part in the matter. Then, too, Madison was now hand in glove with Alexander Hamilton, whose views were well known to be inimical to State sovereignty. These two were at this time writing the letters of The Federalist for the enlightenment of the general public, while carrying on an anxious private correspondence, in which their sympathy is seen to be complete on the subject of adopting the unamended Constitution. Madison, therefore, interrupted Colonel Mason, and asked for "an unequivocal explanation." To this challenge Mason made reply:

"I shall never refuse to explain myself. It is notorious that this is a prevailing principle. It was at least the opinion of many gentlemen in Convention, and many in the United States. I do not know what explanation the honorable gentleman asks. I can say, with great truth, that the honorable gentleman, in private conversation with me, expressed himself against it; neither did I ever hear any of the delegates from this State advocate it."

With this explanation Madison professed himself satisfied, and George Mason continued his argument. He passed in review the powers given the judiciary, approving of some unconditionally, of others under restrictions, but excepting to some altogether as " utterly inconsistent with reason and good policy." He dwelt upon the hardships and expense to a poor man in case of oppression by federal officials.

"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 hundred or five hundred miles? Can he stand the expense attending it? On this occasion they are to judge of fact as well as law. He must bring his witnesses where he is not known, where a new evidence may be brought against him, of which he never heard before, and which he cannot contradict."

While admitting that in maritime and chancery cases jurisdiction as to fact was necessary, he thought in common

11th Amend?

UNLIMITED POWER OF FEDERAL COURTS. 261

law controversies it was inexpedient and dangerous. And he proposed an amendment, which is to be found as corresponding to the first part of the fourteenth amendment adopted by the Convention. In regard to controversies between citizens of different States, Colonel Mason said:

"Can we not trust our State courts with the decision of these? If I have a controversy with a man in Maryland-if a man in Maryland has my bond for £100, are not the State courts competent to try it? Is it suspected that they would enforce the payment if unjust, or refuse to enforce it if just? The very idea is ridiculous."

66

He dilated further upon this case, and then proceeded to consider that of the British creditor and the citizens of Virginia, and he thought there were many instances where the federal courts could oblige the latter to pay a debt twice over. Again, in regard to disputed lands he saw peril to many in the community. "I am personally endangered," he went on to say, as an inhabitant of the Northern Neck. The people of that part will be obliged, by the operation of this power, to pay the quitrent of their lands. . . . Lord Fairfax's title was clear and undisputed. After the Revolution, we taxed his lands as private property. After his death, an act of Assembly was made, in 1782, to sequester the quitrents due, at his death, in the hands of his debtors. Next year an act was made restoring them to the executor of the proprietor. Subsequent to this, the treaty of peace was made, by which it was agreed that there should be no further confiscations. But after this an act of Assembly passed confiscating this whole property. As Lord Fairfax's title was indisputably good, and as treaties are to be the supreme law of the land, will not his representatives be able to recover all in the federal court?" Next he named the great land companies, who would now come forward :

"All that tract of country between the Blue Ridge and the Alleghany Mountains, will be claimed, and probably recovered in

.

the federal court, from the present possessors, by those companies who have a title to them. Again, the great Indiana purchase, which was made to the westward, will, by this judicial power, be rendered a cause of dispute. Three or four counties are settled on the land to which that company claims a title, and have long enjoyed it peaceably. All these claims before those courts, if they succeed, will introduce a scene of distress and confusion never heard of before. Our peasants will be, like those mentioned by Virgil, reduced to ruin and misery, driven from their farms, and obliged to leave their country— Nos patriam fugimus, et dulcia linquimus arva.”

George Mason then proposed an amendment, "that the judicial power shall extend to no case where the cause of action shall have originated before the ratification of this Constitution, except in suits for debts due to the United States, disputes between States about their territory, and disputes between persons claiming lands under the grants of different States." This forms the concluding clause of the fourteenth amendment recommended by the Convention.

