax title,¹³⁰⁴ and he was soon to possess it; in after years, it was to develop one of the great legal contests of history; and the court over which Marshall was to preside was to settle it definitively.

Although not a lawyer,¹³⁰⁵ Madison now made an argument which was one of the distinguished intellectual performances of the Convention. But he did not comprehend the sweep of the National Judiciary's power. "It is not in the power of individuals," said Madison, "to call any state into court." It may be that this statement influenced John Marshall, who soon followed, to repeat it.¹³⁰⁶

But it was Henry who gave the subject of the Judiciary that thrill, anticipation of which filled every seat on the floor and packed the galleries. "Mournful," to Henry, were the recollections which the debate already had produced. "The purse is gone; the sword is gone," and now the scales of Justice are to be given away. Even the trial by jury is to be abandoned. Henry spoke long and effectively; and, extravagant as most of his statements were, his penetrating mind was sometimes more nearly right in its forecast than even that of Madison.

As he closed, the daring of the Patrick Henry of 1765 and 1775 displayed itself. "Shall Americans give up that [jury trial] which nothing could induce the English people to relinquish?" he exclaimed. "The idea is abhorrent to my mind. There was a time when we should have spurned at it… Old as I am, it is probable I may yet have the appellation of rebel… As this government [Constitution] stands, I despise and abhor it," cried the unrivaled orator of the people.¹³⁰⁷

Up now rose John Marshall, whom the Constitutionalist leaders had agreed upon for the critical task of defending the Judiciary article. Marshall, as we have seen, had begun the practice of law in Richmond only five years before; and during much of this period his time and attention had been taken by his duties as a delegate in the Legislature. Yet his intellectual strength, the power of his personality, his likableness, and all the qualities of his mind and character had so impressed every one that, by common consent, he was the man for the hour and the work at hand. And Marshall had carefully prepared his speech.¹³⁰⁸

The Judiciary provided by the Constitution was, said Marshall "a great improvement on that system from which we are now departing. Here [in the Constitution] are tribunals appointed for the decision of controversies which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses." The National Judiciary deserved the support of all unless it was "defectively organized and so constructed as to injure, instead of accommodate, the convenience of the people."

After the "fair and able" discussion by its supporters, Marshall supposed that its opponents "would be convinced of the impropriety of some of their objections. But," he lamented, "they still continue the same opposition." And what was their complaint? This: That National Courts would not be as fair and impartial as State Courts.

But why not? asked Marshall. Was it because of their tenure of office or the method of choosing them? "What is it that makes us trust our [State] judges? Their independence in office and manner of appointment."¹³⁰⁹ But, under the Constitution, are not National judges "chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more independent? If so," will they not be equally fair and impartial? "If there be as much wisdom and knowledge in the United States as in a particular state," will they "not be equally exercised in the selection of [National] judges?" Such were the questions which Marshall poured upon the Anti-Constitutionalists.

The kernel of the objection to National Courts was, declared Marshall, "a belief that there will not be a fair trial had in those courts." But it was plain, he argued, that "we are as secure there as anywhere else. What mischief results from some causes being tried there [in the National Courts]?" Independent judges "wisely appointed … will never countenance an unfair trial." Assuming this to be true "what are the subjects of the jurisdiction" of National Courts? To Mason's objection that Congress could create any number of inferior courts it might deem necessary, Marshall replied that he had supposed that those who feared Congress would say that "no inferior courts" would be established, "but that we should be dragged to the centre of the Union." On the contrary, the greater the number of these inferior courts, the less danger "of being dragged to the centre of the United States."

Mason's point, that the jurisdiction of National Courts would extend to all cases, was absurd, argued Marshall. For "has the government of the United States power to make laws on every subject?.. laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can" Congress "go beyond the delegated powers?" Certainly not. Here Marshall stated the doctrine which, fifteen years later, he was to announce from the Supreme Bench: —

"If," he asserted, "they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [National] judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void… To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."

The National Courts would not supplant the State tribunals. The Constitution did not "exclude state courts" from those cases which they now possess. "They have concurrent jurisdiction with the Federal courts in those cases in which the latter have cognizance," expounded the nascent jurist. "Are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the Federal Judiciary can take [exclusive] cognizance of?"

