Chapter V: In the Constitutional Convention of Virginia (1788)

The election of Mr. Marshall to the Virginia Convention of 1788, called to ratify or reject the Constitution proposed for the United States, was a marked tribute to his abilities on the part of the people of Henrico County, then comprising the city of Richmond, and was also striking evidence of his great personal popularity among them. For a decided majority of them were warmly enlisted in opposition to the proposed Constitution. The Revolution indeed was over, and peace, with independence, had been achieved; but the whole country was in a state of great agitation as well as of profound depression and exhaustion, after the severe ordeal of the war. The advent of peace seemed to make more apparent the impoverishment caused by the war, and to bring unexpected difficulties and novel anxieties. Industry was paralyzed; business almost at a stand; the national finances scarcely existed except so far as debts might be said to constitute them; those States which had made great sacrifices to pay their quota of contribution to the public service had been driven to the ruinous resort of issuing a paper currency for this purpose and for their own immediate wants; more than three hundred millions of paper money had been put into circulation by the Continental Congress, bearing on its face a solemn pledge of the faith of the Union for its due payment, which faith had been as notoriously violated. This money had fallen so low in market value that it required one hundred dollars of it to pay one real dollar of indebtedness, and it soon lost even the semblance of any value at all. The little specie that had lingered in the country had been slowly drained from it to pay for absolutely necessary supplies from abroad. Not even the interest on the national debt was met. The army had been disbanded unpaid, and the just claims of those brave men who had won our independence were heard only to be unheeded. Private credit was generally hardly better than public. Agriculture and commerce those breasts of the state were dried up, and our artisans were idle and starving.

Under such circumstances the popular murmurs of discontent were deep and loud, and were only restrained from developing into overt acts of intestine strife by the wisdom and moderation of the best men and most influential patriots of the land. As Judge Story justly remarks in his striking picture of these times:

“In short, we seemed to have escaped from the parent country only to sink into a more galling domestic bondage. Our very safety was felt to be mainly dependent upon the jealousy or forbearance of foreign governments.”

A further aggravation of these evils arose from the utter hopelessness of any remedy or redress by the then existing national government. That government, created by the Articles of Confederation, was a temporary expedient to unite the States in the maintenance of the war, and was not at all adapted to the changed condition of affairs when that struggle was over. It possessed scarcely any of the attributes of an efficient administration, and was in fact a government only in name.

In view of such known and demonstrated imbecility, it seems strange at this day that the Articles of Confederation should have found any advocates or apologists of their longer endurance. Nevertheless, the fact remains to surprise us that a large party in Virginia and other Southern States, in some of them even a majority of the people, comprising men of intelligence and influence who had borne prominent and distinguished parts in the late war of independence, at the first presentation of the subject arrayed itself in open opposition to any effort to found a new and more efficient government. These persons insisted that the States were fully competent to administer national affairs under the existing articles, with some unimportant amendments. It is easy to believe, from what we have already learned of his antecedents, that Mr. Marshall was not of this party. On the contrary, he lost no fit opportunity to declare his open advocacy of the call for a general convention of the States, and subsequently to make known his warm support of the Constitution which that convention framed. He took this position from an honest and intrepid conviction that it was wise and right, and without any calculation or consideration of the consequences, in the event of its unpopularity with the voters. As it was almost certain that in Henrico County, where he then resided, a strong majority were opposed to the ratification of the Constitution, he had little expectation of being a member of the convention. Ardently desirous that the Constitution should be adopted, he had taken an active part in the discussion of its necessity in the General Assembly of Virginia, and before the people in those popular meetings which had been held in all parts of the country to consider and discuss its provisions. When it was known that a majority of the people of Henrico were opposed to it, he was assured that if he would become a candidate, and would pledge himself to vote against it, all opposition to him would be withdrawn; otherwise, he was forewarned that his election would be strenuously contested. He did not hesitate a moment. He discarded the unworthy proposition, and proclaimed his firm determination to vote for the Constitution if he should get the chance. Under these unpromising circumstances he was pressed into the canvass for a seat in the convention, and it was matter of astonishment to himself and his most sanguine friends when the result of the polling showed his triumphant election by a handsome majority. He said afterward : “In the course of the session of 1788, the increasing efforts of the enemies of the Constitution made a deep impression; and before its close a great majority showed a decided hostility to it. I took an active part in the debates on this question, and was uniform in the support of the proposed Constitution.”

