The Convention, according to the order of the day, again resolved itself into a Committee of the whole Convention to take into farther consideration, the proposed plan of Government.-Mr. Harrison in the Chair.
(The 1st & 2d sections of the 3d article, still under consideration.)
Mr. Nicholas informed the Committee, that he had attempted on a former occasion, to deliver his sentiments on the subject of the Constitution, he therefore did not mean to trouble the Committee now, but he hoped that Gentle[men] were satisfied with the arguments that had been urged by those who were last up, and that the Clerk would proceed to read the next clause.
Mr. Henry replied, that he did not consider the objections answered in such a manner as gave satisfaction. He hoped Gentlemen would consider and remember, that if they were not heard now, they may never be heard again on the subject-It was an important part of the proposed plan of Government, which ought, if possible, to be fairly understood-he hoped therefore that Gentlemen would not be impatient. He proceeded to state the cases which might arise under the proposed plan of Government, and the probable interference of the Federal Judiciary with that of the State Judiciaries-The dangers and difficulties which would arise to the citizens from the operation of a Federal revenue law-which would extend to the lands, tenements, and other property coming under the denomination of direct taxes; and when intrusted to a Federal collector, might be attended with abuses of a dangerous and alarming tendency-The property of the citizens seized and sold for one-tenth part of its value-They ousted from their house and home, and would have no other recourse for redress but to the Federal Government, which might perhaps be 500 miles from the place of sale. He observed, this may be done, Mr. Chairman, for we have instances to prove my assertion, even in some parts of our State, where persons have been turned out of house and home by our collectors, and their property sold for a mere trifle,-and if it had not been for an act of the last Assembly, this practice would still have continued.
Mr. Chairman, I feel myself particularly interested in this part of the Constitution-I perceive dangers must and will arise, and when the laws of that Government come to be enforced here, I have my fears for the consequences. It is not on that paper before you we have to rely, should it be received; it is on those that may be appointed under it. It will be an empire of men and not of laws-Your rights and liberties rest upon men-Their wisdom and integrity may preserve you-but on the contrary, should they prove ambitious, and designing, may they not flourish and triumph upon the ruins of their country?
He then proceeded to state the appellate jurisdiction of the Judicial power, both as to law and fact, with such exceptions and under such regulations as Congress shall make. He observed, that as Congress had a right to organize the Federal Judiciary, they might or might not have recourse to a jury as they pleased.1
He left it to the candour of the Honorable Gentleman to say, whether those persons who were at the expense of taking witnesses to Philadelphia, or wherever the Federal Judiciary may sit, could be certain whether they were to be heard before a jury or not. An Honorable Gentleman, (Mr. Marshall) the other day observed, that he conceived the trial by jury better secured under the plan on the table, than in the British Government, or even in our Bill of Rights. I have the highest veneration and respect for the Honorable Gentleman, and I have experienced his candour on all occasions; but, Mr. Chairman, in this instance, he is so materially mistaken, that I cannot but observe, he is much in an error. I beg the Clerk to read that part of the Constitution which relates to trial by jury-The Clerk then read the eighth article of the Bill of Rights)
Mr. Marshall rose to explain what he had before said on this subject: He informed the Committee, that the Honorable Gentleman (Mr. Henry) must have misunderstood him. He said, that he conceived the trial by jury was as well secured, and not better secured, in the proposed new Constitution, as in our Bill of Rights-The Clerk then read the eleventh article of the Bill of Rights)
Mr. Henry-Mr. Chairman-The Gentleman's candour, 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? Is not the antient trial by jury preserved in the Virginia Bill of Rights-and is that the case in the new plan? No, Sir-they can do it if they please.
