12

vite them by our weakness to attack us, will
they not do it?
present situation, a partition of America may
If we add debility to our
take place.

in the old system; to little purpose, indeed, did | she propose improvements; and to no purpose is this plan constructed for the promotion of our happiness, if we refuse it now, because it is possible that it may be abused. The confederation has nominal powers, but no means that power, in time of peace, which the necesIt is, then, necessary to give the government to carry them into effect. If a system of gov-sity of war will render indispensable, or else ernment were devised by more than human in- we shall be attacked unprepared. telligence, it would not be effectual if the means ence of the world, a knowledge of human nawere not adequate to the power. All delegated ture, and our own particular experience, will The experipowers are liable to be abused. Arguments confirm this truth. When danger shall come drawn from this source go in direct opposition upon us, may we not do what we were on the to the government, and in recommendation of point of doing once already—that is, appoint a anarchy. The friends of the constitution are dictator? Were those who are now friends to as tenacious of liberty as its enemies. They this constitution less active in the defence of wish to give no power that will endanger it. liberty, on that trying occasion, than those who They wish to give the government powers to oppose it? When foreign dangers come, may secure and protect it. Our inquiry here must not the fear of immediate destruction, by be, whether the power of taxation be necessary foreign enemies, impel us take a most dangerous to perform the objects of the constitution, and step? Where, then, will be our safety? We whether it be safe, and as well guarded as hu- may now regulate and frame a plan that will man wisdom can do it. What are the objects enable us to repel attacks, and render a recurof the national government? To protect the rence to dangerous expedients unnecessary. If United States, and to promote the general wel- we be prepared to defend ourselves, there will fare. Protection, in time of war, is one of its be little inducement to attack us. principal objects. Until mankind shall cease defer giving the necessary power to the general to have ambition and avarice, wars will arise. But if we The prosperity and happiness of the people we shall give it then, and with an unsparing government till the moment of danger arrives, depend on the performance of these great and hand. America, like other natics, may be eximportant duties of the general government. posed to war. Can these duties be performed by one State? power will be proved by the history of the The propriety of giving this Can one State protect us, and promote our hap-world, and particularly of modern republics. piness? The honorable gentleman who has I defy you to produce a single instance where gone before me, Governor Randolph, has shown requisitions on several individual States, comthat Virginia cannot do these things.* How, posing a confederacy, have been honestly comthen, can they be done? By the national gov-plied with. Did gentlemen expect to see such ernment only. Shall we refuse to give it power punctuality complied with in America? to do them? We are answered, that the they did, our own experience shows the conpowers may be abused; that, though the Con- trary. If gress may promote our happiness, yet they may prostitute their powers to destroy our liberties. This goes to the destruction of all confidence in agents. Would you believe that men who had merited your highest confidence would deceive you? Would you trust them again after one deception? Why then hesitate to trust the general government? The object of our inquiry is, Is the power necessary, and is it guarded? There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose? But the honorable gentleman says that we need not be afraid of war. Look at history, which has been so often quoted. Look at the great volume of human nature. They will foretell you that a defenceless country cannot be secure. nature of man forbids us to conclude that we The are in no danger from war. men stimulate them to avail themselves of the The passions of weakness of others. The powers of Europe are jealous of us. It is our interest to watch their conduct, and guard against them. They must be pleased with our disunion. If we in

* See the speech of Governor Randolph, at page 165 of

the first volume of this work.

us through the war. We are told that the confederation carried of liberty inspired us with unanimity, that sysHad not the enthusiasm tem would never have carried us through it. It would have been much sooner terminated had that government been possessed of due energy. The inability of Congress, and the failure of States to comply with the constitutional requisitions, rendered our resistance less efficient than it might have been. The weakness of that government caused troops to be against us which ought to have been on our side, and prevented all resources of the community from being called at once into action. The extreme readiness of the people to make their utmost exertions to ward off solely the pressing danger, supplied the place of requisitions. When they came solely to be depended on, their inutility a regard to propriety, is too feeble to induce was fully discovered. A bare sense of duty, or men to comply with obligations. We deceive ourselves if we expect any efficacy from these. If requisitions will not avail, the government must have the sinews of war some other way. productive of delay, and will ultimately be inRequisitions cannot be effectual. They will be efficient. By direct taxation, the necessities

