The truth was, said Marshall, that justice would be done in all cases by both National and State Courts. Laws would not be "tyrannically executed" as the opposition feared; the "independency of your judges" would prevent that. "If," he argued, "a law be exercised tyrannically in Virginia, to whom can you trust? To your Judiciary! What security have you for justice? Their independence! Will it not be so in the Federal court?"
Like other objections to the power of Congress and the conduct of National Courts, the criticism that men might be punished for their political opinions was, declared Marshall, groundless and absurd; for, "the good opinion of the people at large must be consulted by their representatives—otherwise mischiefs would be produced which would shake the government to its foundations." Of course, then, he contended, neither Congress nor the courts would abuse their power. The charge that "unjust claims will be made, and the defendant had better pay them than go to the Supreme Court" was unthinkable. Would anybody incur great expense to oppress another? "What will he gain by an unjust demand? Does a claim establish a right? He must bring his witnesses to prove his claim"; otherwise "the expenses must fall on him." Will he take the chances that the injured man will not appear and defend the unjust suit? "Those who know human nature, black as it is," sarcastically observed Marshall, "must know that mankind are too attached to their own interest to run such a risk."
"The Federal Government," exclaimed Marshall, "has no other motive, and has every reason for doing right which the members of our state legislature have. Will a man on the eastern shore be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern shore to have his trial? A government, by doing this, would destroy itself."[1315]
This, in effect, was John Marshall's exposition of the second section of article three of the Constitution. Although Grigsby, whose accuracy on such details is not questioned, says that the speech was prepared, Robertson's report would not indicate that such was the case. The address is wanting in that close-knit continuity of reasoning and in that neatness of thought and expression which were Marshall's peculiar excellence. Like his first debate in the Convention, his speech on the Judiciary is disjointed. A subject is half treated in one part of his remarks and resumed in another.[1316] But he makes his principal points with clearness and power. His argument is based on the independence of the courts as the best guaranty against unjust decisions; the responsibility of Congress to the people as the strongest safeguard against oppressive laws; and the similarity of Virginia's Constitution and Courts to the National Constitution and Courts as proof of the security, fairness, and justice of the National Judiciary.
Marshall's effort really closed the case for the Constitution on the Judiciary. That night Madison wrote to Hamilton that "a great effort is making" against the Judiciary. "The retrospection to cases antecedent to the Constitution, such as British debts and an apprehended revival of Fairfax—Indiana, Vandalia, &c., claims are also brought into view in all the terrific colours which imagination can give them.... Delay & an adjournment will be tried if the adverse party find their numbers inferior.... At present it is calculated that we still retain a majority of 3 or 4; and if we can weather the storm agst." the Judiciary, "I shall hold the danger to be pretty well over. There is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated."[1317]
Marshall's speech alarmed the opposition, and Grayson used all his learning, wit, and cleverness in an attempt to break its force. Randolph replied. Thus the second week closed. Neither side was certain of the exact number of votes it had, though every member was observed with the politician's anxiety and care.[1318] The Constitutionalists had the greater confidence. Madison wrote his father that "The calculations on different sides do not accord;... I think however, the friends of the Constitution are most confident of superiority.... It is not probable that many proselytes will be made on either side."[1319]
On Sunday Madison made his weekly report to Hamilton: "The Judiciary Department has been on the anvil for several days; and I presume will still be a further subject of disquisition. The attacks on it have apparently made less impression than was feared. But they may be secretly felt by particular interests that would not make the acknowledgment, and wḍ chuse to ground their vote agṣt the Constitution on other motives."[1320]
The Anti-Constitutionalists were becoming desperate. If they could not amend the Constitution as a condition of ratifying it, their game now was either an adjournment or a delay until the Legislature, scheduled to meet on the following Monday and known to be, in the main, opposed to the Constitution, should afford them relief.
If these expedients should fail, there was open talk of secession.[1321] The Constitutionalists arranged for the utmost dispatch and planned to "withhold, by a studied fairness in every step on the side of the Constitution, every pretext for rash experiments." They hoped to avoid previous amendment by proposing "to preface the ratification with some plain & general matters that cannot effect the validity of the" Constitution. They felt that "these expedients are rendered prudent by the nice balance of members, and the scruples entertained by some who are in general well affected." But whether these devices "will secure us a majority," wrote Madison, "I dare not positively to declare."
So small was their expected majority likely to be, that the Constitutionalists felt that "ordinary casualties ... may vary the result." They were exceedingly alarmed over the coming to town of the members of the Legislature who "as individuals ... may have some influence and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in Convention."[1322]