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[Robert James Turnbull]

Magna est veritas, et prevalebit.

Brutus had rather be a villager,

Than to repute himself, a son of Rome,

Under such HARD conditions, as THIS TIME

Is like to lay on us. — Julius Caesar



NO. 4 Broad-Street.


"All policy is very suspicious, (says an eminent statesman) that sacrifices the interest of any part of a community, to the ideal good of the whole; and those Governments only, are tolerable, where, by the necessary construction of the political machine, the interests of all the parties are obliged to be protected by it." Here is a district of country, extending from the Patapsco to the Gulf of Mexico, from the Alleghany to the Atlantic; a district, which, taking in all that part of Maryland, lying South of the Patapsco, and East of Elk river, raises five sixths of all the exports of this country, that are of home growth. I have in my hand, the official statements which will prove it, but which I will not weary the House by reading. In all this country! Yes, Sir, and I bless God for it; for with all the fantastical and preposterous theories about the rights of man, (the theories, not the rights themselves, I speak of) there is nothing but power that can restrain power. I bless God, that in this insulted, oppressed, and outraged region, we are, as to our counsels in regard to this measure, b[]' man; that there exists on this subject, but one feeling, and one interest. []scribed, and put to the ban; and, if we do not feel, and feeling, do not act, [] bastards to those fathers who achieved the Revolution: then shall we deserve to make bricks without straw.

There is no case on record, in which a proposition like this, suddenly changing lite whole frame of a country's polity, tearing asunder every ligature of the body politic, was ever carried by a lean majority of two or three votes, unless it be the usurpation of the Septennial act, which passed the British Parliament, by, I think, a majority of one vote, the same that laid the tax on Cotton Bagging. I do not stop here, Sir, to argue about the constitutionality of this Bill. I consider the Constitution a dead letter. I consider it to consist, at this time, of the power of the General Government, and the power of the States — that is the Constitution. You may entrench yourself in parchment to the teeth, says Lord Chatham, the sword will find its way to the vitals of the Constitution. I have no faith in parchment, Sir; I have no faith in the Abracadabra of the Constitution; I have no faith in it. I have faith in the power of that Common wealth, of which I am an unworthy son; in the power of those Carolinas, and of that Georgia, in her ancient and utmost extent to the Mississippi, which went with us through the valley of the shadow of death, in the war of our independence. I have said, that I shall not stop to discuss the constitutionality of this question, for that reason, and for a better; that there never was a Constitution under the sun, in which, by an unwise exercise of the powers of the Government, the people may not be driven to the extremity of resistance by force For it is not, perhaps, so much by the assumption of unlawful powers, as by the unwise or unwarantable use of those which are most legal,that Governments oppose their true end and object; for there is such a thing as tyranny as well as usurpation. If, under a power to regulate trade, you prevent exportation: if, with the most approved spring lancets, you draw the last drop of blood from our veins; if, secundem artem, you draw the last shilling from our pockets, what are the checks of the Constitution, to us? A fig for the Constitution? When the scorpion's sting is probing us to the quick, shall we stop to chop logic? Shall we get some learned and cunning clerk to say, whether the power to do this, is to be found in the Constitution, and then, if he, from whatever motive, shall maintain the affirmative, like the animal whose fleece forms so material a portion of this bill, "quietly lie down and be shorn!" John Randolph.

[Extract from Speech, delivered in the House of Representatives, on the Tariff Bill, April 15th, 1824.




The “Plantation States"





For their Rights of Sovereignty,




THE numbers of "The Crisis" appeared a few weeks since in the columns of the "Charleston Mercury," and having attracted more attention than was anticipated, they are now re-published, together with eleven additional numbers, the publication of which, was prevented from a cause not now necessary to be noticed. The new numbers are No. 22 and No. 24, to No. 33, both inclusive. The two numbers signed "Philo-Brutus," which appeared at the same time, are not herewith published. They were not written by Brutus.

The Author was fully aware when he commenced these Essays, that they would meet with the marked displeasure of certain native gentlemen of Charleston, and he has not been mistaken. These gentlemen have freely bestowed upon them the harshest epithets; but as their influence does not actually extend beyond their own little coteries, their opinions are disregarded. From all other quarters of the State, they have met with a reception flattering to the Author. Brutus may possibly be wrong in his opinions. If he be so, let him be corrected by fair argument; but let him not be abused for vindicating the rights of his native Southern country to which he is attached by no ordinary ties; and in which his dust is likely to be mingled with that of father, mother, children and friends.

He regrets that an idea has gone forth, that he has received assistance in these numbers; and fearing that the odium (which some have attached to them) might fall on some unoffending and innocent person, he feels it to be his duty, distinctly to state, that whatever of patriotism or of treason, of merit or of blame, moral or literary, the present publication may be supposed to contain, it belongs to one. person alone. The pieces are all written by Brutus. Between him and any other person there is no participation of authorship, and particularly as regards the fifteenth number. The design, the research, the arrangement and the argument, all belong to an individual who has no pursuit but Agriculture; and who, if he has a knowledge of his own heart, has had, from the beginning to the end, no other view than the good of his country.

Charleston, l22nd October, 1827.


Magna est Veritas, et prevalebit.

NO. 1.

IT is amongst the invaluable privileges of the citizen, as secured to him by the Constitution, that he has the right, at all times, to address his fellow-citizens, on the subject of their rights, their interests, or their safety. It is a right which has been freely exercised since the foundation of the government; and it is no trifling eulogy on the Constitution itself, and on the attachment of our citizens to those principles of civil liberty for which our patriots toiled in the Cabinet and bled in the field, that in almost every period of our history as an independent nation, no attempt has been made by Congress, or any disposition manifested by the people, to interrupt or abridge the freedom of the press. The sedition law of the elder Adams, it is true, was a memorable exception; and to this might be added some hasty proceedings on the part of the people, as in the case of the Baltimore mob in 1812. But these examples were of such short duration, and their occurrence so odious generally to the public feeling, that they rather serve to strengthen than to impair my position: that freedom of the press, is the universally recognized right of our people, and that in the uninterrupted practical enjoyment of this species of civil liberty, the United States stand pre-eminently distinguished above all the nations of the earth.

Undoubted, however, as is the right, and as unlimited generally as has been its exercise in our happy land, yet who can look back upon our history, and not deeply lament that it has often been productive of much public evil. Under the dominion of the press, private character has been wantonly assailed; the purest patriots have been denounced as traitors; and noisy and worthless demagogues have been elevated to power. But these were evils inseparable from this great palladium of our liberties; and amidst the devastation that has been made by the licentiousness of the American press, it is a consolation to reflect, that there were circumstances in some periods of our history, which may never again occur, and which, whilst they did exist, were calculated to give the bitterest character to political discussions.