Apparently this election of a representative by a constituency opposed to his well-known views was the extraordinary result of his personal popularity. Very popular he certainly was, so that perhaps no man in Virginia was more so, and he continued to enjoy the same favor through out his long and useful life. He was eminently fitted by his character and temper to secure without solicitation, and to retain without artifice, the public esteem and the personal confidence and friendship of all who knew him. His placid and genial disposition, his singular modesty, his generous heart, his kindly and unpretentious manners, the scrupulous respect he showed for the feelings and opinions of all men, his freedom from pride and affectation, from humility to the proud and from pride towards the humble, his candor, moderation, and integrity, formed such a character that it might be said of him, as of Nathanael of old: “Behold an Israelite indeed, in whom is no guile.” These qualities, united to a higher intelligence and a larger measure of wisdom and common sense than fell to the share of most men, naturally conciliated the confidence and fixed the regard of his fellow men. Though party spirit and the political excitements of the hour strongly tended to swerve men from their equilibrium and to blind their judgments, he was able to keep the even tenor of his way, unperturbed by the tempests of passion or prejudice which raged round him.

In view of the object of its convocation, and of the material which formed the membership of the body, it may be safely said that no deliberative assembly ever met in any State more imposing for character, or more renowned for the moral and intellectual gifts and endowments which adorned it, than this convention of 1788. It presented the very flower of the best population of the ancient commonwealth. The men of education, wealth, and probity, who had attained the highest rank in their several callings, who were most esteemed for purity of character and the elevation of their social relations, had been chosen. Nearly all of them, of both parties, had been engaged in the war for independence, and had served their country in the field or in the legislative or executive councils of the State. They had come up out of great tribulation through the storms and convulsions of war, and bore honorable scars, attesting the severity and sincerity of their self-consecration to the cause of liberty. They were not likely to undervalue the momentous task before them, in laying the foundations of an entirely new government and establishing the polity of a nation.

The convention met at Richmond on the 2d of June, 1788. The fame of the members who composed it, and the unrivaled eloquence of the speakers who were to take part in the discussion of questions of such magnitude, created a vast expectation in the public mind, and attracted large audiences to the place of meeting. The facile pen of Wirt has preserved to us, in his “Life of Patrick Henry,” a graphic picture of the gathering and of its debates. He says:

“Industry deserted its pursuits, and even dissipation gave up its objects, for the superior enjoyments which were presented by the hall of the convention. Not only the people of the town and neighborhood, but gentlemen from every quarter of the State, were seen thronging to the metropolis and speeding their eager way to the building in which the convention held its meetings. Day after day, from morning till night, the galleries of the house were continually filled with an anxious crowd, who forgot the inconvenience of their situation in the excess of their enjoyment; and far from giving any interruption to the course of the debate, they increased its interest and solemnity by their silence and attention. No bustle, no motion, no sound was heard among them, save only a slight movement when some new speaker arose whom they were all eager to see as well as to hear, or when some master-stroke of eloquence shot thrilling along their nerves and extorted an involuntary and inarticulate murmur. Day after day was this banquet of the mind and of the heart spread before them with a delicacy and variety which could never cloy.”

When we enumerate on the one side, among those who opposed the ratification of the Constitution, men of such fame as Patrick Henry, George Mason, and William Grayson, an union of eloquence, learning, and ability unsurpassed and but rarely equaled, and behold in the opposite ranks the venerable Edmund Pendleton (who presided over their deliberations), James Madison, and Edmund Randolph, the governor of the commonwealth, James Innes, the attorney-general of Virginia, a gentleman of known accomplishments and great eloquence, “an eloquence,” said Patrick Henry, “ splendid, magnificent, and sufficient to shake the human mind,”- Henry Lee of Westmoreland, George and William Nicholas, and John Marshall, then but thirty-three years of age, yet well known to fame, it is not surprising that the public mind of Virginia was shaken to its center by this conflict of the giants among her sons.