The work of the National Courts would make the State Courts more efficient because it would relieve them of a mass of business of which they were not able to dispose. "Does not every gentleman know that the causes in our [State] courts are more numerous than they can decide?" asked Marshall. "Look at the dockets," he exclaimed. "You will find them crowded with suits which the life of man will not see determined.¹³¹⁰ If some of these suits be carried to other courts, will it be wrong? They will still have business enough."

How vain and fanciful, argued Marshall, the contention that National judges would screen "officers of the [National] government from merited punishment." Does anybody really believe that "the Federal sheriff will go into a poor man's house and beat him or abuse his family and the Federal court will protect him," as Mason and Henry had said would be the case? Even if a law should be passed authorizing "such great insults to the people … it would be void," declared Marshall. Thus he stated for the second time the doctrine which he was, from the Supreme Bench, to put beyond controversy.

Why, asked Marshall, "discriminate [in the Constitution] between … chancery, admiralty and the common law" as the Anti-Constitutionalists insisted upon doing? "Why not leave it to Congress? They … would not wantonly infringe your rights." If they did, they would "render themselves hateful to the people at large." Therefore, "something may be left to the legislature [Congress] freely chosen by ourselves from among ourselves, who are to share the burdens imposed upon the community and who can be changed at our pleasure. Where power may be trusted and there is no motive to abuse it, it … is as well to leave it undetermined as to fix it in the Constitution."

These sentences had prophecy in them. Indeed, they were to be repeated almost without change by the same man that now uttered them in debate, when he should ascend to the ultimate place of official interpretation of our fundamental law. While Hamilton's immortal state papers profoundly impressed Marshall, as we shall see, they were not, as many have supposed, the source of his convictions. In the Virginia Constitutional Convention of 1788 Marshall stated in debate the elements of most of his immortal Nationalist opinions.

But there was one exception. As to "disputes between a state and the citizens of another state," Marshall hoped "that no gentleman will think that a state will be called at the bar of a Federal court… It is not rational to suppose that the Sovereign power should be dragged before a court. The intent is to enable states to recover claims of individuals residing in other states." If there were partiality in this – "if an individual cannot … obtain judgment against a state, though he may be sued by a state" – it was a difficulty which could "not be avoided"; let the claimant apply to the State Legislature for relief.

The objection to suits in the National Courts between citizens of different States went "too far," contended Marshall. Such actions "may not in general be absolutely necessary," but surely in some such cases "the citizen … ought to be able to recur to this [National] tribunal." What harm could it do? "Will he get more than justice there? What has he to get? Justice! Shall we object to this because the citizen of another state can obtain justice without applying to our state courts?" Indeed, "it may be necessary" in causes affected by "the laws and regulations of commerce" and "in cases of debt and some other controversies."… "In claims for land it is not necessary – but it is not dangerous."

These suits between citizens of different States "will be instituted in the state where the defendant resides, and nowhere else," expounded the youthful interpreter of the Constitution; and the case "will be determined by the laws of the state where the contract was made. According to those laws, and those only, can it be decided." That was no "novelty," but "a principle" long recognized in the jurisprudence of Virginia. "The laws which governed the contract at its formation, govern it in its decision." National Courts, in such controversies, would "preserve the peace of the Union," because if courts of different States should not give justice between citizens of those States, the result would be "disputes between the states." Also the jurisdiction of National Courts in "controversies between a state and a foreign state … will be the means of preventing disputes with foreign nations"; for since "the previous consent of the parties is necessary … each party will acquiesce."

As to "the exclusion of trial by jury, in this case," Marshall asked, "Does the word court only mean the judges? Does not the determination of the jury necessarily lead to the judgment of the court? Is there anything" in the Constitution "which gives the [National] judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts." If "a court has cognizance of facts," it certainly "can make inquiry by a jury," dryly observed Marshall.

He ridiculed Mason's and Henry's statement that juries, in the ten miles square which was to be the seat of the National Government, would be "mere tools of parties with which he would not trust his person or property." "What!" exclaimed Marshall, "Will no one stay there but the tools and officers of the government?.. Will there not be independent merchants and respectable gentlemen of fortune … worthy farmers and mechanics" in the National Capital just as there were in Richmond? And "will the officers of the government become improper to be on a jury? What is it to the government whether this man or that man succeeds? It is all one thing."

