which they now decide. They have a concurrence of jurisdiction with the Federal courts in those cases in which the latter have cognizance. How disgraceful is it, says the honorable gentleman, that the State courts cannot be trusted? Does the Constitution take away their jurisdiction? Is it not necessary that Federal courts should have cognizance of cases arising under the Constitution and laws of the United States? What is the purpose of a judiciary but to execute the laws in a peaceable, orderly manner, without shedding blood, or availing yourself of force? To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? The honorable gentleman objects to it because the officers of government will be screened from merited punishment by the Federal authority. The Federal sheriff, he says, will go into a poor man's house and beat him or abuse his family, and the Federal court will protect him. Is it necessary that officers should commit a trespass on the property or persons of those with whom they are to transact business? The injured man would trust to a tribunal in his neighborhood, and he would get ample redress. There is no clause in the Constitution which bars the individual injured from seeking redress in the State He says that there is no instance of appeals as to fact in common law cases. case in this State. With respect to mills, roads, and other cases, appeals lie from the inferior to the superior courts as to fact as well as law. Is it a clear case that there can be no case in common law in which an appeal as to fact would be necessary and proper? If an appeal in matters of fact could not be carried to the superior court, then it would result that such cases could not be tried before the inferior courts for fear of injurious and partial decisions.

courts.

The contrary is well known to be the

Where, says Marshall, is the necessity of discriminating between the three cases of chancery, admiralty, and common law? Why not leave it to Congress? Is it necessary for them wantonly to infringe your rights? Have you anything to apprehend, when they can in no case abuse their power without rendering themselves hateful to the people at large? 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. With respect to disputes between a State and the citizens of

another State, its jurisdiction has been decried with unusual vehemence. I hope, he said, that no gentleman will think that a State will be called at the bar of the Federal court. 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 shall be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. I contend this construction is warranted by the words. I see a difficulty in making a State a defendant, which does not prevent its being plaintiff. As to controversies between the citizens of one State and the citizens of another State, I should not use my own judgment were I to contend that it was necessary in all cases to bring such suits in a Federal court; but cases may happen when it would be proper. It is asked, in the court of which State will the suit be instituted? In the court of the State wherein the defendant resides, and it will be determined by the laws of the State in which the contract was made. As to controversies between a State and a foreign State, the previous consent of the parties is necessary; and therefore, as the Federal court will decide, each party will acquiesce. The exclusion of trial by jury in this case, the gentleman (Mason) urged would prostrate our rights. Does the word court only mean the judges? Does not the determination of a jury necessarily lead to the judgment of the court? Is there anything here that gives the judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the courts of the facts. When a court has cognizance of facts, does it not follow that they can. make enquiry by a jury? But it seems the right of challenging the jurors is not secured in this Constitution. Is this done in our own Constitution or by any provision of the English government? Is it done by their Magna Charter or by their Bill of Rights? This privilege is founded on their laws. If we are secure in Virginia without mentioning it in our laws, why should not this security be found in the Federal court? As to the quitrents in the Northern Neck, has he not acknowledged that there was no complete title? Was he not satisfied that the right of the legal representative of the proprietor did not exist at the time he mentioned? If so, it cannot exist now. A law passed in 1782, which settles this subject. He says that poor men may

be harassed by the representative of Lord Fairfax. If he has no right this cannot be done. If he has this right and comes to Virginia, what laws will this claim be determined by? By the laws of Virginia. By what tribunals will the claim be determined? By our own tribunals. After replying to some incidental objections which had been urged by Mason and Henry, Marshall concluded his speech, and was followed in a few words by Randolph, when the committee rose, and the House adjourned.

On Saturday, the twenty-first of June, the House resolved itself into a committee, Wythe in the chair, the first and second sections of the third articles still under consideration. Grayson rose and reviewed the structure and the jurisdiction of the Federal judiciary at great length, and denounced its defects in a splendid oration, and was followed by Randolph at equal length in reply. At the close of Randolph's speech the House adjourned.