As Mr. Marshall, although he had deeply pondered the great questions presented for consideration and debate, was always more willing to listen than to speak, and as he recognized and admitted the greater experience in public affairs, and the excellent abilities, of the leaders on his side, he was not anxious himself to descend into the arena and personally to contend for the laurels of victory. When he did speak, however, during the twenty-five days of the session, he directed his reply chiefly to Mr. Henry’s speeches, rightly judging him to be the great leader of his party, and concluding that, if this Coryphaeus of the opposition were answered, all other assailants of the Constitution were silenced. We shall lay before the reader, gleaned from the official report of the debates, some examples, taken from Marshall’s speeches, of his logical methods in argument. It would be desirable to give some satisfactory sketch of his style and manner when fairly launched in debate, but all accounts concur that it was so peculiar as to make description difficult if not impracticable. All agree, however, that it was very effective. He was in all respects a contrast to Mr. Henry, whose oratorical abilities were almost unrivaled. Henry was full of fire, passion, and impetuosity; he was by no means devoid of the power of vigorous conception and clear expression, but his style and manner, especially in his exordium, were by no means prepossessing or inspiring. A clever writer, [1] speaking of these times, thus describes Mr. Marshall as a speaker:

“So great a mind, perhaps, like large bodies in the physical world, is with difficulty set in motion. That this is the case with Mr. Marshall is manifest from his mode of entering on an argument, both in conversation and in public debate. It is difficult to rouse his faculties. He begins with reluctance, hesitation, and vacancy of eye. Presently his articulation becomes less broken, his eye more fixed, until finally his voice is full, clear, and rapid, his manner bold, and his whole face lighted up with mingled fires of genius and passion, and he pours forth the unbroken stream of eloquence in a current, deep, majestic, smooth, and strong. He reminds one of some great bird, which flounders on the earth for a while before it acquires impetus to sustain its soaring flight.”

The debates in the convention took a wide and discursive range, but Mr. Marshall was averse, from habit, to general disquisition and logical platitudes. Preferring directness and concentration in reasoning, he selected for his own discussion three features in the proposed Constitution, with which he was best acquainted and which its opponents deemed most vulnerable. These were, first, the power granted to Congress to lay taxes for the support of the general government, without relegating that duty to the States. Second, the power given to the President to call out the militia. Third, the judicial power conferred on the federal government. These had been strongly denounced as destructive to the rights and even the existence of the States. On these several points he spoke with much earnestness and force. After a brief general survey of the principles of true government, and after pointing out that the real issue involved in these debates was a choice between despotism and democracy, he pursues the inquiry as to the safety of conferring power on Congress to raise money by taxation, to enable it to perform its functions, in the following terms:

“I conceive that the object of the discussion now before us is, whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it because we think it a well-regulated democracy. It is recommended to the good people of this country; they are through us to declare whether it be such a plan of government as will establish and secure their freedom.

“Permit me to attend to what the honorable gentleman [Patrick Henry] has said. He has expatiated on the necessity of a due attention to certain maxims; to certain fundamental principles, from which a great people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in any government, but more essential to a democracy than to any other. What are the favorite maxims of democracy ? A strict observance of justice and public faith, and a steady adherence to virtue. These, sir, are the principles of a good government. No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith.

