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America: I. (1761–1837). 1906.

John Marshall

On the Federal Constitution

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 and promote our happiness. We admire it because we think it a well-regulated democracy: it is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom.

Permit me to attend to what the honorable gentleman, Mr. Henry, has said. He has expatiated on the necessity of a due attention to certain maxims, to certain fundamental principles from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in every government, but more essential to a democracy than to any other.

What are the favorite maxims of democracy? A strict observance of justice and public faith and a steady adherence to virtue. These, sir, are the principles of a good government. No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith. Would to heaven that these principles had been observed under the present government! Had this been the case the friends of liberty would not be so willing now to part with it. Can we boast that our government is founded on these maxims? Can we pretend to the enjoyment of political freedom or security when we are told that a man has been, by an act of Assembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land? Where is our safety when we are told that this act was justifiable because the person was not a Socrates? What has become of the worthy 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 a man’s life was not taken secundem artem, because he was a bad man? Shall it be a maxim that government ought not to be empowered to protect virtue?

The honorable member, after attempting to vindicate that tyrannical legislative act to which I have been alluding, proceeded to take a view of the dangers to which this country is exposed. He told us that the principal danger arose from a government which, if adopted, would give away the Mississippi.

I intended to proceed regularly by attending to the clause under debate; but I must reply to some observations which were dwelt upon to make impressions on our minds unfavorable to the plan upon the table. Have we no navigation in, or do we derive no benefit from, the Mississippi? How shall we retain it? By retaining that weak government which has hitherto kept it from us? Is it thus that we shall secure that navigation? Give the government the power of retaining it and then we may hope to derive actual advantages from it. Till we do this we can not expect that a government which hitherto has not been able to protect it will have the power to do it hereafter. Have we attended too long to consider whether this government would be able to protect us? Shall we wait for further proofs of its inefficacy? If on mature consideration the Constitution will be found to be perfectly right on the subject of treaties and containing no danger of losing that navigation, will he still object? Will he object because eight States are unwilling to part with it? This is no good ground of objection.

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 anything 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 can not be had? for, sir, if subsequent amendments can not 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, tho a strong cause, is not the only we 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 convention did not, in fact, assume any power.

They have proposed to our consideration a scheme of government which they thought advisable. We are not bound to adopt it if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several gentlemen already demonstrated that the Convention did not exceed their powers? But the Congress have the power of making bad laws, it seems. The Senate, with the president, he informs us, may make a treaty which shall be disadvantageous to us; and that, if they be not good men, it will not be a good constitution. I shall ask the worthy member only if the people at large, and they alone, ought to make laws and treaties. Has any man this in contemplation?

You can not exercise the powers of government 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.

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 in 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 not the means of carrying it on. Are the people of England more secure if the Commons have no voice in declaring war? or are we less secure by having the Senate joined with the president? It is an absurdity, says the worthy member, that the same man should obey two masters, that the same collector should gather taxes for the general government and the State Legislature. Are they not both the servants of the people? Are not Congress and the State Legislature the agents of the people, and are they not to consult the good of the people? May this not be effected by giving the same officer the collection of both taxes? He tells you that it is an absurdity to adopt before you amend. Is the object of your adoption to amend solely? The objects of your adoption are union, safety against foreign enemies, and protection against faction—against what has been the destruction 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 inconvenience we can then correct it. But until we have experience on the subject, amendments as well as the Constitution itself are to be tried.

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 reasons which applied against them could not be urged against it. Do they not hold out one lesson very useful to us? However unlike in other respects, they resemble it in its total inefficacy. They warn us to shun their calamities, and place in our government those necessary powers the want of which destroyed them. I hope we shall avail ourselves of their misfortunes without experiencing them. There was something peculiar in one observation he made. He said that those who governed the cantons of Switzerland were purchased by foreign powers, which was the cause of their uneasiness and trouble. How does this apply to us? If we adopt such a government as theirs, will it not be subject to the same inconvenience? Will not the same cause produce the same effect? What shall protect us from it? What is our security?

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. Tho an immense ocean divides us we may speedily see them with us. What dangers may we not apprehend to our commerce! Does not our naval weakness invite an attack on our commerce? May not the Algerines seize our vessels? Can not 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 anything 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. Can not 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 can not Congress make thirteen distinct laws and impose the taxes on the general objects of taxation in each State so that all persons of 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 citizens 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 government 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 necessary, 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.