On Monday, the twenty-third of June, the House again went into committee, Harrison in the chair, and the same sections still under consideration. Nicholas rose to suggest that the committee now pass on to the next clause of the Constitution, but he was opposed by Henry, who made a handsome acknowledgment of the fairness and ability of Marshall, and replied to some of his arguments. He was succeeded by a member far advanced in life, who had not as yet spoken in the committee, and who was not only held in high repute by his contemporaries, but deserves the favorable regard of posterity. For nearly the third of a century last past he had been engaged in the military service of his country. He was one of the oldest and most prominent military men in the Commonwealth. In the Indian wars from 1755 to nearly the beginning of the Revolution he had borne a conspicuous part, and was often in command of the Virginia troops raised for the defence of the frontier. His large stature and great muscular strength, added to his experience in war, made him the terror of the Indians. On one occasion he was sent to South Carolina with the Virginia companies to aid in beating back the Indians. As early as 1756, when Washington went to Boston to consult General Shirley on a point of military etiquette, Colonel Adam Stephen was left in command of the military forces of the colony until his return. In 1763 the Governor of

Virginia, when Stephen was in command of a levy of five hundred men to defend the frontiers against the Indians, spoke highly of his military capacity and courage. In 1776 he commanded the Fourth battalion of Virginia troops at Portsmouth, when he was appointed a brigadier-general in the army of the United States. On retiring from his command in Portsmouth, a valedictory letter was addressed to him by his officers, who speak of him as the polite gentleman and the accomplished soldier; and in his answer he mentioned the fact that "the present was his twelfth campaign. "226 In February, 1777, he was elected a majorgeneral by Congress. In the battle of Brandywine he distinguished himself by his valor, as on other important occasions. He had probably been a member of the House of Burgesses, and was returned from Berkeley to the March Convention of 1775, when he sustained the resolutions of Henry for putting the Colony into military array. In the following July he was also returned to the Convention, but from some informality in the return he lost his seat." A warm admirer of the Federal Con

227

226 Virginia Gazette, September 20, 1776.

227 Journal of the Convention of July, 1775, page 7. Irving, in his Life of Washington, has several allusions to Stephen, but the best source of information is Sparks's Writings of Washington, which the reader may consult by referring to the name of Stephen in the index in the last volume. In the years 1775 and 1776, of the American Archives, are letters of Stephen. A letter of his heretofore quoted may be found in the Life of R. H. Lee, by his grandson.

Stephen died in August, 1791, in Berkeley county, and lies buried on the estate owned by the Hon. Charles J. Faulkner; a rude stone marks the spot. He has left descendants, all of whom occupy respectable and honorable positions in the communities in which they reside. Letter of the Hon. C J. Faulkner to Francis B. Jones, Esq., dated May 19, 1856. I am indebted to Mr. Jones for his great courtesy in assisting me in my inquiries concerning Stephen and other persons belonging to the history of the Valley of Virginia. It is believed that Stephen was born in what is now Berkeley county, though I think it questionable. He lived in Martinsburg in his latter days. The cause of his losing his seat in the Convention of 1775 was, that two districts of the county did not know that an election was to be held when Stephen was elected, and that Stephen, who was on election day parading the militia, marched at their head to the polls, and was elected by their votes. See Kercheval's History of the Valley, pages 244, 245; also, Burke's History of Virginia, IV, 91; and Marshall's Life of Washington, revised edition, I, 157, 158.

stitution, and as fearless on the floor as in the field, he now rose to give utterance to his feelings. Indeed, his speech is rather a fierce personal attack upon Henry than a defense of the judiciary, which was the topic in debate, or of the Constitution at large.' "The gentleman," says Stephen, "means to frighten us by his bugbears and hobgoblins-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 traveled through the greater part of the Indian countries; I know them well. 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, Cook's river, the Indian tribes residing in that country, and the variety of articles which might be obtained to advantage by trading with those people.) "I know, he said, 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."

Nicholas rose to answer some arguments which had fallen from the gentlemen on the other side. He denied that the English judges were more independent than the judges of the Federal judiciary. May not a variety of pensions be granted to the judges with a view to influence their decisions? May they not be removed by a vote of both Houses of Parliament? We are told that quit-rents are to be sued for. To satisfy gentlemen, 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. As to the claims of certain companies which 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 that they will be again disposed to renew their claim. But, said Nicholas, there are gentlemen who have come by large possessions that it is not easily to account for. Here Herry interfered, and hoped the gentleman meant nothing personal. Nicholas answered: "I mean what I say, sir." He then alluded to the Blue Laws of Massachusetts, of which he said he had never heard till yester