Happily, however, these times have now passed away, never again to return. We now hear of no odious distinctions between one set of our citizens and another. The second war with Britain had the happy effect of uniting many, who before were divided, and at the last treaty of peace, all good men were as astounded, as they were delighted, at the unexpected and abundant harvest of glory which was gathered for us in that war; and party and political animosity, in the aggravated forms in which they once existed, to the reproach of our country, has ever since gradually subsided and settled down into better feelings. The last Presidential election was of a character to revive and to excite party feeling, and the approaching one indicates, that there will be abundance of it brought to the contest. But yet it is not the envenomed feeling which once divided our people; and when we consider the, magnitude of the contest and the exalted station and the pre-eminent honor, we ought to rejoice that there is not more of excitement. To us, in South-Carolina, it is an especial cause of congratulation, that on the subject of the last and the approaching Presidency, we have been nearly unanimous, and that we are able, for the first time in our history since the inauguration of Gen. Washington to the first honors of the Republic, to view men and measures with a dispassionate and an unprejudiced eye. The present is an era amongst us, in which we are all satisfied to forget and forgive our old bitter dissentions as Federalists and Republicans, and to regard merit and long services as the only legitimate claim to the favour and patronage of the people.

It is in this delightful,and comparatively calm state of the public feeling, as calm as it can ever be expected to be, consistently with the freedom of our institutions; when we are in the full enjoyment of the blessings of peace, and with no prospect of their being interrupted from abroad; when each State has every motive to attend to its own local concerns, and when men are more disposed to look rationally and dispassionately into every subject connected with the welfare of the State; it is this period which I seize to address you on subjects of most vital importance to you. as citizens of South Carolina, and to arouse you to a just and lively sense of the dangers that threaten your temporal prosperity and your domestic quiet; And in so doing, I ask of all who may peruse this and the succeeding numbers, to believe me sincere when I say, that I am not hitched to the car of any one set of politicians. At the last election, I was the advocate neither of Adams, or Crawford, or Clay, and when I gave my free and unbiassed vote for the hero of New-Orleans, it was not because I thought even this man, who has so "nobly filled the measure of his country's glory," as likely to avert the dangers that have long thickened around South-Carolina; but my vote was on political grounds totally distinct. The opinion I then held, I entertain at the present moment. But I beg in the outset to repeat, that as clear and as distinct as is my preference for Gen. Jackson, yet my honest conviction is, that it will make no difference in the deplorable situation and prospects of the Southern States, whether Jackson or Adams shall be called to preside over us. The dangers that threaten us are not attributable to Mr. Adams. They come from a period more distant than the recent era of his inauguration into power. They are dangers Which will approach nearer and nearer to us, under every future Administration, and unless we take some decisive measures to shield ourselves, they must, in due time, bring us to ruin. In my remarks on this subject, I shall fearlessly speak the truth and the whole truth — I have no motive beyond my country's good. I never did, nor do I now, seek office or honors. My feelings, I confess, are more sectional than they are national. "Not that I love Caesar less but that I love Rome more." Not, because I am insensible to the glory and the proud distinction of the American name, but because I believe that to the predominance of these feelings above all others, we are in future to look for the preservation of Southern interests and Southern safety.

NO. 2.

The subject which ought at this moment, to claim the attention of every South-Carolinian, is the tendency of the government towards a firm consolidated national government. This is no idle speculation. It is not a phantom which exists in the distempered minds of the weak, the timid, or the suspicious. It is not even the cry by which aspiring demagogues would climb into popular favour. But it has been for years past, the rational and the well settled apprehension of sober and reflecting men amongst us; of men who soar far above the unworthy, and the selfish motives of office hunters. It will be found to exist in the minds of some of our best and wisest men, and daily becomes to our citizens generally, a source of much inquietude. Perceiving that the Congress claims and exercises powers, never contemplated by the framers of the Constitution of the United States,'they are alarmed, and justly alarmed for the situation of the Southern country, whose safety they feel to consist in the integrity and sovereignty of the individual States. And well may they be alarmed. Within the last six or seven years, Congress has made more rapid strides towards consolidation, than in the thirty previous years. During the whole period of the Federal Administrations, and of the Administrations of Messrs. Jefferson and Madison, nothing ever occurred, of a nature similar to the attempts now made, to extend the powers of Congress, to almost every subject, which relates to the internal order and government of the States. Anxious as were the Federalists, to give strength and efficiency to a government then in its infancy, and to diminish the embarrassment which they erroneously thought it would experience from the State sovereignties, yet no decided system of measures was ever brought forward, threatening such results to the Southern States, as those now pursued by Congress. When the Bill to establish the first Bank of the United States, was before Congress in 1791, and the implied powers of Congress in relation to this subject considered, there was then no settled design amongst its friends, to lay a foundation, upon which they were to commence and continue to raise, great and extensive powers to the government. Had there been any such design, the manner in which the subject was discussed, and the great division of sentiment in Congress and in the Cabinet, was of itself sufficient to forbid a hope of continued and constant success. There were specious arguments to shew the expediency, at that time, of a Rational Bank, and the necessity of such an institution, as a means adapted to the end of the government in the collection and distribution of its revenue.

The decision, however, has been a most unfortunate one for the country; for thus was the foundation laid for augmenting, by construction, the powers of the general government, and upon this example, has a superstructure of implied powers been recently commenced, not by a Federal, but strange to say, by the Republican Administration of Mr. Monroe, which, if continued to be carried on, with the spirit and the industry manifested within the last five years, will very soon place our National Councils on an eminence of power, that will cause the Southern States to tremble for their safety.

It is here to be remarked, that in the long interval between the establishment of the Bank, and the accession of Mr. Monroe to the Presidency, there were occasionally, exercises of power by Congress which were not constitutional, but they were not of a nature to alarm. The most prominent of these for its unconstitutionality, and about which there was no difference of opinion, was the remarkable vote of $100,000 for the relief of the distressed inhabitants of Caraccas, after its earthquake. No man would now rise in Congress, and say, that this appropriation was for "the general welfare of the people of the United States." The truth is, that it was done without reflection, and sprung from that laudable warmth of feeling and sympathy, which we all, in and out of Congress, possessed at the time the news of such an overwhelming calamity reached us. — There were also in the Administrations of Mr. Jefferson and Mr. Madison, appropriations for roads in the Western country; but with the exception of that for the great Cumberland road, these appropriations were trifling. Upon the last mentioned road, upwards of a million of dollars had been expended. It was in Mr. Jefferson's Administration, that this road was proposed to be opened, but the manner in which that measure was recommended by that statesman, evinced that he doubted the constitutional power of Congress to construct it. I pass over the sedition law — it caused the downfal of the men who passed it. But it was during the Administration of Mr. Monroe, that a bold and decided system was determined on in our country The subjects of tariffs and internal improvement being earnestly recommended by the President to Congress, and that body having nearly exhausted all the ordinary subjects of legislation, for which the Constitution had provided, and having, in fact, little or nothing to do, being in a state of peace and friendship with all nations, was glad to hear, of new subjects, on which to exercise its powers, and at length resolved, that it could construct military and other national roads, make canals, improve inland navigation, promote manufactures, and appropriate money to any extent, for. the purpose of promoting, what they would call, the general interests of the States. A new field of power has thus been opened to Congress, as boundless as space itself. All the guards which the framers of the Constitution, and the State Legislatures had cautiously provided, to keep the General Government within its prescribed and limited powers, have been discovered to be utterly useless. There is no measure which concerns the general welfare, immediately, or most remotely, which Congress does not feel itself at liberty to adopt.

