profession to which he belonged, all of which evince the highest sentiments of respect and admiration. One of the most carefully prepared and elaborate of these was a discourse delivered at the request of the Suffolk Bar, at Boston, by Mr. Justice Story, which has been freely used in the preparation of this sketch, and to which the reader is referred, as the best and most complete estimate of his life, character, and services. THE FEDERAL CONSTITUTION.* Mr. Marshall delivered the following speech, | gentleman, Mr. Henry, has said.* He has exin the Virginia Convention for the ratification of the Federal Constitution, on the tenth of June, 1788, the preamble and the first and second section of the first article of the constitution being under consideration: patiated on the necessity of a due attention to MR. CHAIRMAN: I conceive that the object of the discussion now before us is, whether democracy or despotism be most eligible. I am sure that those who framed the system, submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty bly, struck out of existence without a trial by and promote our happiness. We admire it, be-jury, without examination, without being concause we think it a well regulated democracy: fronted with his accusers and witnesses, withit is recommended to the good people of this out the benefits of the law of the land? Where country: they are, through us, to declare whe- is our safety, when we are told that this act ther it be such a plan of government as will was justifiable, because the person was not a Socrates? What has become of the worthy establish and secure their freedom. member's maxims? Is this one of them? Shall it be a maxim that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering, that the man's life was not taken secundum artem, because he was a bad man? Shall it be a maxim that government ought not to be empowered to protect virtue? Permit me to attend to what the honorable So general was the conviction that the public welfare required a government of more extensive powers than those vested in the General Government by the Articles of Confederation, that in May, 1787, a convention composed of delegates from all the States in the Union, with the exception of Rhode Island, assembled at Philadelphia, to The honorable member, after attempting to take the subject into consideration. This convention con- vindicate that tyrannical legislative act to which tinued its sessions with closed doors, until the seventeenth I have been alluding, proceeded to take a view of the following September, when the Federal Constitution of the dangers to which this country is exposed. was promulgated. The convention resolved, "That the He told us that the principal danger arose from Constitution be laid before the United States, in Congress a government which, if adopted, would give assembled, and that it is the opinion of this convention that away the Mississippi. I intended to proceed it should afterwards be submitted to a convention of dele-regularly, by attending to the clause under degates, chosen in each State by the people thereof, for their assent and ratification; " and in conformity with this recommendation, Congress, on the twenty-eighth of the same month, passed a resolution directing that the Constitution should be submitted to conventions to be assembled in the several States of the Union. The conventions subsequently assembled, and the expediency of adopting the Constitution was ably and eloquently discussed. bate; but I must reply to some observations which were dwelt upon to make impressions on table. Have we no navigation in, or do we our minds unfavorable to the plan upon the See the speeches of Patrick Henry, at pages 18-39 of the first volume of this work. derive no benefit from, the Mississippi? How They have proposed to our consideration, a shall we retain it? By retaining that weak scheme of government which they thought adgovernment which has hitherto kept it from visable. We are not bound to adopt it, if we us? Is it thus that we shall secure that navi- disapprove of it. Had not every individual in gation? Give the government the power of this community a right to tender that scheme retaining it, and then we may hope to derive which he thought most conducive to the welactual advantages from it. Till we do this, we fare of his country? Have not several gentlecannot expect that a government which hitherto men already demonstrated that the convention has not been able to protect it, will have the did not exceed their powers? But the Congress power to do it hereafter. Have we attended have the power of making bad laws, it seems. too long to consider whether this government | The Senate, with the President, he informs us, would be able to protect us? Shall we wait for may make a treaty which shall be disadvanfurther proofs of its inefficacy? If on mature tageous to us; and that, if they be not good consideration, the constitution will be found to men, it will not be a good constitution. I shall be perfectly right on the subject of treaties, ask the worthy member only, if the people at and containing no danger of losing that navi- large, and they alone, ought to make laws and gation, will he still object? Will he object be- treaties. Has any man this in contemplation? cause eight States are unwilling to part with it? You cannot exercise the powers of government This is no good ground of objection. personally yourselves. You must trust to agents. If so, will you dispute giving them the power of acting for you, from an existing possibility that they may abuse it? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, because there is a possibility of their abusing it, you can have no government; for the power of doing good is inseparable from that of doing some evil. He then stated the necessity and probability of obtaining amendments. This we ought to postpone until we come to that clause, and make up our minds whether there be any thing unsafe in this system. He conceived it impossible to obtain amendments after adopting it. If he was right, does not his own argument prove that in his own conception, previous amendments cannot be had? for, sir, if subsequent amendments cannot be obtained, shall we get amendments before we ratify? The reasons against the latter do not apply against the former. There are in this State, and in every State in the Union, many who are decided enemies of the Union. Reflect on the probable conduct of such men. What will they do? They will bring amendments which are local in their nature, and which they know will not be accepted. What security have we that other States will not do the same. We are told that many in the States were violently opposed to it. They are more mindful of local interests. They will never propose such amendments as they think would be obtained. Disunion will be their object. This will be attained by the proposal of unreasonable amendments. This, sir, though a strong cause, is not the only one that will militate against previous amendments. Look at the comparative temper of this country now, and when the late Federal Convention | met. We had no idea then of any particular system. The formation of the most perfect plan was our object and wish. It was imagined that the States would accede to, and be pleased with, the proposition that would be made them. Consider the violence of opinions, the prejudices and animosities which have been since imbibed. Will not these operate greatly against mutual concessions, or a friendly concurrence? This will, however, be taken up more properly another time. He says, we wish to have a strong, energetic, powerful government. We contend for a well-regulated democracy. He insinuates that the power of the government has been enlarged by the convention, and that we may apprehend it will be enlarged by others. The zonvention did not, in fact, assume any power. We may derive from Holland lessons very beneficial to ourselves. Happy that country which can avail itself of the misfortunes of others-which can gain knowledge from that source without fatal experience! What has produced the late disturbances in that country? The want of such a government as is on your table, and having in some measure, such a one as you are about to part with. The want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties, and inviting foreign powers to interpose in their disputes, have subjected them to all the mischiefs which have interrupted their harmony. I cannot express my astonishment at his high-colored eulogium on such a government. thing be more dissimilar than the relation between the British government and the colonies, and the relation between Congress and the States? We were not represented in Parliament. Here we are represented. Arguments which prove the impropriety of being taxed by Britain, do not hold against the exercise of taxation by Congress. Can any Let me pay attention to the observation of the gentleman who was last up, that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this House. This power I think essentially necessary; for without it there will be no efficiency in the government. We have had a sufficient demonstration of the vanity of depending on requisitions. How, then, can the general government exist without this power? The possibility of its being abused is urged as an argument against its expediency. To very little purpose did Virginia discover the defects 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 to carry them into effect. If a system of government were devised by more than human intelligence, it would not be effectual if the means were not adequate to the power. All delegated powers are liable to be abused. Arguments drawn from this source go in direct opposition to the government, and in recommendation of anarchy. The friends of the constitution are as tenacious of liberty as its enemies. They wish to give no power that will endanger it. They wish to give the government powers to secure and protect it. Our inquiry here must be, whether the power of taxation be necessary to perform the objects of the constitution, and whether it be safe, and as well guarded as human wisdom can do it. What are the objects of the national government? To protect the United States, and to promote the general welfare. Protection, in time of war, is one of its principal objects. Until mankind shall cease to have ambition and avarice, wars will arise. The prosperity and happiness of the people depend on the performance of these great and important duties of the general government. Can these duties be performed by one State? Can one State protect us, and promote our happiness? The honorable gentleman who has gone before me, Governor Randolph, has shown that Virginia cannot do these things. How, then, can they be done? By the national government only. Shall we refuse to give it power to do them? We are answered, that the powers may be abused; that, though the Congress 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. The nature of man forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the 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. vite them by our weakness to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place. It is, then, necessary to give the government that power, in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared. The experience of the world, a knowledge of human nature, and our own particular experience, will confirm this truth. When danger shall come upon us, may we not do what we were on the point of doing once already—that is, appoint a dictator? Were those who are now friends to this constitution less active in the defence of liberty, on that trying occasion, than those who oppose it? When foreign dangers come, may not the fear of immediate destruction, by foreign enemies, impel us take a most dangerous step? Where, then, will be our safety? We may now regulate and frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. If we be prepared to defend ourselves, there will be little inducement to attack us. But if we defer giving the necessary power to the general government till the moment of danger arrives, we shall give it then, and with an unsparing hand. America, like other natics, may be exposed to war. The propriety of giving this power will be proved by the history of the world, and particularly of modern republics. I defy you to produce a single instance where requisitions on several individual States, composing a confederacy, have been honestly complied with. Did gentlemen expect to see such punctuality complied with in America? If they did, our own experience shows the contrary. We are told that the confederation carried us through the war. Had not the enthusiasm of liberty inspired us with unanimity, that system 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 was fully discovered. A bare sense of duty, or a regard to propriety, is too feeble to induce 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. Requisitions cannot be effectual. They will be productive of delay, and will ultimately