As to jury trial not being guaranteed by the National Constitution in civil cases, neither did Virginia's Constitution, said Marshall, "direct trials by jury"; and the provision was "merely recommendatory" concerning jury trials in the Bill of Rights, which, as everybody knew, was no part of the State Constitution. "Have you a jury trial when a judgment is obtained on a replevin bond or by default?" Or "when a motion is made by the Commonwealth against an individual … or by one joint obligor against another, to recover sums paid as security." Of course not! "Yet they are all civil cases… The Legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient." And Congress would do the same, he reassured the Convention.

Mason's objection, that the right to challenge jurors was not guaranteed in the Constitution, was trivial, said Marshall. Did Virginia's Constitution make such a guaranty? Did the British Constitution do so by any express provision? Was jury challenge secured by Magna Charta? Or by the Bill of Rights?¹³¹¹ Every Virginian knew that they were not. "This privilege is founded in their [English people's] laws," Marshall reminded the Convention. So why insert it in the American Constitution?

Thus the inhabitants of the Northern Neck or anybody else were not in danger on that score. Neither were they placed in jeopardy in any other way by the Constitution. Here Marshall made a curious argument. Mason, he said, had "acknowledged that there was no complete title¹³¹² [in Fairfax]… Was he [Mason] not satisfied that the right of the legal representatives of the proprietor [to collect quitrents] did not exist at the time he mentioned [the date of the Treaty of Peace]? If so, it cannot exist now," declared Marshall. "I trust those who come from that quarter [the Northern Neck] will not be intimidated on this account in voting on this question" he pleaded; for let them remember that there was "a law passed in 1782 [sequestration of quitrents] which secured this."

Let the "many poor men" who Mason had said might "be harassed by the representatives of Lord Fairfax" rest assured on that point; for "if he [Fairfax] has no right," they could not be disturbed. "If he has this right [to collect quitrents] and comes to Virginia, what laws will his claims be determined by?" By Virginia's laws. "By what tribunals will they be determined? By our state courts."¹³¹³ So the "poor man" who was "unjustly prosecuted" would "be abundantly protected and satisfied by the temper of his neighbors."¹³¹⁴

The truth was, said Marshall, that justice would be done in all cases by both National and State Courts. Laws would not be "tyrannically executed" as the opposition feared; the "independency of your judges" would prevent that. "If," he argued, "a law be exercised tyrannically in Virginia, to whom can you trust? To your Judiciary! What security have you for justice? Their independence! Will it not be so in the Federal court?"

Like other objections to the power of Congress and the conduct of National Courts, the criticism that men might be punished for their political opinions was, declared Marshall, groundless and absurd; for, "the good opinion of the people at large must be consulted by their representatives – otherwise mischiefs would be produced which would shake the government to its foundations." Of course, then, he contended, neither Congress nor the courts would abuse their power. The charge that "unjust claims will be made, and the defendant had better pay them than go to the Supreme Court" was unthinkable. Would anybody incur great expense to oppress another? "What will he gain by an unjust demand? Does a claim establish a right? He must bring his witnesses to prove his claim"; otherwise "the expenses must fall on him." Will he take the chances that the injured man will not appear and defend the unjust suit? "Those who know human nature, black as it is," sarcastically observed Marshall, "must know that mankind are too attached to their own interest to run such a risk."

"The Federal Government," exclaimed Marshall, "has no other motive, and has every reason for doing right which the members of our state legislature have. Will a man on the eastern shore be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern shore to have his trial? A government, by doing this, would destroy itself."¹³¹⁵

This, in effect, was John Marshall's exposition of the second section of article three of the Constitution. Although Grigsby, whose accuracy on such details is not questioned, says that the speech was prepared, Robertson's report would not indicate that such was the case. The address is wanting in that close-knit continuity of reasoning and in that neatness of thought and expression which were Marshall's peculiar excellence. Like his first debate in the Convention, his speech on the Judiciary is disjointed. A subject is half treated in one part of his remarks and resumed in another.¹³¹⁶ But he makes his principal points with clearness and power. His argument is based on the independence of the courts as the best guaranty against unjust decisions; the responsibility of Congress to the people as the strongest safeguard against oppressive laws; and the similarity of Virginia's Constitution and Courts to the National Constitution and Courts as proof of the security, fairness, and justice of the National Judiciary.

