Εικόνες σελίδας
Ηλεκτρ. έκδοση

amble and substituted another which was violently opposed, and only passed at length by a very small majority, many members not voting.

The amendment in regard to the Executive, “ That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years," has become, it would seem, an unwritten law, to be read between the lines of the constitutional compact. In connection with the judiciary system of the United States, a direct confirmation of George Mason's foresight may be noted in the operation of the federal courts. In his argument on the subject in the Virginia Convention, he supposes a case and says that even if a “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 ? 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.” Again in another connection he says: “How will a poor man who is injured or dispossessed unjustly, get a remedy? Is he to go to the federal court, seven or eight hundred miles? He might as well give his claim up. He may grumble, but finding no relief he will be contented.” Owing to the fee system by which the federal official is remunerated instead of receiving a salary, the difficulty as suggested by George Mason is made even worse. The compensation of the commissioner before whom the complaint is sworn depends on the number of warrants issued, the number of days over which the hearings extend, and the number of witnesses recognized. A recent writer, who calls attention to this matter, says:

"He [the commissioner) and the marshal can readily play into each other's hands, the marshal by finding cases and the commissioner by giving the marshal processes to serve. Then usually one commissioner does all the criminal business for a district and offenders may be taken before this one from the most remote



parts of the district, at great expense to the United States and hardship to themselves, as they are called on to find bail and counsel where they are strangers. The case is prejudged. The prisoner must find bail, and if he admits guilt he must stay in jail

... He may be in jail weeks, waiting bail for an offense punishable only by fine or a small term of imprisonment. If tried and acquitted, the attorney gets twice as much as if he pleads guilty, and if convicted he is entitled to an additional

fee." 1

George Mason in the Virginia Convention expressed his belief that the great powers given the federal judiciary tended to destroy the State governments. In 1819 we find Jefferson writing of the judiciary as “ on every occasion driving us into consolidation.” He described them at one time as “the corps of sappers and miners, steadily working to undermine the independent rights of the States, and to consolidate all power in the hands of that government in which they have so important a freehold estate. John Randolph of Roanoke, agreed with Jefferson that "the judiciary gravitates towards consolidation," and he considered the District of Columbia “to be the novoTw and the Supreme Court to be the lever of the political Archimedes.": If the federal judiciary gravitated towards consolidation in the first half century of the Union, its course since has been fearfully accelerated. The modern Republican in his interpretation of the Constitution takes the place of the early Federalist and has developed his theories. The “puissant doctrine” of the implied powers, Mr. Woodrow Wilson contends, has made Congress omnipotent, and its power over the States is to be extended still further; while the privileges of the federal courts permit them to "annul State action, but State courts cannot arrest the growth of congressional power."• Elsewhere, in writing

1 “ Federal Criminal Procedure and the Fee System,” The Nation, July 22, 1886.

“Jefferson's Works,” H. A. Washington, vol. vii., p. 134. * Garland's “Life of John Randolph," vol. ii., p. 145. “Congressional Government,” Boston, 1885, p. 24.

of the relations of the federal judiciary to the States of the Union he takes occasion to notice the illegality of the three last amendments to the Constitution :

“ The integrity of the powers of the States has depended solely upon the conservatism, the conservative legal conscience, of the federal courts. State functions have certainly not decayed ; but the prerogatives of the States have been preserved, not by their own forces of self-defense, but by the national government's grace of self-restraint.”

It is admitted that this royal grace of self-restraint was not always maintained by the federal courts:

“ The actual encroachments which the latter have permitted themselves . . . were not needed to prove the potential supremacy of the federal government. They showed how that potential supremacy would on occasion become actual supremacy; but they added nothing but illustration to the principle that there is no guarantee but that of conscience that justice will be vouchsafed a suitor when his adversary is both court and opposing litigant."