To many it may appear a remarkable circumstance in our political history, that when these discussions on the constructive powers of the government first commenced in Congress in 1791, the opposition was not confined, as at present it is, to any particular section of the country. The solution; however, is not difficult. The new constitution at that time, had not long been in operation. Its adoption, it is well known, had been most zealously opposed in every part of the union, and particularly by the largest States in the North and in the South. The two parties which had divided the country on the question of the constitution, had not then entirely died away, but from them were furnished those elements, which, in connection with the effect of the French Revolution upon the public feelings of our citizens, gave rise in a very short time afterwards to those two political parties, the Federalists and Democrats of the United States. Distributed as were the friends and adherents of one or other of these parties, which were then in their infancy, but which afterwards became so distinct and tremendous, and whose convulsions we all remember, it was natural that the advocates and opponents of the Bank, or of any other national measure, should come from every quarter of the Union. But now that these political parties have passed away, and the people of each State begin to think of their own affairs, and in what way they can best promote their local prosperity by improvements amongst themselves, we observe, that in the Northern, Eastern, Middle, and Western States, the people have no fears whatever from the exercise of the implied powers of Congress on any subject; but it is in the South alone where uneasiness begins to manifest itself, and a sensitiveness prevails on the subject of consolidation. The cause is obvious. The more National, and the less Federal, the Government becomes, the more certainly will the interest of the great majority of the States be promoted, but with the same certainty, will the interests of the South be depressed and destroyed. Seeing, as we all do, the subject at this time, not through the mists of prejudice and embittered political animosity, but through the medium of truth, we must perceive at a glance, that the interests of the North and West, are diametrically opposed to the interests of the South, and that to this cause and this alone, are we to ascribe the general acquiescence of the great body of the people of the U. States, in the alarming progress of the General Government to consolidation.

NO. 3.

With all the advances of the government to consolidation, there is no man who at present apprehends, that it would venture, in our day, to encroach upon any of the acknowledged rights expressly reserved to the States. It would not presume to claim the appointment of the officers of the militia; or the authority to train them; or to infringe upon the right of the people in any state to bear arms; or to make any law respecting an establishment of religion, or prohibiting the free exercise of religion; nor would it attempt to abolish the trial by jury. On these and other subjects, which they are forbidden to touch, there is not present danger of encroachment. The people of the North as well as of the South, are materially interested in the preservation of all these essentials of liberty, and in the present state of society and of public opinion, it would be difficult to conceive that the government could even feel the desire to encroach upon the rights of State sovereignty, expressly reserved. The flame that would instantly be excited from one end of the Union to the other, by the undivided feeling of the public, is the surest pledge for the security of all these.

But far different will be the public feeling, where no vital principle of State government, or individual liberty, is involved in the measures of Congress, however clearly unconstitutional such measures may be. Should it happen that the usurpation of the government solely operates upon great and important pecuniary interests, and is founded on no open, palpable breach of an article in the Constitution, forbidding the exercise of the particular power claimed, but claimed merely as a power naturally incident to, and necessarily resulting from other powers specially granted, the public feeling in each State will be formed and fashioned exactly as the measure shall affect its peculiar interests. If, by the usurped power, any new stimulus will be given to the internal commerce, enterprise or industry of any one State, or number of States, or great local interests are thereby to be promoted, their statesmen and politicians will not be astute to inquire, whether the measure will be in strict conformity with the acknowledged principles on which the compact of the States was founded, or within the clear intent and meaning of the compact itself, but will rather be disposed to overlook all considerations of the kind. The States, on the other hand, whose prosperity will be retarded or impaired by the contemplated measure, will be found in opposition to it.

In the measures of the Congress for many years past, the people in some sections of the Union, indeed the majority of the people of the United States, have perceived a system of policy, which is to give active employment to the capital and industry of their particular States, and to carry them forward to aggrandizement, and to wealth. In another portion of the country, it promises to dry up the sources of their prosperity, and to bring on premature decay. For a discordance in the public sentiment so unhappy, and in a conflict of paramount interests so serious, I know of no peaceable remedy, unless Congress shall magnanimously retrace its steps and consent to carry on the government in future, upon the principles, and in the spirit in which it was so happily formed.

But is this probable? Let us not, my fellow-citizens, indulge in a hope which, however pleasing, must in the end prove fallacious. Let us only look to things as they are. To the North of the Potomac, and to the East and West of the Alleghany, what cause have the people to tremble at, or what possible motive to change, the measures or the policy of the government? What constructive power

can Congress claim to exercise, which can possibly affect these people to their inconvenience or their injury? I can conceive none. In domestic manufactures and in monopolies, they see their local interests cherished and fostered by the protecting and the powerful influences and resources of the whole nation. In internal improvements, they see that obstructions in their rivers are about to be removed, and new means of communication proposed, which are to open to the Middle and the Western States new and most profitable channels of commerce, and the cost of which is to be defrayed from the National Treasury, whilst we in the South, who furnish such means and such a revenue to the government, are to enjoy from that government no other advantage than protection from an external enemy.

The interest of the North and West consists, therefore, in Usurpation, and a departure from the social compact. The interest of the South, in the preservation of that compact. The interest of the North and West, is, that the government should become more and more National. The interest of the South, that it should continue Federal. The North, from principles of expediency and self interest, must for ever support every inordinate exercise of power, on the ground of construction or implication. The South, from considerations of primary interest and of safety, must for ever oppose the implied powers of Congress. But the North and the West constitute the majority of the nation. That majority must increase with every new census, and with the prospect of its being at some future day overwhelming, where shall we look confidently for the hope, that the government is to be arrested in the unconstitutional and arbitrary exercises of its power, when such exercises of power serve to gratify the feelings and promote the interests of that majority. In the claim to do any act, which in the opinion of Congress, can "promote the general welfare," can it be conceived; how, or in what way, the general government can ever come in collision with Northern views and Northern interests. Not, certainly, by a mode of taxation, by which we in the South are to look to no customers than themselves, when we buy or when we sell. Not, certainly, when their rivers are to be opened, and canals cut in every direction through their States, without any expense to themselves. Not, certainly,by the enormous expenditure and circulation of money, which is to arise from the appropriations which are constantly making for some new purposes, unknown to the constitution. Not, certainly, by any interference in their domestic and internal policy, to which there never can be a possible inducement.