Marshall's effort really closed the case for the Constitution on the Judiciary. That night Madison wrote to Hamilton that "a great effort is making" against the Judiciary. "The retrospection to cases antecedent to the Constitution, such as British debts and an apprehended revival of Fairfax – Indiana, Vandalia, &c., claims are also brought into view in all the terrific colours which imagination can give them… Delay & an adjournment will be tried if the adverse party find their numbers inferior… At present it is calculated that we still retain a majority of 3 or 4; and if we can weather the storm agst." the Judiciary, "I shall hold the danger to be pretty well over. There is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated."¹³¹⁷

Marshall's speech alarmed the opposition, and Grayson used all his learning, wit, and cleverness in an attempt to break its force. Randolph replied. Thus the second week closed. Neither side was certain of the exact number of votes it had, though every member was observed with the politician's anxiety and care.¹³¹⁸ The Constitutionalists had the greater confidence. Madison wrote his father that "The calculations on different sides do not accord;… I think however, the friends of the Constitution are most confident of superiority… It is not probable that many proselytes will be made on either side."¹³¹⁹

On Sunday Madison made his weekly report to Hamilton: "The Judiciary Department has been on the anvil for several days; and I presume will still be a further subject of disquisition. The attacks on it have apparently made less impression than was feared. But they may be secretly felt by particular interests that would not make the acknowledgment, and wḍ chuse to ground their vote agṣt the Constitution on other motives."¹³²⁰

The Anti-Constitutionalists were becoming desperate. If they could not amend the Constitution as a condition of ratifying it, their game now was either an adjournment or a delay until the Legislature, scheduled to meet on the following Monday and known to be, in the main, opposed to the Constitution, should afford them relief.

If these expedients should fail, there was open talk of secession.¹³²¹ The Constitutionalists arranged for the utmost dispatch and planned to "withhold, by a studied fairness in every step on the side of the Constitution, every pretext for rash experiments." They hoped to avoid previous amendment by proposing "to preface the ratification with some plain & general matters that cannot effect the validity of the" Constitution. They felt that "these expedients are rendered prudent by the nice balance of members, and the scruples entertained by some who are in general well affected." But whether these devices "will secure us a majority," wrote Madison, "I dare not positively to declare."

So small was their expected majority likely to be, that the Constitutionalists felt that "ordinary casualties … may vary the result." They were exceedingly alarmed over the coming to town of the members of the Legislature who "as individuals … may have some influence and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in Convention."¹³²²

From the adjournment on Saturday until the Convention again assembled on the following Monday, June 23, the opposition decided that something more must be done to counteract Marshall's exposition of the Judiciary article. For this purpose their leader and strongest men took the floor. The shorthand reporter was not present on this day, but the printer of the debates took notes.¹³²³

Nothing so well shows the esteem in which Marshall's ability was held as Patrick Henry's compliment to his young associate. "I have," said Henry, "the highest veneration and respect for the honorable gentleman, and I have experienced his candor on all occasions"; but "in this instance" Henry felt that Marshall was mistaken. "It is not on that paper before you we have to rely… It is on those who may be appointed under it. It will be an empire of men, and not of laws."

Marshall interrupted Henry to explain that the latter had not clearly understood him as to the trial by jury. Henry responded that "the gentleman's candor, sir, as I informed you before, I have the highest opinion of, and am happy to find he has so far explained what he meant; but, sir, has he mended the matter?" Then Henry enlarged upon what he thought was the Constitution's sacrifice of rights of trial by jury. What would become of this, that, and the other? What would be the end of this contract and that? And "what is to become of the purchases of the Indians? – those unhappy nations who … by being made drunk, have given a thousand, nay I might say, ten thousand acres, for the trifling sum of sixpence!" And what of those who owed the British debts? – they will "be ruined by being dragged into Federal courts and the liberty and happiness of our citizens gone, never again to be recovered."¹³²⁴

The Constitutionalists had anticipated that Henry would touch on his hobby, the Indians; and they were ready with an answer far more effective on the votes of the members than any argument, however weighty. Hardly had Henry closed when a giant old man got upon his feet. For more than thirty years this bluff and ancient veteran had been a soldier. Since 1755 he had been one of the boldest and ablest of Virginia's famous Indian fighters and often had commanded the Virginia rangers that defended the frontier from the savages. His utter fearlessness and tremendous physical strength had made him the terror of the red man, and his name was a household word throughout Virginia as a bulwark against the savages. Throughout the Revolution he had borne himself as a hero. So when Colonel Adam Stephen spoke, his words were sword-thrusts.¹³²⁵