“Would to Heaven that these principles had been observed under the present government! Had this been the case, the friends of liberty would not be so willing now to part with it. Can we boast that our government is founded on these maxims ? Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by an act of Assembly, struck out of existence without trial by jury, without examination, without being confronted by his accusers and witnesses, without the benefits of the law of the land ? Where is our safety when we are told that this act was justifiable, because the person was not a Socrates? What has become of the worthy member’s maxims ? Is this one of them? Shall it be a maxim that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering that the man’s life was not taken secundum artem, because he was a bad man? [2] Shall it be a maxim that government ought not to be empowered to protect virtue? He says we wish to have a strong, energetic, powerful government. We contend for a well-regulated democracy. He insinuates that the power of the government has been enlarged by the convention, and that we may apprehend it will be enlarged by others. The convention did not, in fact, assume any power. They have proposed to our consideration a scheme of government, which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several gentlemen already demonstrated that the convention did not exceed its powers? But the Congress have the power of making bad laws, it seems. The Senate with the President, he informs us, may make a treaty which shall be disadvantageous to us; and that, if they be not good men, it will not be a good constitution. I shall ask the worthy member only, if the people at large, and they alone, ought to make laws and treaties? Has any man this in contemplation ? You cannot exercise the powers of government personally yourselves. You must trust to agents. If so, will you dispute giving them the power of acting for you, from an existing possibility that they may abuse it? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, because there is a possibility of their abusing it, you can have no government; for the power of doing good is inseparable from that of doing evil.

“Let me pay attention to the observation of the gentleman who was last up [Mr. Monroe], that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this house. This power I think essentially necessary; for without it there will be no efficiency in the government. We have had a sufficient demonstration of the vanity of depending on requisitions. How, then, can the general government exist without this power? The possibility of its being abused is urged as an argument against its expediency. To very little purpose did Virginia discover the defects in the old system; to little purpose indeed did she propose improvements; and to no purpose is this plan constructed for the promotion of our happiness, if we refuse it now because it is possible it may be abused. The Confederation has nominal powers, but no means to carry them into effect. If a system of government were devised by more than human intelligence it would not be effectual if the means were not adequate to the power. All delegated powers are liable to be abused. Arguments drawn from this source go in direct opposition to all government, and in recommendation of anarchy. The friends of the Constitution are as tenacious of liberty as its enemies. They wish to give no power that will endanger it. They wish to give the government powers to secure and protect it. Our inquiry here must be, whether the power of taxation be necessary to perform the objects of the Constitution, and whether it be safe, and as well guarded as human wisdom can do it. What are the objects of the national government? To protect the United States and to promote the general welfare. Protection in time of war is one of its primal objects. Until mankind shall cease to have avarice and ambition, wars shall arise. There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose? But the honorable gentleman says that we need not be afraid of war. Look at history, which has been so often quoted. Look at the great volume of human nature. They will both tell you that a defenseless country cannot be secure. The nature of man forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The powers of Europe are jealous of us. It is our interest to watch their conduct, and guard against them. They must be pleased with our disunion. If we invite them, by our weakness, to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place. It is then necessary to give the government that power, in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared. The experience of the world, a knowledge of human nature, and our own particular experience, will confirm this truth. When danger shall come upon us, may we not do what we were on the point of doing once already, that is, appoint a dictator? … We may now regulate and frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. If we are prepared to defend ourselves, there will be little inducement to attack us. But if we defer giving the necessary power to the general government till the moment of danger arrives, we shall give it then and with an unsparing hand.

“I defy you to produce a single instance where requisitions on several individual States, composing a confederacy, have been honestly complied with. Did gentlemen expect to see such punctuality complied with in America ? If they did, our own experience shows the contrary.” …“A bare sense of duty or a regard to propriety is too feeble to induce men to comply with obligations. ”We deceive our selves, if we expect any efficacy from these. If requisitions will not avail, the government must have the sinews of war some other way. Requisitions cannot be effectual. They will be productive of delay, and will ultimately be inefficient. By direct taxation the necessities of the government will be supplied in a peaceable manner, without irritating the minds of the people. But requisitions cannot be rendered efficient without a civil war, without great expense of money and the blood of our citizens.”

“Is the system so organized as to make taxation dangerous ? … I conceive its organization to be sufficiently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the House of Representatives. If there be no impropriety in the mode of electing the representatives, can any danger be apprehended ? They are elected by those who can elect representatives in the state legislature. How can the votes of the electors be influenced ? By nothing but the character and conduct of the men they vote for.”