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their own interest? Will not they and their friends feel the effects of iniquitous measures? Does the representative remain in office for life? Does he transmit his title of representative to his son? Is he secured from the burden imposed on the community?

will be sufficiently energetic and operative in a small territory, will be feeble when extended over a wide-extended country. The gentleman tells us there are no checks in this plan. What has become of his enthusiastic eulogium on the American spirit? We should find a check and control, when oppressed from that source. In this country, there is no exclusive personal stock of interest. The interest of the commu

To procure their re-election, it will be necessary for them to confer with the people at large, and convince them, that the taxes laid are for their good. If I am able to judge on the sub-nity is blended and inseparably connected with ject, the power of taxation now before us is wisely conceded, and the representatives are wisely elected.

that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we con

these, he will find them abundantly here. They are the best checks. What has become of his eulogium on the Virginia constitution? Do the checks in this plan appear less excellent than those of the constitution of Virginia? If the checks in the constitution be compared to the checks in the Virginia constitution, he will find the best security in the former.

The temple of liberty was complete, said he, when the people of England said to their king, that he was their servant. What are we to learn from this? Shall we embrace such a system as that? Is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration? Where is the nation that can boast greater security than we do? We want only a system like the paper before you, to strengthen and perpetuate this security.

The honorable gentleman said that a govern-sult our own. When he desires such checks as ment should ever depend on the affections of the people. It must be so. It is the best support it can have. This government merits the confidence of the people, and, I make no doubt, will have it. Then he informed us again of the disposition of Spain with respect to the Mississippi, and the conduct of the government with regard to it. To the debility of the confederation alone may justly be imputed every cause of complaint on this subject. Whenever gentlemen will bring forward their objections, I trust we can prove that no danger to the navigation of that river can arise from the adoption of this constitution. I beg those gentlemen that may be affected by it, to suspend their judgment till they hear it discussed. Will, says he, the adoption of this constitution pay our debts? It will compel the States to pay their quotas. Without this, Virginia will be unable to pay. Unless all the States pay, she cannot. Though the States will not coin money, (as we are told,) yet this government will bring forth and proportion all the strength of the Union. That economy and industry are essential to our happiness, will be denied by no man. | But the present government will not add to our industry. It takes away the incitements to industry, by rendering property insecure and unprotected. It is the paper on your table that will promote and encourage industry. New Hampshire and Rhode Island have rejected it, he tells us. New Hampshire, if my information be right, will certainly adopt it. The report spread in this country, of which I have heard, is, that the representatives of that State having, on meeting, found they were instructed to vote against it, returned to their constituents without determining the question, to convince them of their being mistaken, and of the propriety of adopting it.

The extent of the country is urged as another objection, as being too great for a republican government. This objection has been handed from author to author, and has been certainly misunderstood and misapplied. To what does it owe its source? To observations and criticisms on governments, where representation did not exist. As to the legislative power, was it ever supposed inadequate to any extent? Extent of country may render it difficult to execute the laws, but not to legislate. Extent of country does not extend the power. What

The honorable gentleman has asked if there be any safety or freedom, when we give away the sword and the purse. Shall the people at large hold the sword and the purse without the interposition of their representatives? Can the whole aggregate community act personally? I apprehend that every gentleman will see the impossibility of this. Must they, then, not trust them to others? To whom are they to trust them, but to their representatives, who are accountable for their conduct? He represents secrecy as unnecessary, and produces the British government as a proof of its inutility. Is there no secrecy there? When deliberating on the propriety of declaring war, or on military arrangements, do they deliberate in the open fields? No, sir. The British government affords secrecy when necessary, and so ought every government. In this plan, secrecy is only used when it would be fatal and pernicious to publish the schemes of government. We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it.