But how different is it with the South. We hear of no project in Congress to tax the manufactures of the North, to support the agriculture of the South. We, indeed, are told of internal improvements, but to witness them we must travel Northwardly. We annually throw into the Treasury of the Nation from our Custom House, hundreds and hundreds of thousands of dollars, to be distributed and disbursed for the benefit of all the States. But for this rich remittance we receive nothing in return. All is expended Northwardly. We have no Navy Yard to repair the smaller vessels of the Navy, to which we contribute so much, and when we ask for one it is refused. If a ship's boat is to be built, or a sail repaired, necessity alone would cause it to be done here: all must be done in Northern ports. We know the general government, not by the kindnesses which it practises towards us, but by the taxes and the tribute money that it incessantly demands of us. Whilst we are at peace with all the world, and with no rational prospect, that there ever can be madness enough again in any foreign power to meddle with us, we are told of the preparations and measures "to provide for the common defence." We are reminded by Congress of the facility which ought, in case of war, to exist for the transporting of troops and munitions of war, and that these facilities are best promoted by great National and Military Roads and Canals. If we cast our eyes upon those sections of the United States, where the population is compact and dense, and where invasion is impracticable, we do indeed see United States' Engineers every where at work, and busy in their attempts to take summit levels, even on the Alleghany Mountains, and mighty projects are every where on foot. But, if we turn to the Southern Border, which is the weak and the vulnerable point of attack for a foreign enemy, easiest of access in time of war, with bad roads, and no facilities, but with every difficulty as to the transportation of troops, and artillery, and heavy ordnance: we shall there see no Navy Yards, no Military Roads, no Canals. What has brought about all this? The answer is — Usurpation; and Consolidation. Congress is exercising powers which belong ) not to it, and if the Southern States continue to acquiesce as they ] hitherto have done, in the Tariffs, Internal Improvements, and other schemes of the Northern People to improve their country at our expense, we shall soon find that we shall be for them "hewers of wood and drawer of water," and we may discover that under the phraseology of the term "general welfare" in the Constitution, Congress may be propelled by the public opinion of the North, to regulate our domestic policy. Let the People look to it. This is not fancy — The idea is serious with many and the time perhaps is not very distant. It rests with ourselves only to place it at what distance we "louse. By firmness We Stand — by concession We Pall.

NO. 4.

It is not only on the subject of Tariffs and Internal Improvements that the people in the four great divisions of the United States are divided in sentiment. It is our misfortune that we differ on points ten thousand times ten thousand more important, than all that has been discussed in Congress. We are, and we must be, in perpetual conflict with our Northern friends, on a point of most vital importance to our security and comfort as a society, to our prosperity as a country, and to our existence as a State! To believe that this conflict of feeling can ever cease, is egregiously to deceive ourselves; and to conceal our opinions, when we do not believe it, is to deceive other?. Nature, interest, education, prejudice and feeling, have drawn a strongly marked line of distinction between the North and the South. It may be delightful for us, to talk of our being as one family, the members of which are mutually affectionate and kind. — The patriot may dwell with extacy on the thought, and our orators and poets may make it the constant subject of their themes and of their songs. But the idea exists, only in the imaginations of those who Jove to indulge in the pleasing illusions of fancy. It is not founded in truth. We are an united people it is true — but we are a family united only for external objects; for our common defence, and for the purpose of a common commerce; sharing, in common, the dangers and privations of war, and the glory and renown, with which our arms have been crowned, when wielded in the defence of our liberties and our independence. The wise framers of our Constitution, never designed or contemplated more than this. When they met together in convention, they brought with them opposite sentiments, and they represented a people, whose pursuits, occupations, and interests varied, according to the section of the country in which they lived. They were aware of a substantial distinction as to interest between the States. It was in Convention that Mr. Madison declared, that "the great danger to the general government, was the great Southern and Northern interests of the continent being opposed to each other. Look to the votes in Congress, and most of them stand divided by the geography of the country, not according to the size of the States." As opposite too as were our feelings, yet as regards these, we were then in our Halcyon days. Though our sentiments and our policy were not in accordance with the views of our Northern friends; yet, in that day, there was nothing of that fanatacism, that morbid sense of humanity, or that vituperation and constant vulgar abuse of Southern institutions, which now prevails. — Judging of the future by the past, and one and all believing that the Constitution would bind us together in firmer friendship, and cause us to approximate in kind feeling, rather than to diverge, we consented to the Union upon terms, which time and experience, and the decisions of the Supreme Court of the United States, daily prove to be disadvantageous to us in the extreme.

We have been deceived in all our expectations on this head. The good feeling upon which we then relied, has vanished. Instead of approximating in a friendly and liberal feeling, as we advance in our history, we approximate only for conflict and collision. Year after year, Congress proclaims its omnipotence by some new usurpation; year after year, new presses vomit forth their anathemas against our systems, and their reviews and periodical journals, edited by the first talents of the country, denounce in the most angry terms, our policy. Insurrectionary doctrines are promulgated in a thousand ways, even from the Pulpits of the Ministers of the Gospel of Peace.

Our jealousy of the North has, in consequence, been augmented ten and an hundred fold to what it was; and considering the present state of the world, and the unceasing extravagance and tendency of public opinion, to interfere with the policy which feeds and sustains us, who regrets that there is such a jealousy? What can preserve us but constant jealousy? What but a sensitiveness on the subject of these our rights, so acute, as to burst forth into a general flame of excitement and indignation, the moment these rights are touched by unhallowed hands: what but this can save us from the mighty arm of such a destroyer, as the Congress of the United States must and will be, with no other limitation to its powers than its will, and with no restraint but its discretion? Will confidence in our Northern friends give us peace? Will apathy on our part? Will a tame and a quiet submission to usurpation upon usurpation, give us any claim upon Congress? Will it exempt us from further tribute money? Or will it lessen the' perpetual disposition which exists to interfere with our peculiar policy, as evidenced by such constant expression of the public sentiment of the North, in and out of their State Legislatures? No, my fellow-citizens, no! It is the apathy and indifference of our citizens, on the subject of the encroachments of Congress on the rights of the States, which has invited the aggressions already made upon our rights of property, and it is apathy on our part, which will strengthen the unceasing efforts of the Northern folks to tax us still more, and in due course of time to extirpate from the body politic, what is regarded by them as a crying evil and as a canker. It is apathy that will tempt them more and more to trample to the dust the Federal Constitution, and with it the hopes and the safety of the South. It is our apathy heretofore which has fed and nourished the avarice and false philanthropy and fanatacism of the North. Apathy, in a word, must ultimately lead to events, that will dissolve the Union: but firmness and constant jealousy in the South will preserve it.

1 am not insensible that these sentiments, and this train of feeling, may hot be approved by all. It may well suit such passengers on board, as have no interest in the cargo, and whose hopes and fears are not identified with the perilous ship, to rely upon their own activity, and their ability at any time to seize upon the boats, and secure their safety. It may suit such as these, not to be alarmed at the present aspect of affairs, and to denounce as alarmists, those who would warn their fellow-men of their danger. But to many of us, whose property and whose helpless families are all embarked, and who have no means of escape, and no hopes of safety, but in the prudence and skill of the pilot, it is natural that we should contemplate and awfully watch the coming and the howling of the tempest. It is the misfortune of South-Carolina,that there are too many amongst us already, who do not feel on this subject, as the crisis demands — too many politicians who feel it their policy and their interest, to frown down any thing in the nature of sectional feeling, as if our existence as a State, does not depend upon sectional feeling alone, and that of the most ardent kind.