1

2

Grigsby observes that "Madison manifested great sensitiveness during the speech of Mason, and it is not to be disguised that he did touch doctrines in the [Federal] Convention which would have led the way to the plan denounced by Mason; for he is reported by Yates to have said that the States were never sovereign, and were petty corporations.' Though it was past the hour for adjournment, Madison rose to reply to Mason "to break the effect" of his speech. And on the following day Madison continued his argument. "There was an evident interest shown," says Grigsby, "to hear the speech of Madison, who, like Mason, was not a lawyer, on a topic which was beyond the usual sphere of a politician, and which had been argued with such eminent ability by Mason the day before." Patrick Henry spoke in reply to Madison, and he was followed by Pendleton, who 1 Appendix iii.

3

History of the Virginia Federal Convention," note to p. 285. 3 Ibid., p. 290.

PENDLETON AND MARSHALL ANSWER MASON. 263

sought to refute the arguments of Mason and Henry. He accused George Mason of making a mistake in his speech "on the propriety of a jury from the vicinage." Grigsby comments here:

"Pendleton sought to make mirth with those gentlemen of the law in the Convention who thought that none but lawyers can understand legal questions. The fact is that Mason was clearly right, and Pendleton clearly wrong. Mason did not contend that a jury from the vicinage was the sole benefit accruing from jury trial, but that it was an important one, as it assuredly is, which a criminal, carried a thousand miles from his home would lose. As Pendleton wholly excludes from his view this great benefit, it is he that errs, and not Mason." 1

Pendleton also referred to the case supposed by Mason, that a Virginian holding his bond might, through malice, assign it to a citizen of a neighboring State, and asserted that this was not a well-founded objection. Colonel Mason replied:

"The honorable gentleman has said that there can be no danger in the first instance because it is not within the original jurisdiction of the Supreme Court; but that the suit must be brought in the inferior federal court of Virginia. He supposes there can never be an appeal, in this case, by the plaintiff, because he gets a judgment on his bond; and that the defendant alone can appeal, who therefore, instead of being injured, obtains a privilege. Permit me to examine the force of this."

And the speaker proceeded to show that his objection was a legitimate one, and he added: "The honorable gentleman recommends to me to alter my proposed amendment. I would as soon take the advice of that gentleman as any other, but though the regard which I have for him be great, I cannot assent on this great occasion." Marshall occupied the attention of the house for the remainder of the day's session. He passed in review some of George Mason's

1 Ibid., note to p. 294.

objections to the great powers given the judiciary, and pronounced them chimerical. Mason had said of the clause,

to controversies between a State and the citizens of another State," in reference to the land companies, that these claims would be tried before a federal court:

"Is not this disgraceful? Is this State to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the State to be arraigned like a culprit, or private offender? What is to be done if a judgment be obtained against a State? Will you issue a fieri facias? It would be ludicrous to say you could put the State's body in jail. How is the judgment, then, to be enforced? A power which cannot be exercised ought not to be granted."

And Marshall replied: "I hope no gentleman will think that a State will be called at the bar of the federal court." Later events justified George Mason's fears, and necessitated the eleventh amendment. Edmund Randolph had a few remarks to make on Friday, to the effect "that the faults which he once saw in this system he still perceived!" He unfolded his views on the following day, after an able speech by Grayson. "It seems to have been a rule," said the latter, "with the gentlemen on the other side, to argue from the excellency of human nature, in order to induce us to grant away (if I may be allowed the expression) the rights and liberties of our country. I make no doubt the same arguments were used on a variety of occasions. I suppose, sir, this argument was used when Cromwell was invested with power. The same argument was used to gain our assent to the stamp act."'

Madison wrote to Alexander Hamilton on Friday the 20th, and also on Sunday the 22d. He spoke of the debates having "advanced as far as the judiciary department, against which a great effort is making." He referred to the project of the Antifederalists to bring forward a bill of rights and amendments as conditions of ratification.

'Debates of the Virginia Convention," Robertson, p. 402. Appendix iii.