“If they are to be chosen for their wisdom, virtue, and integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it? Will not such abuse militate against their own interest? Will not they and their friends feel the effects of iniquitous measures? Does the representative remain in office for life? Does he transmit his title of representative to his son? Is he secured from the burdens imposed on the community ? To procure their reelection it will be necessary for them to confer with the people at large and convince them that the taxes laid are for their good. If I am able to judge on the subject, the power of taxation now before us is wisely conceded, and the representatives wisely elected.”

“The extent of the country is urged as another objection, as being too great for a republican government. This objection has been handed from author to author, and has been certainly misunderstood and misapplied. To what does it owe its source? To observations and criticisms on governments where representations did not exist. As to the legislative power, was it ever supposed inadequate to any extent? Extent of country may render it difficult to execute the laws, but not to legislate. Extent of country does not extend the power. What will be sufficiently energetic and operative in a small territory will be feeble when extended over a wide-extended country. The gentleman tells us there are no checks in this plan. What has become of his enthusiastic eulogium on the American spirit? We should find a check and control, when oppressed, from that source. In this country there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own. When he desires such checks as these, he will find them abundantly here. They are the best checks. What has become of his eulogium on the Virginia Constitution? Do the checks in this plan appear less excellent than those of the Constitution of Virginia? If the checks in the Constitution be compared to the checks in the Virginia Constitution, he will find the better security in the former.”

“The worthy member [Patrick Henry] has concluded his observations by many eulogiums on the British Constitution. It matters not to us whether it be a wise one or not. I think that, for America at least, the government on your table is very much superior to it. I ask you if your House of Representatives would be better than it is if a hundredth part of the people were to elect a majority of them? If your senators were for life, would they be more agreeable to you? If your president were not accountable to you for his conduct, if it were a constitutional maxim, that he could do no wrong, would you be safer than you are now ? If you can answer Yes to these questions, then adopt the British Constitution. If not, then, good as that government may be, this is better.

“The worthy gentleman who was last up [Monroe] said the confederacies of ancient and modern times were not similar to ours, and that consequently reasons which applied against them could not be urged against it. Do they not hold out one lesson very useful to us ? However unlike in other respects, they resemble it in its total inefficacy. They warn us to shun their calamities and to place in our government those necessary powers, the want of which destroyed them. I hope we shall avail ourselves of their misfortunes without experiencing them. There was something peculiar in one observation he made. He said that those who governed the cantons of Switzerland were purchased by foreign powers, which was the cause of their uneasiness and trouble. How does this apply to us? If we adopt such a government as theirs, will it not be subject to the same inconvenience? Will not the same cause produce the same effect ? What shall protect us from it? What is our security ? He then proceeded to say, the causes of war are removed from us; that we are separated by the sea from the powers of Europe and need not be alarmed. Sir, the sea makes them neighbors to us. Though an immense ocean divides us, we may speedily see them with us. What dangers may we not apprehend to our commerce? May not the Algerines seize our vessels? Cannot they, and every other predatory and maritime nation, pillage our ships and destroy our commerce, without subjecting themselves to any inconvenience? He would, he said, give the general government all necessary powers. If anything be necessary, it must be so to call forth the strength of the Union when we may be attacked, or when the general purposes of America require it. The worthy gentleman then proceeded to show that our present exigencies are greater than they will ever be again. Who can penetrate into futurity? How can any man pretend to say that our future exigencies will be less than our present? The exigencies of nations have been generally commensurate to their resources. It would be the utmost impolicy to trust to a mere possibility of not being attacked, or obliged to exert the strength of the community.”

“He then told you that your continental government will call forth the virtue and talents of America. This being the case, will they encroach on the power of the state governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people ? Will the most virtuous act the most wickedly? I differ in opinion from the worthy gentleman. I think the virtue and talents of the members of the general government will tend to the security, instead of the destruction, of our liberty. I think that the power of direct taxation is essential to the existence of the general government, and that it is safe to grant it. If this power be not necessary and as safe from abuse as any delegated power can possibly be, then I say that the plan before us is unnecessary, for it imports not what system we have unless it have the power of protecting us in time of peace and war.”