I am not one of those desponding mortals who think, that the system of the South must ultimately, and as a matter of course, give way to the daring attacks in preparation against them; and I envy not those, who by instilling in conversation such sentiments into the common mind, would unnerve the public arm. I fear nothing from without — the enemy is amongst ourselves, and let us only discover and remove from our confidence the promulgators of such opinions, and I think I know enough of my fellow-citizens to believe, that when the time shall come, to test their devotion to their common safety and their dearest interests, our neighbours, the people of the .North, will discover, that we are not like dependent West India Colonists, with no arm to lean upon, but that of an unnatural parent — but, that we are amply furnished with the means of protecting ourselves, and of perpetuating our policy under any emergency, and without needing any assistance from them.

NO. 5.

We have seen, that the people of the North and the South are influenced by interests and feelings as opposite in their character as the two poles are asunder, and the motives which would incline the former to support the general government in all its advances to usurped power by means of construction or implication, must compel the latter as a matter of necessity and self-existence, to resist it. The idea of resistance of any one State, or number of States, to the acts and the measures of the government, is a measure that can never be contemplated but with pain. It is so contrary to the spirit in which the Constitution was formed, and to the expectations of the patriots who founded our Republic; so repugnant to the feelings of every lover of his country, and of every friend to the civil liberties of mankind, which seem to hang upon the destinies of these States, that there are few of us, who would not be willing to exhaust to the dregs, the cup of remonstrance and conciliation, rather than put at hazard the peace of the Union, if by reasonable concession we could preserve it.

The union of the States is the prosperity and safety of the States. It is in Union, that our agriculture flourishes, and our commerce enlivens and whitens every sea — it is by Union, that we take our high rank among the nations of the earth. In Union has our army, in the two Punic wars, gathered its harvest of laurels! and in Union has our star spangled banner waved our fame into every land, and our brave tars wrested the trident from the proud Mistress of the Seas. In Union is the bright, and the glorious hope of perpetuating those principles which have been, and will continue to be a light to lighten mankind to their rights and to their liberties. But Union, with all its blessings; with the protection it gives to agriculture; with the riches that it brings to our commerce; with the defence it provides for our country; and with the deeds that it records, and the achievements it emblazons on the proud tablet of our history — these, and all these, cannot be dearer to us, than those great and fundamental principles of American liberty, for which our fathers toiled and bled. The usurpations and tyranny of Great Britain were not resisted, that the Colonies might be United; but that the Colonies might be Free. A common danger inspired the illustrious Patriots of the Revolution, with a common and a corresponding feeling, and when before the Supreme Judge of the world they resolved to dissolve the political connection with the mother country, they solemnly declared, that they were of right, and ought to be free and independent States. The Confederation recognized each State as "retaining its sovereignty, freedom and independence;" and in entering into the present Federal Union, great as are the powers delegated to the Federal Government, yet the sovereignty and independence of the States is still preserved. It has been well remarked, that the present Union "is distinguished from the Confederation, not so much the increase of powers conferred on it, as by the invigoration of those before possessed." With the exception, indeed, of the new power to regulate commerce, there is no material new power conferred by the people on their rulers.

The Confederation, it must be remembered, had been formed in a time of war, and for a state of war and danger. No fixed principles of Union had been agreed on till nearly two years after the Declaration of Independence. The defence of the States against the common enemy at that time, was the sole motive to the Union of the States. With the old Congress, the States were therefore willing to entrust the sword, but the purse was substantially withheld. It had no revenue, and it had no power to collect one. It had been proposed that the Congress should be invested with the power to lay an impost of 5 per cent, on foreign merchandize, and this failing, it was content to ask for a grant of this power for a limited period, and this also failed. It was not until the war was ended, and the great object of the Confederation attained, to-wit, the independence of the States, that its inadequacy to the proper government of the country in a time of profound peace, became evident. How could it be otherwise! There was no system of general revenue which the Congress could succeed in putting into successful operation. The public debt was to be paid, but the States could not agree as to the best mode of apportioning their debt. There were. importing States, and there were consuming States. There were jarring interests, which in various ways impeded the operations of the government, and the consequences were, the violation of the public faith, and the consequent depreciation of the public debt.

But among all the causes which in those days embarrassed the United States, there were none which brought upon the country such a deluge of evils, as the obstructions which commerce received. To commerce, every State looked, as the source of its future and its permanent prosperity. But there was no common head to regulate commerce. Each State having exclusively the right to regulate its trade, there was of course no uniformity of action as regarded foreign nations. When foreign governments laid heavy restrictions on our trade, there was no general power to counteract the effects of these restrictions, by retaliatory laws, so as to meet the views and interests of all the States; and when to this was added the evil of the consuming States, being obliged to submit to the exactions and heavy imposts laid on foreign goods by the importing States, the. distress became general. Hence, a general anxiety and desire for a government, which should regulate and protect the general commerce of the country in a state of peace, as well as to defend it in a time of war.

Thus arose the present Union of the States. The sole motive to this Union was first COMMERCE, and secondly, the COMMON DEFENCE. The Constitution of the U. States never would have existed had it not been that the States sorely felt the evil of not having ahead to regulate commerce. The old Confederation had been rapidly passing away by the disregard of many of the States to its recommendations. It was the common and the severe pressure of an obstructed, ill-managed, foreign trade upon the States, which was about to involve the whole' country in accumulated distress and ruin, which formed the great inducement for a firmer and better Union; and it is not hazarding too' much to say, that had it not been for this pressure alone, the present Federal Government would never have been called into existence. It was called into existence to regulate commerce. This is no speculation — it is history. Alt who lived in those days know it; and, let the compact itself be looked into; let it be analyzed with care; let the proceedings of the Convention be referred to, and it will be seen that the Constitution of the United States is a government of specified or enumerated powers, expressly provided not for internal, but for external objects, viz: — the purposes of defence and commerce. Any construction, therefore, which would extend the powers of the government to the encouragement of domestic manufactures, and the construction of national roads and canals, is to extend its sovereignty to objects which are not within the proper sphere of its action, and therefore illegitimate, and all the acts of the government in the exercise of these powers, is Usurpation — and must be put down by the Southern States, if, as will hereafter be seen, it is not their determination to be put down themselves.

NO. 6.

It cannot be too strongly impressed on the minds of our citizens, that the Government of the United States is a Government instituted for external, and riot internal objects. This is the language of the Federalist, which is the best commentary on the Constitution, and as such, its authority is acknowledged in our courts. "The powers (says the Federalist) delegated by the Constitution to the General' Government, are FEW and defined. Those which remain to the State Governments are numerous and undefined. The former will be exercised on External objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will, for the most part, be connected. The powers reserved to the States, extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the INTERNAL order, IMPROVEMENT, and prosperity of the State.''

