The Chief Justice answered, "with great, very great repugnance," that throughout the debate he had "most carefully avoided" expressing any opinion on that subject. He would say, however, that "he did not conceive the Constitution to have been at all definitely expounded by a single act of Congress." Especially when "there was no union of Departments, but the Legislative Department alone had acted, and acted but once," ignoring the Judicial Department, such an act, "even admitting that act not to have passed in times of high political and party excitement, could never be admitted as final and conclusive."[1329]
Tazewell was of "an exactly opposite opinion"—the Repeal Act of 1802 "was perfectly constitutional and proper." Giles also disagreed with Marshall. Should "a public officer ... receive the public money any longer than he renders service to the public"?[1330] Marshall replied with spirit. No serious question can be settled, he declared, by mere "confidence of conviction, but on the reason of the case." All that he asked was that the Judiciary Article of the proposed State Constitution should go forth, "uninfluenced by the opinion of any individual: let those, whose duty it was to settle the interpretation of the Constitution, decide on the Constitution itself."[1331] After extended debate[1332] and some wrangling, Marshall's idea on this particular phase of the subject prevailed.[1333]
The debate over the preservation of the County Court system, for which Marshall's report provided, was long and acrimonious, and a résumé of it is impossible here. Marshall stoutly supported these local tribunals; their "abolition will affect our whole internal police.... No State in the Union, has hitherto enjoyed more complete internal quiet than Virginia. There is no part of America, where ... less of ill-feeling between man and man is to be found than in this Commonwealth, and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our County Courts." The county judges "consist in general of the best men in their respective counties. They act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours."[1334]
Giles now aligned himself with Marshall as a champion of the County Court system. In an earnest defense of it he went so far as to reflect on the good sense of Jefferson. Everybody, said Giles, knew that that "highly respectable man ... dealt very much in theories."[1335]
During the remainder of the discussion on this subject, Marshall rose frequently, chiefly, however, to guide the debate.[1336] He insisted that the custom of appointing justices of the peace only on nomination of the County Courts should be written into the constitution. The Executive ought to appoint all persons recommended by "a County Court, taken as a whole." Marshall then moved an amendment to that effect.[1337]
This was a far more conservative idea than was contained in the old constitution itself. "Let the County Court who now recommended, have power also to appoint: for there it ended at last," said William Campbell of Bedford County. Giles was for Marshall's plan: "The existing County Court system" threw "power into the hands of the middle class of the community," he said; and it ought to be fortified rather than weakened.
Marshall then withdrew his astonishing amendment and proposed, instead, that the advice and "consent of the Senate" should not be required for appointments of county justices, thus utterly eliminating all legislative control over these important appointments; and this extreme conservative proposition was actually adopted without dissent.[1338] Thus the very foundation of Virginia's aristocratic political organization was greatly strengthened.
Concerning the retention of his office by a judge after the court had been abolished, Marshall made an earnest and impressive speech. What were the duties of a judge? "He has to pass between the Government and the man whom that Government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance, that in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness?
"The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience?
"You do not allow a man to perform the duties of a juryman or a Judge, if he has one dollar of interest in the matter to be decided: and will you allow a Judge to give a decision when his office may depend upon it? when his decision may offend a powerful and influential man?