He then argues against the system, because it does not resemble the British government in this-that the same power that declares war has

He then proceeded to say, the causes of war are removed from us; that we are separated by the sea from the powers of Europe, and need not be alarmed. Sir, the sea makes them neighbors to us. Though an immense ocean divides us, we may speedily see them with us. What dangers may we not apprehend to our

not the means of carrying it on. Are the people | reasons which applied against them, could not of England more secure, if the Commons have be urged against it. Do they not hold out one no voice in declaring war? or are we less secure lesson very useful to us? However unlike in by having the Senate joined with the President? other respects they resemble it in its total ineffiIt is an absurdity, says the worthy member, cacy. They warn us to shun their calamities, that the same man should obey two masters, and place in our government those necessary that the same collector should gather taxes for powers, the want of which destroyed them. I the general government and the State legislature. hope we shall avail ourselves of their misAre they not both the servants of the people? fortunes, without experiencing them. There Are not Congress and the State legislature the was something peculiar in one observation he agents of the people, and are they not to con- made. He said that those who governed the sult the good of the people? May not this be cantons of Switzerland were purchased by effected by giving the same officer the collection foreign powers, which was the cause of their of both taxes? He tells you that it is an ab- uneasiness and trouble. How does this apply surdity to adopt before you amend. Is the to us? If we adopt such a government as object of your adoption to amend solely? The theirs, will it not be subject to the same inconobjects of your adoption are union, safety venience? Will not the same cause produce the against foreign enemies, and protection against same effect? What shall protect us from it? faction-against what has been the destruction What is our security? of all republics. These impel you to its adoption. If you adopt it, what shall restrain you from amending it, if, in trying it, amendments shall be found necessary? The government is not supported by force, but depending on our free will. When experience shall show us any inconveniences, we can then correct it. But until we have experience on the subject, amend-commerce! Does not our naval weakness inments as well as the constitution itself, are to try. Let us try it, and keep our hands free to change it when necessary. If it be necessary to change government, let us change that government which has been found to be defective. The difficulty we find in amending the confederation will not be found in amending this constitution. Any amendments, in the system before you, will not go to a radical change; a plain way is pointed out for the purpose. All will be interested to change it, and therefore all exert themselves in getting the change. There is such a diversity of sentiment in human minds, that it is impossible we shall ever concur in one system till we try it. The power given to the general government over the time, place, and manner of election, is also strongly objected to. When we come to that clause, we can prove it is highly necessary, and not dangerous. The worthy member has concluded his observations by many eulogiums on the British constitution. It matters not to us whether it be a wise one or not. I think that, for America at least, the government on your table is very much superior to it. I ask you if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them. If your Senators were for life, would they be more agreeable to you? If your President were not accountable to you for his conduct,-if it were a constitutional maxim, that he could do no wrong,would you be safer than you are now? If you can answer, Yes, to these questions, then adopt the British constitution. If not, then, good as that government may be, this is better. The worthy gentleman who was last up, said the confederacies of ancient and modern times were not similar to ours, and that consequently

vite an attack on our commerce? May not the Algerines seize our vessels? Cannot they and every other predatory or maritime nation, pillage our ships and destroy our commerce, without subjecting themselves to any inconvenience? He would, he said, give the general government all necessary powers. If any thing be necessary, it must be so to call forth the strength of the Union when we may be attacked, or when the general purposes of America require it. The worthy gentleman then proceeded to show that our present exigencies are greater than they will ever be again.

Who can penetrate into futurity? How can any man pretend to say that our future exigencies will be less than our present? The exigencies of nations have been generally commensurate to their resources. It would be the utmost impolicy to trust to a mere possibility of not being attacked, or obliged to exert the strength of the community. He then spoke of a selection of particular objects by Congress, which he says must necessarily be oppressive; that Congress, for instance, might select taxes, and that all but landholders would escape. Cannot Congress regulate the taxes so as to be equal on all parts of the community? Where is the absurdity of having thirteen revenues? Will they clash with, or injure, each other? If not, why cannot Congress make thirteen distinct laws, and impose the taxes on the general objects of taxation in each State, so as that all persons of the society shall pay equally, as they ought?