In respect to the power conferred on the President to call out the militia, to repel invasion, and to suppress insurrection, etc., Mr. Marshall asked, in reply to the critics of the Constitution, whether gentlemen were serious when they asserted that, if the state governments had power to interfere with the militia, it was only by implication.

“If they were, he asked the committee whether the least attention would not show that they were mistaken. The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given to it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the States, as they had not given it away ? For does not a power remain until it is given away ? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away.”

“The truth is, that when power is given to the general legislature, if it was in the state legislature before, both shall exercise it, unless there be an incompatibility in the exercise by one to that by the other, or negative words precluding the state governments from it. But there are no negative words here. It rests, therefore, with the States. To me it appears then unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they would have done before its adoption.

“When the government is drawn from the people and depending on the people for its continuance, oppressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this government, thus depending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentlemen. I cannot help being surprised that the worthy member thought this power so dangerous. What government is able to protect you in time of war? Will any State depend on its own exertions? The consequence of such dependence and withholding this power from Congress will be that State will fall after State, and be a sacrifice to the want of power in the general government. United we are strong; divided we fall. Will you prevent the general government from drawing the militia of one State to another, when the consequence will be that every State must depend on itself? The enemy, possessing the water, can quickly go from one State to another. No State will spare to another its militia, which it conceives necessary for itself. It requires a superintending power in order to call forth the resources of all to protect all. If this be not done, each State will fall a sacrifice. This system merits the highest applause in this respect. The honorable gentleman said that a general regulation may be made to inflict punishment. Does he imagine that a militia law is to be engrafted on the scheme of government, so as to render it incapable of being changed? The idea of the worthy member supposes that men renounce their own interests. This would produce general inconveniences throughout the Union, and would be equally opposed by all the States. But the worthy member fears that in part of the Union they will be regulated and disciplined, and in another neglected. This danger is enhanced by leaving this power to each State, for some States may attend to their militia, and others may neglect them. If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia men?”

Referring to that clause of the Constitution which related to the federal judicial system, Mr. Marshall said :

“Mr. Chairman, this part of the plan before us is a great improvement on that instrument from which we are now departing. Here 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. Unless its organization be defective, and so constructed as to injure instead of accommodating the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support it, after the very able manner in which they have investigated and examined it, I conceived it would be no longer considered as so very defective, and that those who opposed it would be convinced of the impropriety of some of their objections. But I perceive that they still continue the same opposition.

Gentlemen have gone on an idea that the federal courts will not determine the causes which may come before them with the same fairness and impartiality with which other courts decide. What are the reasons of this supposition? Do they draw them from the manner in which the judges are chosen, or the tenure of their office? What is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the federal court chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more, independent? If so shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States as in a particular State, shall we conclude that that wisdom and knowledge will not be equally exercised in the selection of judges?”

“With respect to its [the federal judiciary’s] cognizance, in all cases arising under the Constitution and the laws of the United States, he [George Mason] says that, the laws of the United States being paramount to the laws of the particular State, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same State? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the 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.”

“How disgraceful is it that the state courts cannot be trusted, says the honorable gentleman. What is the language of the Constitution? Does it take away their jurisdiction? Is it not necessary that the federal courts should have cognizance of cases arising under the Constitution and laws of the United States? What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly manner, without shedding blood, or creating a contest, or availing yourselves of force? If this be the case, where can its jurisdiction be more necessary than here?”

“With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the bar of the federal court. [3]

Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the State is not sued? 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 from individuals residing in other States. I contend that this construction is warranted by the words. But, say they, there will be partiality in it, if a State cannot be defendant, if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular State, is it to be presumed that, on application, he will not obtain satisfaction ? But how could a State recover any claim from a citizen of another State, without the establishment of these tribunals?


