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ought well to weigh the good and evil before we determine. We ought to be well convinced that the evil will be really produced before we decide against it. If we be convinced that the good greatly preponderates, though there be small defects in it, shall we give up that which is really good, when we can remove the little mischief it may contain, in the plain, easy method pointed out in the system itself?

I was astonished when I heard the honorable gentleman say that he wished the trial by jury to be struck out entirely. Is there no justice to be expected by a jury of our fellow citizens? Will any man prefer to be tried by a court, when the jury is to be of his countrymen, and probably of his vicinage? We have reason to believe the regulations with respect to juries will be such as shall be satisfactory. Because it does not contain all, does it contain nothing? But I conceive that this committee will see there is safety in the case, and that there is no mischief to be apprehended.

He states a case, that a man may be carried from a federal to an anti-federal corner (and vice versa) where men are ready to destroy him. Is this probable? Is it presumable that they will make a law to punish men who are of different opinions in politics from themselves? Is it presumable that they will do it in one single case, unless it be such a case as must satisfy the people at large? The good opinion of the people at large must be consulted by their representatives; otherwise, mischiefs would be produced which would shake the government to its foundation. As it is late, I shall not mention all the gentleman's argument, but some parts of it are so glaring that I cannot pass them over in silence. He says that the establishment of these tribunals, and more particularly in their jurisdiction of controversies between citizens of these states and foreign citizens and subjects, is like a retrospective law. Is there no difference between a tribunal which shall give justice and effect to an existing right, and creating a right that did not exist before? The debt or claim is created by the individual. He has bound himself to comply with it. Does the creation of a new court amount to a retrospective law?

We are satisfied with the provision made in this country on the subject of trial by jury. Does our Constitution direct trials to be by jury? It is required in our bill of rights, which is not a part of the Constitution. Does any security arise

from hence? Have you a jury when a judgment is obtained on replevin bond, or by default? Have you a jury when a motion is made for the commonwealth against an individual; or when a motion is made by one joint obligor against another, to recover sums paid as security? Our courts decide in all these cases, without the intervention of a jury; yet they are all civil cases. The bill of rights is merely recommendatory. Were it otherwise, the consequence would be that many laws which are found convenient would be unconstitutional. What does the government before you say? Does it exclude the legislature from giving a trial by jury in civil cases? If it does not forbid its exclusion, it is on the same footing on which your state government stands now. The legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient. The federal legislature will do so too, as it is formed on the same principles.

The honorable gentleman says that unjust claims will be made, and the defendant had better pay them than go to the Supreme Court. Can you suppose such a disposition in one of your citizens, as that, to oppose another man, he will incur great expenses? What will he gain by an unjust demand? Does a claim establish a right? He must bring his witnesses to prove his claim. If he does not bring his witnesses, the expenses must fall upon him. Will he go on a calculation that the defendant will not defend it, or cannot produce a witness? Will he incur a great deal of expense, from a dependence on such a chance? Those who know human nature, black as it is, must know that mankind are too well attached to their interest to run such a risk. I conceive that this power is absolutely necessary, and not dangerous; that, should it be attended by little inconveniences, they will be altered, and that they can have no interest in not altering them. Is there any real danger? When I compare it to the exercise of the same power in the government of Virginia, I am persuaded there is not. The federal government has no other motive, and has every reason for doing right which the members of our state legislatures have. Will a man on the eastern shore be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern shore to have his trial ? A government, by doing this, would destroy itself. I am convinced the trial by

jury will be regulated in the manner most advantageous to the community.

SPEECH OF JOHN MARSHALL ON THE DEATH OF

WASHINGTON Delivered December 18, 1799, in National House of Representatives MR. SPEAKER:

The melancholy event which was yesterday announced with doubt, has been rendered but too certain. Our Washington is no more! The Hero, the Sage, and the Patriot of America — the man on whom, in times of danger, every eye was turned, and all hopes were placed — lives now only in his own great actions, and in the hearts of an affectionate and afflicted people.

If, Sir, it had not been usual openly to testify respect for the memory of those whom Heaven had selected as its instruments for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents which have marked the life of him whose loss we all deplore, that the whole American nation, impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal.

More than any other individual, and as much as to any one individual was possible, has he contributed to found this, our wide-spreading empire, and to give the Western world its independence and freedom. Having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the ploughshare, and voluntarily sinking the soldier in the citizen.

Having been twice unanimously chosen the Chief Magistrate of a free people, we see him, at a time when his re-election, with the universal, could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life.

However the public confidence may change, and the public affections fluctuate with respect to others, yet, with respect to him, they have in war and in peace, in public and private life, been as steady as his own firm mind, and as constant as his own exalted virtues.

Let us then, Mr. Speaker, pay the last tribute of respect

and affection to our departed friend — let the Grand Council of the nation display those sentiments which the nation feels.

For this purpose, I hold in my hand some resolutions, which I will take the liberty to offer to the House.

The rumor that Washington had died reached Philadelphia the day before the above speech was made, - December 17, On that day Marshall, “ in a voice that bespoke the anguish of his mind and with a countenance expressive of the deepest regret,” rose, and after stating the calamity that had probably befallen the country, moved an adjournment of the House. The next day, with suppressed voice and deep emotion,” he made the above speech. When we recall how solicitous Washington was that Marshall should become a member of Congress, and how gratified he was at his election, we cannot but be struck with the circumstance that it was among the first of Marshall's duties to announce the death of the illustrious Washington.

The resolutions that Marshall mentioned were those drafted by General Lee, the last of which described Washington as

first in war, first in peace, and first in the hearts of his countrymen.

CHAPTER VI

THE KERNEL OF MARSHALL'S DECISIONS, — THE THINGS THAT

MADE HIM THE EXPOUNDER OF THE CONSTITUTION

QUOTATIONS made from the decisions of Chief Justice Marshall show precisely what his political and economic doctrines

were.

THE PREAMBLE AND FORMATION OF THE CONSTITUTION

OF U. S. In Barron v. Mayor," Chief Justice Marshall gives his views on the formation of the Constitution as follows:

“The Constitution of the United States was ordained and established by the people of the United States, for themselves, for their own government, and not for the government of the individual States. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests.” In the case of M'Culloch v. Maryland ? Chief Justice Marshall says: “The Convention which framed the Constitution was indeed, elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretentions to it. It was reported to the then existing Congress of the United States, with a request that it might be submitted to a Convention of Delegates, chosen in each State by the people thereof, under the recommendation of its legislatures, for their assent and ratification. This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States, and where else should they have assembled ? No political dreamer was

17 Peters, 247.
24 Wheaton, 403.

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