He then told you that your continental government will call forth the virtue and talents of America. This being the case, will they encroach on the power of the State governments? Will our most virtuous and able citi

16

that we are as secure there as any where else. What mischief_results from some causes being tried there? Is there not the utmost reason to conclude, that judges wisely appointed, and in

zens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from the worthy gentleman. I think the virtue and talents of the members of the general govern-dependent in their office, will never countement will tend to the security, instead of the destruction, of our liberty. I think that the power of direct taxation is essential to the existence of the general government, and that it is safe to grant it. If this power be not neces-The objection which was made by the honorsary, and as safe from abuse as any delegated power can possibly be, then I say that the plan before you is unnecessary; for it imports not what system we have, unless it have the power of protecting us in time of peace and war.

On the twentieth of June, the first and second sections of the third article of the constitution being under consideration, Mr. Marshall spoke

as follows:

MR. CHAIRMAN: This part of the plan before us, is a great improvement on that system from which we are now departing. Here are tribunals appointed for the decision of controversies, which were before, either not at all, or improperly provided for. That many benefits will result from this to the members of the collective society, every one confesses. zation be defective, and so constructed as to Unless its organiinjure, instead of accommodating the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support it, after the very able manner in which they have investigated and examined it, I conceived it would be no longer considered as so very defective, and that those who opposed it, would be convinced of the impropriety of some of their objections. But I perceive they still continue the same opposition. Gentlemen have gone on an idea, that the federal courts will not determine the causes, which may come before them, with the same fairness and impartiality with which other courts decide. What are the reasons of this supposition? Do they draw them from the manner in which the judges are chosen, or the tenure of their office? What is it that makes us trust our judges? Their independence in office and manner of appointment. Are not the judges of the federal court chosen with as much wisdom as the judges of the State governments? Are they not equally, if not more independent? If so, shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States, as in a particular State, shall we conclude that that wisdom and knowledge will not be equally exercised in the selection of the judges?

The principle on which they object to the federal jurisdiction, seems to me to be founded on a belief, that a fair trial will not be had in those courts. If this committee will consider it fully, they will find it has no foundation, and

nance any unfair trial? What are the subjects of its jurisdiction? Let us examine them with tried there, as elsewhere, and then determine. an expectation that causes will be as candidly able member who was first up yesterday, Mr. Mason, has been so fully refuted, that it is not worth while to notice it. He objected to Congress having power to create a number of inferior courts according to the necessity of public those gentlemen who placed no confidence in circumstances. I had an apprehension that Congress, would object that there might be no inferior courts.

gentlemen would think there would be no inI own that I thought that those ferior courts, as it depended on the will of Concentre of the Union. But I did not conceive, gress, but that we should be dragged to the that the power of increasing the number of courts could be objected to by any gentleman, as it would remove the inconvenience of being dragged to the centre of the United States. I own that the power of creating a number of courts is, in my estimation, so far from being a of this system. After having objected to the defect, that it seems necessary to the perfection number and mode, he objected to the subject matter of their cognizance.

Here Mr. Marshall read the second section.

tion to which he objects, with a few exceptions. These, sir, are the points of federal jurisdicLet us examine each of them, with a supposition that the same impartiality will be observed there, as in other courts, and then see if any mischief will result from them. With respect to its cognizance in all cases arising under the constitution and the laws of the United States, he says, that the laws of the United States being paramount to the laws of the particular States, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, Can they go beyond the delegated powers? If or claims between citizens of the same State? they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void. It will annihilate the State courts, says the man here know, that the causes in our courts honorable gentleman. Does not every gentleare more numerous than they can decide, according to their present construction? Look at the dockets; you will find them crowded with suits, which the life of man will not see deter