Volume I Part 49 (1/2)

As to the navigation of the Mississippi, he asked: ”How shall we retain it? By retaining that weak government which has. .h.i.therto kept it from us?” No, exclaimed Marshall, but by a Government with ”the power of retaining it.” Such a Government, he pointed out, was that proposed in the Const.i.tution. Here again the Const.i.tutionalist managers displayed their skill. Marshall was the best man they could have chosen to appeal to the Kentucky members on the Mississippi question. His father, mother, and his family were now living in Kentucky, and his relative, Humphrey Marshall, was a member of the Convention from that district.[1246]

Marshall himself was the legislative agent of the District of Kentucky in Richmond. The development of the West became a vital purpose with John Marshall, strengthening with the years; and this was a real force in the growth of his views on Nationality.[1247]

Henry's own argument, that amendments could not be had after adoption, proved, said Marshall, that they could not be had before. In all the States, particularly in Virginia, there were, he charged, ”many who are decided enemies of the Union.” These were inspired by ”local interests,”

their object being ”disunion.” They would not propose amendments that were similar or that all could agree upon. When the Federal Convention met, said Marshall, ”we had no idea then of any particular system. The formation of the most perfect plan was our object and wish”; and, ”it was imagined” that the States would with pleasure accept that Convention's work. But ”consider the violence of opinions, the prejudices and animosities which have been since imbibed”; and how greatly they ”operate against mutual concessions.”

Marshall reiterated that what the Const.i.tutionalists were fighting for was ”a well-regulated democracy.” Could the people themselves make treaties, enact laws, or administer the Government? Of course not. They must do such things through agents. And, inquired he, how could these agents act for the people if they did not have power to do so? That the people's agents might abuse power was no argument against giving it, for ”the power of doing good is inseparable from that of doing some evil.”

If power were not given because it might be misused, ”you can have no government.” Thus Marshall stated that principle which he was to magnify from the Supreme Bench years later.

”Happy that country,” exclaimed the young orator, ”which can avail itself of the misfortunes of others ... without fatal experience!”

Marshall cited Holland. The woes of that country were caused, said he, by ”the want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties”--in short, by such a government, or rather absence of government, as America then had under the Confederation. If Holland had had such a government as the Const.i.tution proposed, she would not be in her present sorry plight. Marshall was amused at Henry's ”high-colored eulogium on such a government.”

There was no a.n.a.logy, argued he, between ”the British government and the colonies, and the relation between Congress and the states. We _were not_ represented in Parliament. Here [under the Const.i.tution] we are represented.” So the arguments against British taxation ”do not hold against the exercise of taxation by Congress.” The power of taxation by Congress to which Henry objected was ”essentially necessary; for without it there will be no efficiency in the government.” That requisitions on the States could not be depended on had been demonstrated by experience, he declared; the power of direct taxation was, therefore, necessary to the very existence of the National Government.

”The possibility of its being abused is urged as an argument against its expediency”; but, said Marshall, such arguments would prevent all government and result in anarchy. ”All delegated powers are liable to be abused.” The question was, whether the taxing power was ”necessary to perform the objects of the Const.i.tution?... What are the objects of national government? To protect the United States, and to promote the general welfare. Protection, in time of war, is one of its princ.i.p.al objects. Until mankind shall cease to have ambition and avarice, wars will arise.”

Experience had shown, said Marshall, that one State could not protect the people or promote general welfare. ”By the national government only”

could these things be done; ”shall we refuse to give it power to do them?” He scorned the a.s.sertion ”that we need not be afraid of war. Look at history,” he exclaimed, ”look at the great volume of human nature.

They will foretell you that a defenseless country cannot be secure. The nature of men forbids us to conclude that we are in no danger from war.

The pa.s.sions 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 invite them by our weakness to attack us, will they not do it? If we add debility to our present situation, a part.i.tion of America may take place.”

The power of National taxation, therefore, was necessary, Marshall a.s.serted. ”There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose?” If so, ”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.” History, human nature, and ”our own particular experience, will confirm this truth.” If danger should come upon us without power to meet it, we might resort to a dictators.h.i.+p; we once were on the point of doing that very thing, said he--and even Henry and Mason did not question this appeal of Marshall to the common knowledge of all members of the Convention.