Will Gentlemen tell me the trial by a jury of the vicinage where the party resides, is preserved? True, Sir, there is to be a trial by a jury in the State where the fact was committed-but,Sir, this State, for instance, is so large that your juries may be collected 500 miles from where the party resides-no neighbours who are acquainted with their characters, their good or bad conduct in life, to judge of the unfortunate man who may be thus exposed to the rigour of that Government.2
Compare this security then, Sir, in our Bill of Rights to that in the new plan of Government, and in the first you have it-and in the other, in my opinion, not at all. But, Sir, in what situation will our citizens be, who have made large contracts under our present Government? They will be called to a Federal Court, and tried under retrospective laws-for it is evident, to me at least, that the Federal Court must look back, and give new remedies, to compel individuals to fullfil them. The whole history of human nature cannot produce a Government like that before you:-The manner in which the Judiciary and other branches of the Government are formed, seem to me, calculated to lay prostrate the States, and the liberties of the people-But, Sir, another circumstance ought totally to reject that plan, in my opinion-which is, that it cannot be understood-in many parts even by the supporters of it. A Constitution, Sir, ought to be like a beacon, held up to the public eye so as to be understood by every man. Some Gentlemen have observed, that the word jury, implies a jury of the vicinage.-There are so many inconsistencies in this, that, for my part, I cannot understand it. By the Bill of Rights of England, a subject has a right to a trial by his peers-what is meant by his peers?-Those who reside near him-his neighbours-and who are well acquainted with his character and situation in life. Is this secured in the proposed plan before you? No, Sir, I think not. But, Sir, as I have observed before, what is to become of the purchases of the Indians?-Those unhappy nations who have given up their lands to private purchasers-who by being made drunk, have given a thousand-nay, I might say 10,000 acres, for the trifling sum of six pence-It is with true concern, with grief I tell you, that I have waited with pain to come to this part of the plan-because, I observed Gentlemen admitted its being defective-and I had my hopes-would have proposed amendments-but this part they have defended-and this convinces me of the necessity of obtaining amendments before it is adopted: They have defended it with ingenuity and perseverence-but by no means satisfactory. If previous amendments are not obtained, the trial by jury is gone: British debtors will be ruined by being dragged to the Federal Court-and the liberty and happiness of our citizens gone-never again to be recovered.
Mr. Stephen-Mr. Chairman.-The Gentleman, Sir, means to frighten us by his bugbears and hobgoblings-his sale of lands to pay taxes- Indian purchases, and other horrors, that I think I know as much about as he does. I have travelled through the greater part of the Indian countries; I know them well, Sir.-I can mention a variety of resources by which the people may be enabled to pay their taxes.- (He then went into a description of the Mississippi and its waters, Cooke's river, the Indian tribes residing in that country, and the variety of articles which might be obtained to advantage by trading with these people-I know, Mr. Chairman, of several rich mines of gold and silver in the Western country and will the Gentleman tell me that these precious metals will not pay taxes? If the Gentleman does not like this Government, let him go and live among the Indians; I know of several nations that live very happy-and I can furnish him with a vocabulary of their language.
Mr. George Nicholas observed, that he should only make a few observations on the objections that had been stated to the clauses now under consideration-and not renew the answer already given. The Gentleman says, he would admit some parts of the Constitution-but that he would never agree to that now before us. I beg Gentlemen, when they retire from these walls, that they would take the Constitution, and strike out such parts as the Honorable Gentleman (Mr. Henry) has given his approbation to, and they will find what a curious kind of Government he would make of it. It appears to me, Sir, that he has objected to the whole-and that no part, if he had his way, would be agreed to. It has been observed, Sir, that the Judges appointed under the British Constitution, are more independent than those to be appointed under the plan on the table. This, Sir, like other assertions of Honorable Gentlemen, is equally groundless-
May there not be a variety of pensions granted to the judges in England, so as to influence them-and cannot they be removed by a vote of both Houses of Parliament? This is not the case with our Federal judges- they are to be appointed during good behavior, and cannot be removed-and at stated times are to receive a compensation for their services.3
We are told, Sir, of fraudulent assignments of bonds-Do Gentlemen suppose, that the Federal Judges will not see into such a conduct, and prevent it? Western claims are to be revived too-new suits commenced in the Federal Courts for disputes already determined in this State.-This, Sir, cannot be, for they are already determined under the laws of this State, and therefore are conclusive. But, Sir, we are told, that two executions are to issue-one from the Federal Court, and one from the State Court: Do not Gentlemen know, Sir, that the first execution is good and must be satisfied, and that the debtor cannot be arrested under the second execution? Quitrents too, Sir, are to be sued for. To satisfy Gentlemen, Sir, I beg leave to refer them to an act of Assembly passed in the year 1782, before the peace, which absolutely abolishes the quitrents, and discharges the holders of lands in the Northern Neck from any claim of that kind.-He then read the act alluded to-As to the claims of certain companies who purchased lands of the Indians, they were determined prior to the opening of the Land-Office by the Virginia Assembly-and it is not to be supposed they will again renew their claim. But, Sir, there are Gentlemen who have come by large possessions, that it is not easily to account for-Here Mr. Henry interfered, and hoped the Honorable Gentleman meant nothing persona1)1-Mr. Nicholas observed, I mean what I say, Sir. But we are told of the Blue Laws of Massachusetts- are these to be brought in debate here? Sir, when the Gentleman mentioned them the day before yesterday I did not well understand what he meant, but from enquiry find, Sir, they were laws made for the purpose of preserving the morals of the people, and took the name of Blue Laws from their being written on blue paper: But how does this apply to the subject before you? Is this to be compared to the plan now on the table? Sir, this puts me in mind of an observation I have heard out of doors which was, that because the New-England- men wore black stockings and plush breeches, there can be no union with them. We have heard a great deal of the trial by jury-a design to destroy the State Judiciaries, and the destruction of the State Governments. This, Sir, has already been travelled over, and I think sufficiently explained, to render it unnecessary for me to trouble the Committee again on the subject.
