122

THE FEDERAL COURTS.

intact. No one had claimed that the government of the United States would have power to make laws on every subject. Congress could not go beyond its delegated powers, and a law unwarranted by any of the powers enumerated in the Constitution would be considered by the judges as an infringement of it, and would be declared void.

The objection that the federal judiciary would annihilate the State courts was sufficiently answered by the State dockets, which were so crowded with suits that the life of a man would not see them ended. Certainly the trial of some of these cases in other courts would neither be wrong nor leave the State courts without sufficient business. If the power was not given to the federal judiciary, the Constitution would not be protected from infringe

ment.

Mason claimed that federal officers would find protection for their misdeeds in the federal courts, an objection which Marshall pronounced unreasonable. The discrimination between the cases of chancery, admiralty and common law, he said, could well be left to Congress. It would neither enlarge its powers nor endanger the public, and he remarked with characteristic insight: "Where power may be trusted, and there is no motive to abuse it, it seems to me to be as well to leave it undetermined as to fix it in the Constitution." To suppose that a sovereign State would be dragged before a federal court,1 he said, was not rational. The intent of the judicial article, in this particular, was to enable States to recover claims of individuals residing in other States. The words, he

1 This idea was at the basis of Justice Iredell's dissenting opinion in Chisholm vs. Georgia; 2 Dallas, 419; and also of the Eleventh Amendment; see the account of this amendment post, pp. 264-291.

STATES AND FOREIGN POWERS.

said, warranted this construction.

123

But it was said there

would be partiality, if the suit could not be defended,—if an individual could not proceed to obtain judgment against a State though he might be sued by a State. This was necessary and could not be avoided. Marshall could see a difficulty in making a State defendant which did not prevent its being plaintiff. If an individual should have a just claim against any particular State, it was to be presumed that on application to its legislature he would obtain satisfaction.1

He conceded that the provision permitting citizens of one State to institute suits against those of another was not without objections, but they might be carried too far. The independence of the judges forbade any deviation from justice in the federal courts, and the provision might be necessary in cases arising in the regulation of commerce, and in cases of debt. The provision, as it stood, did not change the laws of evidence or the principles governing the control of cases, which would be determined by the laws of the State in which the contract was made; a principle well established in the jurisprudence of all the States. It was to preserve the peace of the Union that this jurisdiction had been given.2 To Mason's objection to federal jurisdiction in controversies between a State and a foreign State, Marshall answered that as the previous consent of the parties was necessary, a trial in the federal court could not violate justice; and if the federal judiciary thought a claim against a commonwealth unjust, the foreign State would be barred. That the jurisdiction in equity and admiralty cases

1 Id., 555-556. It was on this ground that the Eleventh Amendment was added to the Constitution in 1798; see an account of its adoption, post, pp. 264-291.

2 Id., 557.

124

LACK OF A BILL OF RIGHTS.

should extend both to law and fact coincided with the practice of the States. The Constitution empowered Congress to make whatever exceptions it might judge best as to law and fact in the appellate jurisdiction of the Supreme Court, and these exceptions would be determined by the interest and liberty of the people.1

Henry had likened the establishment of inferior federal tribunals, with jurisdiction over controversies between citizens of a State and foreign citizens, to a retrospective law.2 Marshall answered that there was a difference between the creation of a tribunal to give justice and effect to an existing right, and the creation of a right that did not exist before. An individual is bound by his contracts, and the creation of a new court would not amount to a retrospective law. Both Mason and Henry had made much of the omission of a clause providing for a trial by jury; and both had cited the Constitution of Virginia as the proper model. Marshall answered that it was the Bill of Rights in the Virginia Constitution that directed trials to be by jury, yet this was no security, for the Bill of Rights was not a part of the Constitution.* The proposed national Constitution did not exclude Congress from giving a trial by jury in civil cases, and in this respect was like the government of Virginia. The Virginia Legislature did not give a trial by jury where it was unnecessary, but wherever it was thought expedient; Congress would do the same, as it was founded on the same principle.5

Chancellor Wythe, who had not participated in the dis

3 Constitution, 1776; Bill of Rights, section eleven.

4 Id., 561.

5 Id., 561.

THE CONSTITUTION A COMPACT.

125

cussion, and who, because of sickness in his family, had left the Federal Convention before the signing of the Constitution, was a firm supporter of it in Virginia, but now, after a careful comparison between it and the Articles, he admitted its imperfections and the propriety of some amendments. Experience would develop the plan and show where alterations were necessary. The critical situation of America and the extreme danger of dissolving the Union rendered it necessary, in his judgment, to adopt it first and amend it afterward. This could easily be done in the manner proposed by the Constitution, as amendments were desired by the States and had already been proposed by several. He then moved that the Constitution should be ratified, and whatsoever amendments might be necessary should be recommended to the consideration of the first Congress under the Constitution.1

Henry objected to this procedure, because it would admit that the new system was defective in the most essential particulars; therefore, its defects should first be remedied. All agreed that the Constitution was a compact, yet it was contrary to the experience of the whole world to enter into a compact and afterwards to settle its terms.2 Henry's plan was to refer a Declaration of Rights, and amendments to the most exceptional parts of the Constitution, to the other States in the Confederacy for their consideration, previous to ratification; and he submitted a Declaration and amendments which, with slight modification, were ultimately adopted. As the prospect of ratification became brighter, Henry became.

1 Id., 587; June 24, 1788.

2 Id., 591. 3 Id., 593.

4 Id., 657-661. The Declaration of Rights contained twenty articles and the amendments twenty also. As to the extent of their incorporation in the first ten amendments, see pp. 199-264.

126

POWER TO ABOLISH SLAVERY.

more vehement and aggressive. He saw no danger of disunion among the States, but the Constitution would inevitably produce it. Both New York and North Carolina would never accede to the plan till it was amended, and a great part of Virginia, meaning Kentucky, was decidedly against it as it stood. Virginia had proposed the Convention at Annapolis and that of Philadelphia, but if she assented to the Constitution she would lose her preeminence; and he gave notice that he would have no hand in subsequent amendments. His language was so vehement that Randolph interpreted it as advocating secession unless previous amendments were adopted.1

As a last resort Henry attacked the clause limiting the slave trade, as proof that the Constitution gave Congress the power to abolish slavery and to provide for the enrollment of black men in the army.2 While he deplored slavery he believed that prudence forbade its abolition. The general government ought not to set the negroes free, because the majority of the States were not in sympathy with emancipation, but he clearly saw the political and social condition of the country when he observed that the majority of Congress would come from the North, while the slaves were in the South.*

3

The clause empowering Congress to prohibit the slave trade after 1808, he said, would jeopardize the property of the people of Virginia, and put it into the hands of

1 Id., 597.

2 Id., 590.

3 For a history of the attitude of the States toward the negroes free and slave, see my Constitutional History of the American People, 1776-1850, I, Chapters vii and xii; and II, Index, "Negroes and Slavery."

4 In 1790, there were seven free States and five slave-holding, and the House of Representatives consisted of thirty-five members from the free States and thirty from the slave.