Thus we see, how exactly this exposition of the Constitution, coincides with the history of the times, in which it was framed, as noticed in my last number. The sole motive ts the present Union of the States, aa I there stated, was defence and commerce. On "war, peace, negotiation, and commerce, (says Mr. Hamilton,) the few and the defined powers of the government are to operate." But do they, my fellow-citizens, operate on these subjects, and these alone? Let us look at the government as it has been administered since Mr. Monroe's accession to the Presidency, and ask ourselves, if Congress has not been in the exercise of some of the most important of the numerous and undefined powers, which, according to this commentary, are reserved to the States? Has it not extended its power to the "internal order, improvement, and prosperity of the States? What are its roads and canals, but measures of internal improvement and prosperity of particular States? Are they called at Washington by any other names than "measures of internal improvement?" What are its tariffs? Are they measures of general interest to all the States; or are they schemes for employing capital to revive the languishing industry of particular States, and thus promoting the "internal prosperity of those States? And what will be the appropriations out of the National Treasury for the Colonization Society, when they shall be made, of which there can be no doubt? Will these appropriations be referred to the objects of "war, peace, negotiation, and commerce?" Or do they naturally belong to the objects which concern the "internal order" and government of the black population of the United States, and the LIVES, liberties and properties" of the WHITE people of the Southern States?

To all such questions there is an easy answer. The above picture given us of the Constitution of the United States, as it was in 1787, when it was presented to, and accepted by the States, is precisely the reverse of that, which is now held up to us as the rule and guide for our conduct. It is for Congress that are now reserved, those "numerous and undefined powers which concern the lives, liberties, properties, and internal order, improvement, and prosperity of the States;" and to the sovereign individual States, belong the few and the defined powers of legislating on all subjects of ordinary interest, as long as such legislation shall not clash or interfere with any act or measure which Congress shall, at its discretion, deem as a means most immediately, or- most remotely, connected with the regulation of commerce, or the promotion of the general welfare of the United States.

And is this state of things to continue? Are the great and vital interests of sovereign States to be in danger of being swept from their foundations by the furious tempests of construction and implication, without one single effort to save them? Let us hope not? — Let us believe that when our citizens shall see the subject in its true light, and shall test the meaning of the Constitution, by the plain, rules of common sense, and call to their aid all the circumstances which are connected with the rise, progress and perfection of the federal Constitution, they will see at a glance, that the government of the Union, is a government for defence and commerce, and that it has no power to promote this or that particular interest, or regulate this or that branch of domestic industry, or to legislate on any subject whatever, in which every State has not an immediate and a direct interest. It is a government instituted expressly to do that, to which each State is separately incompetent, to wit, the regulation of trade with foreign nations and between themselves, for their mutual benefit, and to the defence of all the States against a common enemy. This being the legitimate end of the government, any act passed by Congress, which is not naturally connected with the defence of the country, or the regulation of its trade, beneficially for every part of the Union, is (with one or two trifling exceptions, provided for by the Constitution) an usurped power. But Congress is not at liberty, arbitrarily to assume, as a pretext for exercising any particular power, that it is a means adapted to the proposed end of the government. If the connection between the means and the end, be not a real and a natural connection, it is still an usurpation. It is conceded on all hands, in and out of Congress, that the Federal Government is a; government of limited powers, and that "every sovereign power not delegated, is retained by the States or the people." It results then, that before Congress tan exercise any great substantive powers, it must place its finger upon that clause of the act of enumerated powers, which clearly confers the grant of power contended for, or it must shew, that the particular power claimed as incidental, is a mean so necessarily and so properly adapted to the end, for which the sovereign power was given, that without its exercise, the grant itself would be nugatory and void. If it cannot do the one, or the other, it usurps the power

I am sensible that this is not the doctrine of the Supreme Court of the United States. But I hope, in its proper place, to support this opinion, and to shew that it is the doctrine bf plain sense; and moreover, that this was the sense of those who framed the Constitution, and of those who accepted it from the hands of the Convention. If I can satisfy my fellow citizens, as to the true and unequivocal intent of that instrument in 1787. my purpose will be answered, for the meaning of the people of these States, as collected from the proceedings of the Convention, must, and will prevail, over the sophistry and ingenuity of the Bar, or the metaphysical learning of the Bench, and particularly when vital interests are at stake.

Where can Congress look for the power to construct national roads and canals, and to impose upon the Agriculturists of the South perpetual tribute and extortion. If we look to the enumeration of power, as set forth in the Constitution, we look in vain for powers of such magnitude. The power to tax indefinitely being first given, there is not one of the seventeen enumerated powers, with the-exception of that which gives Congress jurisdiction over the District of Columbia, and that of the power to give patents and copy rights, which does not relate either to commerce or defence; thus confirming my position, that it is a government fat External objects alone. Looking at this list of specified powers, it is preposterous to say, that in any other wants, than the necessity of a Federal head to regulate our commerce, and a Federal arm to defend us in time of war, did the present government originate. It is absurd to say, that the people ever did want, or ever can want a general government for any other purposes. These are the only wants common to all the people of the United States: In Commerce, we are all equally interested, and we all stand in need of defence. But on every other subject, be that subject what it may, the wants, the feelings, and the interests of the people of the United States are substantially opposite and dissimilar, and to the end of time, in all probability, they will remain so. To have entrusted Congress, therefore, with a power to legislate at its discretion, upon any subject, which it might conceive would promote the general welfare, excepting in the modes specified, would have been to confer on it a most tremendous power of legislation — such a legislation as never could be a safe or a just one in their hands. The Sages who penned the Constitution, were aware of this. They no doubt contemplated, that the legislation which might promote the interests of one section of the country, might operate to the injury of other States. They probably were aware, that the time would come, when the surplus capital of the Northern and Middle States might be profitably employed in Manufactures, and that if there was not a limitation to the power of Congress, the people of those States, who would, in time, constitute a great majority, would promote their local interests at the expense and the ruin of the Southern States, the people of which had no interest but that of Agriculture and Commerce. To guard therefore against any species of legislation, in which all the people had not an undivided interest, was their care; and it is impossible to look at their work, (the Constitution of the United States,) without being struck with the circumspection, with which power is dispensed from the States, and from the people, to their rulers, and without perceiving with what a free and liberal spirit, they dispense every power necessary to defence and commerce, and withholding, at the same time, every thing else. And yet this government, whose limits of power are so plainly marked, and so precisely defined, that he who runs may read them, is now in the exercise of some of the greatest powers that belong to a Sovereign unrestricted in his views, and unlimited in his will.