”Were those who are now friends to this Const.i.tution less active in the defense of liberty, on that trying occasion, than those who oppose it?”

scathingly asked Marshall. ”We may now ... 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_.”

It was not true, a.s.serted Marshall, that the Confederation carried us through the Revolution; ”had not the enthusiasm of liberty inspired us with unanimity, that system would never have carried us through it.” The war would have been won much sooner ”had that government been possessed of due energy.” The weakness of the Confederation and the conduct of the States prolonged the war. Only ”the extreme readiness of the people to make their utmost exertions to ward off solely the pressing danger, supplied the place of requisitions.” But when this danger was over, the requisition plan was no longer effective. ”A bare sense of duty,” said he, ”is too feeble to induce men to comply with obligations.”

It was plain, then, Marshall pointed out, that ”the government must have the sinews of war some other way.” That way was by direct taxation which would supply ”the necessities of government ... in a peaceable manner”; whereas ”requisitions cannot be rendered efficient without a civil war.”

What good would it do for Congress merely to remonstrate with the States, as Henry had proposed, if we were at war with foreign enemies?

There was no danger that Congress, under the Const.i.tution, would not lay taxes justly, a.s.serted Marshall; for if members of Congress laid unjust taxes, the people would not reelect them. Under the Const.i.tution, they were chosen by the same voters who elected members of the State Legislature. These voters, said he, ”have nothing to direct them in the choice but their own good.” Men thus elected would not abuse their power because that would ”militate against their own interest.... To procure their reelection, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their own good.”

Henry had asked whether the adoption of the Const.i.tution ”would pay our debts.” ”It will compel the states to pay their quotas,” answered Marshall. ”Without this, Virginia will be unable to pay. Unless all the states pay, she cannot.... Economy and industry are essential to our happiness”; but the Confederation ”takes away the incitements to industry, by rendering property insecure and unprotected.” The Const.i.tution, on the contrary, ”will promote and encourage industry.”

The statement of the Anti-Const.i.tutionalists that the extent of the country was too great for a strong National Government was untrue, argued Marshall. Also, said he, this objection was from writers who criticized those governments ”where representation did not exist.” But, under the Const.i.tution, representation would exist.

Answering Henry's objection, that there were no effective checks in the Const.i.tution, Marshall inquired, ”What has become of his enthusiastic eulogium on the American spirit?” There, declared Marshall, was the real check and control. ”In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own.” In such considerations were found the greatest security from an improper exercise of power.

”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?... 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.”

Returning to the subject of amendments, ”what,” asked Marshall, ”shall restrain you from amending it, if, in trying it, amendments shall be found necessary.... When experience shall show us any inconvenience, we can then correct it.... If it be necessary to change government, let us change that government which has been found to be defective.” The Const.i.tution as it stood filled the great objects which everybody desired--”union, safety against foreign enemies, and protection against faction [party]--against what has been the destruction of all republics.”

He turned Henry's unhappy praise of the British Const.i.tution into a weapon of deadly attack upon the opposition. The proposed Const.i.tution, said Marshall, was far better than the British. ”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 const.i.tutional 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 const.i.tution. If not, then, good as that government may be, this [Const.i.tution] is better.”

Referring to ”the confederacies of ancient and modern times” he said that ”they warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them.” The ocean does not protect us from war; ”Sir,” exclaimed Marshall, ”the sea makes them neighbors to us.... What dangers may we not apprehend to our commerce! Does not our naval weakness invite an attack on our commerce?”

Henry had said ”that our present exigencies are greater than they will ever be again.” But, asked he, ”Who can penetrate into futurity?”

Henry's objection that the National Government, under the Const.i.tution, would ”call forth the virtue and talents of America,” to the disadvantage of the States, was, Marshall said, the best guarantee that the National Government would be wisely conducted. ”Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly?” On the contrary, ”the virtue and talents of the members of the general government will tend to the security instead of the destruction of our liberty.... The power of direct taxation is essential to the existence of the general government”; if not, the Const.i.tution was unnecessary; ”for it imports not what system we have, unless it have the power of protecting us in time of war.”[1248]