be inefficient. By direct taxation, the necessities of the government will be supplied in a peaceable manner, without irritating the minds of the people. But requisitions cannot be rendered efficient without a civil war-without great expense of money, and the blood of our citizens. Are there any other means? Yes, that Congress shall apportion the respective quotas previously, and if not complied with by the States, that then this dreaded power shall be exercised. The operation of this has been described by the gentleman who opened the debate. He cannot be answered. This great objection to that system remains unanswered. Is there no other argument which ought to have weight with us on this subject? Delay is a strong and pointed objection to it. We are told by the gentleman who spoke last, that direct taxation is unnecessary, because we are not involved in war. This admits the propriety of recurring to direct taxation if we were engaged in war. It has not been proved that we have no dangers to apprehend on this point. What will be the consequence of the system proposed by the worthy gentleman? Suppose the States should refuse? The worthy gentleman who is so pointedly opposed to the constitution, proposes remonstrances. Is it a time for Congress to remonstrate or compel a compliance with requisitions, when the whole wisdom of the Union, and the power of Congress are opposed to a foreign enemy? Another alternative is, that, if the States shall appropriate certain funds for the use of Congress, Congress shall not lay direct taxes. Suppose the funds appropriated by the States, for the use of Congress, should be inadequate; it will not be determined whether they be insufficient till after the time at which the quota ought to have been paid; and then, after so long a delay, the means of procuring money, which ought to have been employed in the first instance, must be recurred to. May they not be amused by such ineffectual and temporizing alternatives from year to year, until America shall be enslaved? The failure in one State will authorize a failure in another. The calculation in some States that others will fail, will produce general failures. This will, also, be attended with all the expenses which we are anxious to avoid. What are the advantages to induce us to embrace this system? If they mean that requisitions should be complied with, it will be the same as if Congress had the power of direct taxation. The same amount will be paid by the people. It is objected, that Congress will not know how to lay taxes, so as to be easy and convenient for the people at large. Let us pay strict attention to this objection. If it appears to be totally without foundation, the necessity of levying direct taxes will obviate what the gentleman says; nor will there be any color for refusing to grant the power. The objects of direct taxes are well understood: they are but few; what are they? Lands, slaves, stock of all kinds, and a few other arti cles of domestic property. Can you believe that ten mer, selected from all parts of the State, chosen because they know the situation of the people, will be unable to determine so as to make the tax equal on, and convenient for, the people at large? Does any man believe that they would lay the tax without the aid of other information besides their own knowledge, when they know that the very object for which they are elected is to lay the taxes in a judicious and convenient manner? If they wish to retain the affections of the people at large, will they not inform themselves of every circumstance that can throw light on the subject? Have they but one source of information? Besides their own experience-their knowledge of what will suit their constituents they will have the benefit of the knowledge and experience of the State legislature. They will see in what manner the legislature of Virginia collects its taxes. Will they be unable to follow their example? The gentlemen who shall be delegated to Congress will have every source of information that the legislatures of the States can have, and can lay the taxes as equally on the people, and with as little oppression as they can. If, then, it be admitted that they can understand how to lay them equally and conveniently, are we to admit that they will not do it, but that in violation of every principle that ought to govern men, they will lay them so as to oppress us? What benefit will they have by it? Will it be promotive of their re-election? Will it be by wantonly imposing hardships and difficulties on the people at large, that they will promote their own interest, and secure their re-election? To me it appears incontrovertible that they will settle them in such a manner as to be easy for the people. Is the system so organized as to make taxation dangerous? I shall not go to the various checks of the government, but examine whether the immediate representation of the people be well constructed. I conceive its organization to be sufficiently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the House of Representatives. If there be no impropriety in the mode of electing the representatives, can any danger be apprehended? They are elected by those who can elect representatives in the State legislature. How can the votes of the electors be influenced? By nothing but the character and conduct of the man they vote for. What object can influence them when about choosing him? They have nothing to direct them in the choice but their own good. Have you not as pointed and strong a security as you can possibly have? It is a mode that seems an impossibility of being corrupted. If they are to be chosen for their wisdom, virtue, integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it? Will not such abuse militate against 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 The honorable gentleman has asked if there forth and proportion all the strength of the be any safety or freedom, when we give away Union. That economy and industry are essen- the sword and the purse. Shall the people at tial to our happiness, will be denied by no man. large hold the sword and the purse without the But the present government will not add to our interposition of their representatives? Can the industry. It takes away the incitements to in- whole aggregate community act personally? dustry, by rendering property insecure and un-I apprehend that every gentleman will see the protected. 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 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 |