“The honorable member objects to suits being instituted in the federal courts by the citizens of one State against the citizens of another State. Were I to contend that this was unnecessary in all cases, and that the government, without it, would be defective, I should not use my own judgment. But are not the objections to it carried too far? Though it may not, in general, be absolutely necessary, a case may happen, as has been observed, in which a citizen of one State ought to be able to recur to this tribunal to recover a claim from the citizen of another State. What is the evil which this can produce? Will he get more justice there? The independence of the judges forbids it. 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? It may be necessary with respect to the laws and regulations of commerce, which Congress may make. It may be necessary in cases of debt, and some other controversies. In claims for land, it is not necessary, but it is not dangerous. In the court of which State will it be instituted? said the honorable gentleman. It will be instituted in the court of the State where the defendant resides, where the law can come at him, and nowhere else. By the laws of which State will it be determined? said he. By the laws of the State where the contract was made. According to those laws and those only can it be decided. Is this a novelty ? No; it is a principle in the jurisprudence of this commonwealth. If a man contracted a debt in the East Indies and it was sued for here, the decision must be consonant to the laws of that country.”

These examples of the clearness of Marshall’s reasoning serve to show how it was that, at his age, he could win the distinction as a debater which he achieved in the convention. He seemed to impress his opponents very favorably, and though he might not have conquered them by his massive logic, he conciliated their esteem and good-will, which Mr. Henry very handsomely acknowledged. “I have,” Henry said, “the highest veneration and respect for the honorable gentleman, and I have experienced his candor on all occasions.”

The opponents of the Constitution were largely in the ascendant at the meeting and in the early stages of the convention, but in the end its supporters prevailed by a majority of ten votes; a result which frankness compelled the victors to confess was not due altogether to superior merit in argument, but largely also to the gradual progress of public opinion, and to the persuasive fact that, while the convention was still engaged in grave debate on the subject at Richmond, news was received that nine out of the thirteen States had already given in their adhesion to its adoption, a sufficient number to insure its success.

  1. Sketches and Essays of Public Characters, by Francis W. Gilmer.  Return to text.
  2. This reference to the case of Josiah Phillips, which Governor Randolph had adduced as an instance of flagrant departure from national principles, as well as a violation of the Constitution of Virginia. Randolph had thus stated the facts of the case: “From mere reliance on general reports a gentleman in the House of Delegates informed the house that a certain man (Phillips) had committed several crimes, and was running at large, perpetrating other crimes. He therefore moved for leave to attaint him. He obtained that leave instantly; no sooner did he obtain it than he drew from his pocket a billy ready written for that effect; it was read three times in one day, and carried to the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression on my heart, and cannot contemplate it without horror.” Elliott’s Debates, vol. iii, p. 66. Patrick Henry thus replied: “The honorable gentleman has given you an elaborate account of what he judges tyrannical legislation, and an ex post facto law, in the case of Josiah Phillipis. He was misrepresented the facts. That man was not executed by a tyrannical stroke of power. Nor was he a Socrates. He was a fugitive murderer and an outlaw; a man who commanded an infamous banditti. And, at a time when the war was at its most perilous stage, he committed the most cruel and shocking barbarities. He was an enemy to the human name. Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, sir, in this case, the occasion warranted the measure. A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations.” Ibid. p. 140. When this act of attainder, Henry was the governor of Virginia and Jefferson a member of the Assembly. Randolph, who had been hard pressed by Henry in debate, and arraigned for inconsistency in now supporting the Constitution when, as a member of the federal convention, he had refused to sign it, brought forward the case of Phillips as a means of retaliation. But Jefferson says that Phillips was not executed under the act of attainder; that he was indicted at common law for either robbery or murder; as regularly tried, convicted, and executed. No use, he says, was ever made of the act of attainder. Governor Randolph acted for the Commonwealth in the prosecution, he being, at that time, attorney-general. Jefferson supposes that there must have been some mistake in the report of Randolph’s statement of the case in the convention, as well as in Henry’s reply. See Jefferson’s Works, vol. vi, pp. 369–440.  Return to text.
  3. This, however, was afterwards done, in the case of Chisholm v. Georgia. The decision of the court in that case led to an amendment of the Constitution forbidding an exercise of authority.  Return to text.