Mr. Henry-Mr. Chairman-If the Gentleman means personal insinuations-or to wound my private reputation-I think this an improper place to do so. If on the other hand, he means to go on in the discussion of the subject, he ought not to apply arguments which might tend to obstruct the discussion. As to land matters, I can tell how I came by what I have-but I think that Gentleman (Mr. Nicholas) has no right to make that enquiry of me. I mean not to offend any one-I have not the most distant idea of injuring any Gentleman-my object was to obtain information-If I have offended in private life, or wounded the feelings of any man, I did not intend it-I hold what I hold in right and in a just manner. I beg pardon, Sir, for having intruded thus far.
Mr. Nicholas-Mr. Chairman-I meant no personality in what I said, nor did I mean any resentment., If such conduct meets the contempt of that Gentleman, I can only assure him, it meets with an equal degree of contempt from me.
Mr. President observed, that he hoped Gentlemen would not be personal, that they would proceed to investigate the subject calmly, and in a peaceable manner.
Mr. Nicholas replied, that he did not mean the Honorable Gentleman (Mr. Henry) but he meant those who had taken up large tracts of land in the Western country. The reason he would not explain himself before was, that he thought some observations dropped from the Honorable Gentleman, as ought not to have come from one Gentleman to another.
Mr. Monroe,-Mr. Chairman.-I am satisfied of the propriety of closing this subject, Sir, but I must beg leave to trouble the Committee a little farther. We find, Sir, that two different Governments are to have concurrent jurisdiction in the same object. May not this bring on a conflict in the Judiciary? and if it does, will it not end in the ruin of one or the other? There will be two distinct judiciaries-one acting under the Federal authority, the other the State authority. May it not also tend to oppress the people by having suits going on against them in both Courts for the same debt?
Mr. Madison answered Mr. Monroe, by observing, that the County- Courts were perfectly independent of each other, where the same inconvenience might arise: The States are also independent of each other. We well know, Sir, that foreigners cannot get justice done them, in these Courts, and this has prevented many wealthy Gentlemen from trading or residing among us. There are also many public debtors who have escaped from justice, for want of such a method as is pointed out in the plan on the table. To prevent any interference of the Federal and State Judiciaries, the Judges of the States may be deprived of holding any office in the General Government.
Mr. Grayson observed, that the Federal and State Judiciaries, could not on the present plan be kept in perfect harmony. As to the trial by jury being safer here than in England, that I deny. Jury trials are secured there, Sir, by Magna Charta, in a clear and decided manner; and that here it is not in express and positive terms, is admitted by most Gentlemen who now hear me. He concluded with saying, that he did not believe there existed a social compact upon the face of the earth, so vague, and so indefinite, as the one now on the table.
Mr. Henry went into an explanation of the trial by jury, and the difference between the new plan and our Bill of Rights, and observed, that the latter had been violated by several acts of Assembly, which could only be justified by necessity: He begged Gentlemen to consider how necessary it was to have that invaluable blessing secured: Those feeble implications, relative to juries in the new plan, might create the unhappy tendency of factions in a Republican Government; which nothing but a Monarchy could suppress. As to people escaping with public money, the Gentleman must know that bond and security is always taken on occasions where men are entrusted with the collection of it, and these can follow them, and be sued for and recovered in another State, or wherever they may escape to.
Mr. Madison observed, that the declaration on that paper could not diminish the security of the people, unless a majority of their Representatives should concur in a violation of their rights.
