SPEECH OF JOHN MARSHALL.

ON THE EXPEDIENCY OF ADOPTING THE

FEDERAL CONSTITUTION,

DELIVERED IN THE CONVENTION OF VIRGINIA, JUNE 20th, 1788

The first and second sections of the third article of the constitution being under consideration, Mr. Marshall addressed the convention 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. Unless its organization be defective, and so constructed as to injure, 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 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 independent in their office, will never countenance any unfair trial? What are the subjects of its jurisdiction? Let us examine them with an expectation that causes will be as candidly tried there, as elsewhere, and then determine. The objection, which was made by the honorable 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 circumstances. I had an apprehension that those gentlemen, who placed no confidence in Congress, would object that there might be no inferior courts. I own that I thought, that those gentlemen would think there would be no inferior courts, as it depended on the will of Congress, but that we should be dragged to the centre of the union. But I did not conceive, 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 defect, that it seems necessary to the perfection of this system. After having objected to the number and mode, he objected to the subject matter of their cognizance. [Here Mr. Marshall read the 2d section.] These, sir, are the points of federal jurisdiction to which he objects, with a few exceptions. Let 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, or claims between citizens of the same state? they go beyond the delegated powers? If 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 honorable gentleman. Does not every gentleman here know, that the causes in our courts are 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 determined. If some of these suits be carried to other courts, will it be wrong? They will still have business enough. Then there is no danger that particular subjects, small in proportion, being taken out

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of the jurisdiction of the state judiciaries, will render them useless and of no effect. Does the gentleman think that the state courts will have no cognizance of cases not mentioned here? Are there any words in this constitution, which exclude the courts of the states from those cases which they now possess? Does the gentleman imagine this to be the case? Will any gentleman believe it? Are not controversies respecting lands, claimed under the grants of dif ferent states, the only controversies between citizens of the same state, which the federal judiciary can take cognizance of? The case is so clear, that to prove it would be an useless waste of time. The state courts will not lose the jurisdiction of the causes they now decide. They have a concurrence of jurisdiction with the federal courts in those cases, in which the latter have cognizance.

How disgraceful is it that the state courts cannot be trusted, says the honorable gentleman. What is the language of the constitution? Does it take away their jurisdiction? Is it not necessary that the federal courts should have cognizance of cases arising under the constitution and the laws of the United States? What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly manner, without shedding blood, or creating a contest, or availing yourselves of force? If this be the case, where can its jurisdiction be more necessary than here? To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection. But the honorable member objects to it, because, says he, the of ficers of the government will be screened from merited punishment by the federal judiciary. The federal sheriff, says he, will go into a poor man's house and beat him, or abuse his family, and the federal court will protect him. Does any gentleman believe this? Is it necessary that the officers shall commit a trespass on

the property or persons of those with whom they are to transact business? Will such great insults on the people of this country be allowable? Were a law made to authorize them, it would be void. The injured man would trust to a tribunal in his neighborhood. To such a tribunal he would apply for redress, and get it. There is no reason to fear that he would not meet that justice there, which his country will be ever willing to maintain. But on appeal, says the honorable gentleman, what chance is there to obtain justice? This is founded on an idea, that they will not be impartial. There is no clause in the constitution, which bars the individual member injured, from applying to the state courts to give him redress. He says, that there is no instance of appeals as to fact in common. law cases. The contrary is well known to you, Mr. Chairman, to be the case in this commonwealth. With respect to mills, roads and other cases, appeals lie from the inferior to the superior court, as to fact as well as law. Is it clear, that there can be no case in common law, in which an appeal as to fact might be proper and necessary? Can you not conceive a case where it would be productive of advantages to the people at large, to submit to that tribunal the final determination, involving facts as well as law? Suppose it should be deemed for the convenience of the citizens, that those things which concerned foreign ministers, should be tried in the inferior courts: if justice should be done, the decision would satisfy all. But if an appeal in matters of fact could not be carried to the superior court, then it would result, that such cases could not be tried before the inferior courts, for fear of injurious and partial decisions.

But, sir, where is the necessity of discriminating between the three cases of chancery, admiralty and common law? Why not leave it to Congress? Will it enlarge their powers? Is it necessary for them wantonly to infringe your rights? Have you any thing to apprehend, when they can, in no case, abuse their