As an instance of the “strong instinct to keep within the sanction of the law," that inspires the federal conscience, there is adduced the case of the amendments. When these “were being forced upon the Southern States by means which were revolutionary, the outward forms of the Constitution were observed. But it was none the less manifest with what sovereign impunity the national government might act in stripping those forms of their genuineness.” Another political writer, in discussing the changes in the federal government since 1789, finds this alteration most marked in the department of the judiciary. He says of the courts that they “ have increased steadily in power and independence, so far as their relations to the two co-ordinate branches of government are concerned. The change, silent, steady, has certainly transformed the governments

| The Atlantic Monthly, April, 1886, article by Woodrow Wilson.



within themselves, and to the Federal Union it has furnished the main bulwark of its power.

The biographer of John Randolph wrote in 1850, of George Mason, calling him “the champion of the States and the author of the doctrine of State Rights.” “Many of the prophecies of this profound statesman," he adds, “are recorded in the fulfilments of history-many of the ill-forebodings of the inspired orator [Patrick Henry] are daily shaping themselves into sad realities.”: Eleven years later and Southern discontent had culminated in the sad reality of war. “The predictions of George Mason and

hers," writes Professor Bledsoe, “ in which they foretold the wrongs and aggressions of the Northern States, if armed with the formidable powers of the new government, Mr. Madison just set aside as unfounded and uncharitable suspicions. Now in regard to this point we need not ask who was the wiser of the two, George Mason or James Madison, nor need we try the question by any imperfect notions of our own. For time has pronounced its irreversible verdict in favor of the wisdom of George Mason.". It was perceived very clearly by Madison as well as Mason that the Constitution was to be a compact between two sections with wholly different interests and different social institutions. And it was with the understanding that the Southern States were to be secured in all their rights that the Union of 1789 was formed. How these rights were violated, notably in questions affecting the institution of slavery, is matter of history. A systematic endeavor to repress the expansion of the South into new States was one feature of this injustice. And before the generation that formed the new government had passed away, the cloud was seen in the horizon, no larger than a man's hand, out of which in after years was to burst the storm of civil war. There were two Federalists,

1 American Constitutions," by Horace Davis, Johns Hopkins University Studies, Third Series.

? Garland's “ Life of John Randolph,” vol. i., p. 367. 3“ Is Davis a Traitor ?" p. 169.

members of the Convention of 1788, who lived to see and deplore the tendency of the government which they had urged upon Virginia. Madison, in his later public acts, in a measure retrieved the errors of his earlier manhood. And Francis Corbin acknowledged with grief to John Randolph in 1818 his conviction that the “ centripetal force of this confederacy is greater than the centrifugal.” He saw “that men of a certain description are resolved at all hazards and by all means, to break down the State sovereignties, our only barrier against Federal tyranny, and to erect on their ruins a uniform system of consolidated despotism.”! Jefferson wrote in 1820: “The coincidence of a marked principle, moral and political, with a geographical line, once conceived, would never be obliterated from the mind; that it would be recurring on every occasion and renewing irritations, until it would kindle such mutual and mortal hatred, as to render separation preferable to eternal discord." : Again he says of the policy of the Abolitionists: “ All know that permitting the slaves of the South to spread into the West will not add one being to that unfortunate condition, that it will increase the happiness of those existing, and by spreading them over a larger surface, will dilute the evil everywhere, and facilitate the means of getting rid of it.” : There is something most pathetic in the words of this patriot of '76, as with mournful prevision he looks forward to the inevitable issue :

[ocr errors]

“What does the Holy Alliance in and out of Congress mean to do with us on the Missouri question ?

Are we then to see again Athenian and Lacedemonian Confederacies ?—to urge another Peloponnesian war to settle the ascendancy between them? Or is this the tocsin of merely a servile war? That remains to be seen ; but not I hope by you or me. Surely they will parley awhile and give us time to get out of the way." •

In memoriam of Benjamin Ogle Tayloe, Washington, 1872. 9“ Jefferson's Works,” H. A. Washington, vol. vii., p. 158. 3 Ibid., p. 194. Ibid., p. 200.

« ΠροηγούμενηΣυνέχεια »