Mr. George Mason.-Mr. Chairman.-I should not have troubled the Committee again on this subject, were there not some arguments in support of that plan, Sir, that appear to me totally unsatisfactory. With respect to concurrent jurisdiction, Sir, the Honorable Gentleman Games Madison] has observed, that County Courts had exercised this right without complaint. Have Hanover and Henrico the same objects? Can an officer in either of those counties, serve a process in the other?-The Federal Judiciary has concurrent jurisdiction throughout the States, and therefore must interfere with the State Judiciaries. Congress can pass a law constituting the powers of the Federal judiciary throughout the States: They may also pass a law vesting the Federal power in the State Judiciaries: These laws are permanent and cannot be controverted by any law of the State. If we were forming a General Government and not States, I think we would perfectly comply with the genius of the paper before you; but if we mean to form one great national Government for thirteen States, the arguments which I have heard hitherto in support of this part of the plan do not apply at all. We are willing to give up all powers which are necessary to preserve the peace of the Union, so far as respects foreign nations, or our own preservation; but we will not agree to a Federal Judiciary, which is not necessary for this purpose, because the powers there granted will tend to oppress the middling and lower class of people.- A poor man seized by the Federal officers and carried to a Federal Court, has he any chance under such a system as this? Justice itself may be bought too dear; yet this may be the case. It may cost a man 500 1. to recover 100 1. These circumstances are too sacred to leave undefined, and I wish to see things certain, positive and clear. But, however, Sir, these matters have been so fully investigated, that I beg pardon for having intruded so far, and I hope we shall go on in the business.
(The 1st section, of the 4th article, read.)
Mr. George Mason,-Mr. Chairman.-The latter part of this clause, Sir, I confess I do not understand: Full faith and credit shall be given to all acts; and how far it may be proper that Congress shall declare the effect, I cannot clearly see into.
Mr. Madison,-Mr. Chairman.-It appears to me, that this is a clause which is absolutely necessary. I never heard any objection to this clause before, and have not employed a thought on the subject
Mr. George Mason,-Mr. Chairman.-On some former part of the investigation of this subject, Gentlemen were pleased to make some observations on the security of property coming within this section. It was then said, and I now say, that there is no security, nor have Gentlemen convinced me of this.
Mr. Grayson,-Mr. Chairman.-It appears to me, Sir, under this section, there never can be a Southern State admitted into the Union. There are seven States, who are a majority, and whose interest it is to prevent it: The balance being actually in their possession, they will have the regulation of commerce, and the Federal ten miles square wherever they please. It is not to be supposed then, that they will admit any Southern State into the Union, so as to lose that majority.
Mr. Madison replied, that he thought this part of the plan more favourable to the Southern States than the present Confederation, as there was a greater chance of new States being admitted.
Mr. George Mason took a retrospective view of several parts which had been before objected to. He endeavoured to demonstrate the dangers that must inevitably arise from the insecurity of our rights and privileges; as they depended on vague, indefinite, and ambiguous implications. The adoption of a system so replete with defects, he apprehended, could not but be productive of the most alarming consequences. He dreaded popular resistance to its operation. He expressed in emphatic terms, the dreadful effects which must ensue, should the people resist; and concluded by observing, that he trusted Gentlemen would pause before they would decide a question which involved such awful consequences.
Mr. Lee, of Westmoreland-Mr. Chairman.-My feelings are so oppressed with the declarations of my honorable friend, that I can no longer suppress my utterance. I respect the Honorable Gentleman, and never believed I should live, to have heard fall from his lips, opinions so injurious to our country, and so opposite to the dignity of this Assembly. If the dreadful picture which he has drawn, be so abhorrent to his mind as he has declared, let me ask the Honorable Gentleman, if he has not pursued the very means to bring into action, the horrors which he deprecates? Such speeches within these walls, from a character so venerable and estimable, easily progress into overt acts, among the less thinking and the vicious. Then, Sir, I pray you to remember, and the Gentlemen in opposition not to forget, that should these impious scenes commence, which my honorable friend might abhor, and which I execrate, whence and how they began. God of Heaven avert from my country the dreadful curse; but if the madness of some, and the vice of others, should risk the awful appeal, I trust that the friends to the paper on your table, conscious of the justice of their cause, conscious of the integrity of their views, and recollecting their uniform moderation, will meet the afflicting call with that firmness and fortitude, which become men summoned to defend what they conceive to be the true interest of their country, and will prove to the world, that although they boast not in words of love of country, and affection for liberty, still they are not less attached to these invaluable objects, than their vaunting opponents, and can with alacrity and resignation encounter every difficulty and danger in defence of them.
The remainder of the Constitution was then read, and the several objectionable parts noticed by the opposition; particularly that which related to the mode pointed out by which amendments were to be obtained; and after discussing it fully, The Committee rose-And on motion, Resolved, That this Convention will, to-morrow, again resolve itself into a Committee of the whole Convention, to take into farther consideration, the proposed Constitution of Government.
And then the Convention adjourned until to-morrow morning, nine o'clock.