What power, I ask, can be more substantive, primary, or paramount, than the power to construct national roads and canals. If to cut up the country in every direction, by works of this nature, is not to claim sovereign dominion in the States, I know not what is meant by dominion; Can a power which involves jurisdiction over the territory and soil of our citizens, be claimed as incidental to, or as derivative from enumerated powers, none of which are greater than the power in question? What power again, indicates more complete sovereignty, than that, by which, at the will of the Sovereign, the paramount interests of one part of an Empire, can be prostrated, in order that extensive immunities and monopolies should be conferred on particular classes? Can it be possible, that the same body of men, who seriously and soberly thought, that a specific grant of power was necessary to enable Congress to exercise jurisdiction over its forts, magazines and dock yards, could intend to give them the unlimited jurisdiction which the opening of roads and digging canals naturally confers on those who have the power to construct them? Can it be true, that the same body of men, who believed, that Congress could not "promote the progress of science and the useful arts" by a patent or a copy right, unless there was an express grant for that purpose ever contemplate ed, that they should promote the progress of manufactures, which rank foremost amongst the "useful arts?" Did these men ever dream of Congress having its committees on the useful arts, its committees on agriculture, and on manufactures, or that it would contemplate a colony on the

coast of Africa? No, my fellow citizens: No more did they contemplate it, than that Congress should establish a national university, or a national observatory, or have its academy of fine arts, or its gallery of paintings, or its own national museum. These subjects were before the convention, but so far from the power being given, it was refused. All the late measures of Congress, therefore, whether in the shape of appropriations for roads and canals, or in the still more odious shape of tariffs, are neither more nor less than so many schemes devised by the people of the North , for improving, enriching, and aggrandizing their own states out of the general treasury, or for giving employment to their own people at our cost and charges. They are the devices resorted to by the majority, to live by the labour and industry of the minority. They are the acts of those, whose interest it is to extend the government beyond the limits for which it was Created, regardless of all consequences to their Southern brethren. A government which, in the days of its purity, never has been as protecting and as paternal to us in the South, as we had a right to expect, considering the contributions it levied upon us, but which, in these later times assumes an undisguised hostility to our dearest interests. The General Government imparts to us none of that genial warmth, which brings into life and vigour, the industry and enterprise of the merchants and agriculturists of a country; but it is about to dry up, by the scorching fires of construction, all those sources of our prosperity, which, under any other system, would make us a flourishing, a great, and a happy State. Our trade is diminished, real property is depreciated; our mechanics are without employment — many of them emigrate to the North. Confidence is lost, and despondency and gloom universally prevail. With resources that few countries can boast of, we are, nevertheless, becoming to the North, what Ireland is to England. Capital is removed from us; our incomes are spent abroad, and our great export trade in cotton, and rice, the only hope of our planters, the bread that is to sustain us all, even this trade, so important to us, to protect which was the very end of the Union, is now first to be interrupted, and next to be annihilated, that the Websters and the Everetts, the Tythe men, the worse than Tythe men, the Tariff men of the North, may riot and fatten upon our substance. What is the cause of all this? It is Consolidation — it is Usurpation. The enemies of the confederacy and of the republic, are in the chair of state. They are in the chambers of the senate and of the representatives, and will continue there. They possess the entire capitol.

NO. 7.

The subject of the constructive powers of Congress, is one of intense; and increasing interest to the people of the Southern States. It comprehends, in its consequences, not merely the welfare of all, but the safety and existence of many of the States. To South-Carolina, and to the other great cotton growing States, it is peculiarly interesting, and speaks its own importance. If it has not hitherto occupied our serious attention, it is full time, that every citizen should bestow on it, that share of his thoughts to which it is so justly entitled. Our planters especially, may be assured, that they cannot be better or more profitably employed, than in contemplating the measures of the General Government, in all their bearings and tendencies, to the interests of Southern agriculture, and to seek for all the lights, which can conduct them to a proper estimate of the effects of these measures upon the entire policy of the State. Fortunately, the subject is not without its lights. It has been discussed with ability, in and out of the halls of Congress, and I do not know that I can refer my readers to a better defence of the rights of the States, than to the celebrated report of Mr. Madison, to the Virginia Legislature, in 1799, and to that of Mr. Giles, to the same body, in. 1827. If the reasonings contained in these reports, be not sufficient to satisfy them, that Congress is in the exercise of usurped powers of a most dangerous character to us, I can have but little hope, that the views which, I may, from time to time, add to what are there so luminously given, can effect any change or conviction in their minds.

By the debates in Congress at different periods, and other discussions elsewhere, it would seem that the advocates of tariffs and internal improvements, have not been generally agreed, as to what clause or part of the constitution it is. that they derive the authority of Congress to adopt these measures. Whilst some few would contend, that under the first enumerated power, to "raise taxes, to provide for the common defence, and the general welfare," &c. an authority is given to provide for the general welfare, as well as to raise taxes, and that Congress can accordingly, adopt any measure of general interest, to which there is no express prohibition in the Constitution; by far the greater portion of persons more cautiously maintain, that it can only provide for the general welfare, under this clause, as far as an application of money can promote such an object, and no farther. A third, and a numerous class of persons again contend, that it is under the power "to regulate commerce with foreign nations and between the States,'1 that Congress can construct roads, and make canals for facilitating commerce, and can encourage domestic manufactures by protecting and prohibitory duties.

The first of these opinions is so absurd, as scarcely to need a refutation. The second was asserted by Alexander Hamilton, in his celebrated report on manufactures, in 1791. The same doctrine was advanced by many Southern members in Congress in 1824, and even by some of our own statesmen, but they have lived, I hope, to see the error of opinions most honestly formed at the time, and without the most distant expectation that they would be productive of the abuses which have followed their promulgation.

The third or last opinion, was, at the same time, urged by Mr. Clay, and also by Mr M'lane; who, as far as the power to make canals was claimed, agreed with Mr. Clay on this ground.

But we cannot turn to the masterly productions of Madison and Giles, without being forcibly struck with the facility with which men, wielding the weapons of constitutional rights and state sovereignty, can put down their antagonists, who can scarcely agree amongst themselves, as to the particular clause in the Constitution, which gives a power, which, in its operations, is about to destroy the Southern States.

It is in the celebrated report of 1799 that the Committee demonstrate, that any other construction would be to convert the States into a consolidated government, the inevitable tendency of which consolidation, would be to transform the republican system of the United States, into a Monarchy. And. it is true. Who can doubt for a moment, that when the General Government shall go on, step by step, in its exercise of that greatest of

all powers — the power to raise money for any, and every purpose,which it shall pronounce to be for the common defence or the general welfare, it will not extend the sphere of its legislation, to almost every object of civil government — to all the numerous and undefined objects, in fact, which were reserved for the States to act upon — thus making the individual States, as petty corporations, and conservators of the peace in their respective communities, and repairers of parish roads and bridges P Who can say, that with the patronage such a government must constantly acquire, by its capacity, hereafter, to give an hundred offices where it now gives one — with its army and its navy officers and contractors — with its custom houses and their collectors, clerks, and dependents — their tax collectors — their excisemen — their judges and clerks, and marshals — their commissioners of bankruptcy — their contemplated colony on the coast of Africa, with their colonial governors, judges, and retinue of servants and dependents — their brigade of civil and military engineers and surveyors — their post offices, and their thousands of contractors — their land offices — their seminaries of literature — their national institutes, and their universities — their academies of the arts, and their galleries of paintings — their national museum,and Mr. Adams' light houses in the skies, their national observatories — their military and naval schools — their hundreds of professors — their astronomers royal, and their expeditions to the poles — their missions to Panama — their public institutions, rewards and immunities for manufactures — their pecuniary bounties — their premiums — their splendid honors, and allurements held out as bribes to the first talents of the country — and last though not least, their command of the American Press, that shall cry out sedition and treason, and disunion, and come down as with a giant's blow upon the patriot, that shall dare to maintain the cause of the sovereignty of the States, of the republic, and of the world. Who can say, that with these, and a thousand such means of patronage, that the Government shall not attain a moral power, aye, and that soon, and put out such roots as to enable it to withstand all efforts to keep it within its bounds. This is no exaggerated picture. The limits prescribed to the legislation of Congress are passed. A boundless field lies open before it. The government feels itself without restraint or limitation. It has dared, even in our day, to talk of putting down a State, by the bayonets of its Soldiers.

But we are told by the Tariff men, that under every Administration, Congress has acted upon that construction of the Constitution, which is the basis of those measures, that now divide public opinion in these States. We will examine this —

The first exercise of any important power by implication, was in the case of the Bank in 1791, as I have already stated in a former number. But this power was not pretended to be derived from that clause in the Constitution, which enables Congress to appropriate money for the general welfare. It was claimed merely as incidental to some enumerated powers, and particularly as a means of collecting and distributing the revenue, and borrowing money for the purposes of war and defence: and the opponents of the Bill resisted it, on the ground, that though a convenient, it was not a necessary means, and therefore, not within the letter or spirit of the Constitution. The whole ground of dispute was as to incidental powers. It was Alexander Hamilton, as I have already stated, who first advanced the doctrine, that as far as an appropriation of money could promote it, Congress could provide for the general welfare, in any way it pleased. Upon the belief that Congress possessed the power to encourage Manufactures, did he recommend, what our Tariff men now advocate, to wit — protecting and prohibitory duties. This was in 1791. His report, however, was never acted upon in any way by Congress. Certainly no vote was taken, and no opinion ever was expressed on the subject of this report; and it does seem strange, that though the Federal Administration continued until 1800, not a word was ever more said by Mr Hamilton, or his friends. — His report, and his manufacturing doctrines and opinions went to sleep, and remained asleep, until they were roused from their slumbers by the Tariff men, during Mr. Monroe's Administration. As I have already stated in a previous number, there were some other occasional abuses of power under previous Administrations, but they are not worth noticing. — They probably passed sub silentio: — As no vital interest of the States was affected, there probably was little or no opposition to them.

It is clear, then, that with the exceptions mentioned, the Government of the United States did not, within the first thirty years of its existence, make any inroads on the Constitution, and certainly during the same period, no such advances to usurpation, as seriously to affect the paramount interests of particular States. It was reserved for Mr. Monroe to commence that system of policy, which the present Administration is now pressing upon the Southern States; and which, if persevered in, will convulse this Union to its very centre. It was during Mr. Monroe's Administration, that a bold, a decided, and a systematic plan of constructive and usurped powers, was determined on by Congress.

It was then, that we went back to the ultra principles of Alexander Hamilton, which had slept in their graves for a third of a century, and proclaimed such a devastating and such an' overwhelming doctrine, as that of "the general welfare." Did the Southern advocates of this system reflect, that their doctrines would serve as a foundation, on which Congress would build, in after periods, scheme upon scheme, for enlarging its legislation, increasing its occupation, and for converting sovereign States into petty municipalities? Did they reflect, that in less than five years from the time that we were furnished with this exposition of the general phrases in the Constitution, that even the American Colonization Society, a disorganizing body in the midst of the States, "a nucleus around which, are daily forming all the worst elements of discord'' — did they reflect, that this Society too, would demand the aid of the National Treasury, to enable it the better to disturb the peace of the Southern States? And yet such are amongst the beginnings, from this sweeping doctrine of the general welfare. This Abolition Society has already petitioned Congress, and is to petition again to be supported from the Treasury, and their President, Judge Washington, of the Supreme Court of the United States, is busy with his printed circulars, calling upon the people of the States, to send memorials to Congress, to promote what he terms, a national interest." And is it to come to this? Was it for purposes like these, that South-Carolina entered into the Union, and gave up such an active portion of her sovereignty? Must her Representatives stand by, and see Committees from Abolition and Negro Societies, crowding the lobbies of the House, soliciting, and provoking the discussion of subjects, which, to us, in these States, will be productive of evils, which language is inadequate to describe? It would be better, my fellow-citizens, that a foreign army should invade your territory, and take you unprepared, than that you should permit the Congress of the U. States, to touch or disturb this subject, without regarding them at once, as "Enemies in War, and ENEMIES IN PEACE."

NO. 8.

I now propose to give some popular views, on the question of the constructive powers of Congress, which, in my humble judgment, are not without weight. I am aware, that they are opposed to the opinions of men of no ordinary minds, and that they are even repugnant to the doctrines of the highest tribunal in our land — the Supreme Court of the United States. This circumstance, however, does not discourage me. I reverence as much as any man, the decisions in general of this Court, and as far as these decisions determine questions of ordinary interest between one State and another, or between a State and the United States, I yield to them my perfect homage. The Supreme Court may give to Congress the power to have a National Bank. It may decide that the insolvent laws of this or that State, interfere with the general power of Congress on the subject of Bankruptcies; or it may deny to a State, the power of giving to its own citizens, the exclusive right to the navigation of its own rivers by Steam Boats Were I to differ with such a Court, on these and other subjects yet as a good and virtuous citizen, I would be governed by their opinions. By so doing, I yield none of my privileges as a freeman. No vital principle of individual liberty is involved in the decision — no right of State sovereignty taken away, and no important State interests impaired or destroyed. But far different will be my feelings, when the question becomes one of disputed sovereignty; and the contest involves the great interests, and the existence of States. I should then feel myself at liberty, to canvass the opinions of these Judges, as freely, as if they had been delivered elsewhere, and by other men. I have the less reluctance too, when I consider that it is natural, that on questions of disputed powers of sovereignty between the United States and an individual State, the Federal Judges should lean towards, and support the authority of the General Government. It is the General Government that appoints and maintains them, and to that Government they must look for their promotion and their honors. To expect that such a tribunal will not extend the powers of the Government, where they can do it, without a flagrant violation of some express provision in the Constitution to the contrary, is to betray an ignorance of human nature and of what has been passing in our own country for the last ten years. To the Supreme Court of the United States, it is, that we are to look as the source, whence the extensive implied powers of the Government have flowed, and will continue to flow. It is the Chief Justice of that Court who is the Master Architect of the extended Government of the United States. It is he who has already built up, and is constantly building up, a superb national Government over the heads of our citizens. In the memorable words of Mr. Jefferson, "the JUDICIARY BRANCH is the instrument, which, working like Gravity, without intermission, is to press us at last, into one CONSOLIDATED mass." This was not an opinion pronounced in a period of embittered political feelings, but they are the sentiments of the Sage of Monticello, pronounced in his retirement from busy life, and when every thing that came from him, might be considered "in its nature, as testamentary."

The decision of the Supreme Court in the case of the Bank, would have been unimportant to us, were it not, that the principles upon which that decision is founded, must encourage the government to believe, that it can do any act it pleases, which it is not expressly forbidden by the Constitution to do. The field of constructive power opened to Congress, is no longer susceptible of definition. The talent too, the incomparable talent, displayed in this decision, a decision, which I acknowledge for strength and acuteness of intellect, and force of argument, will for ever remain a master piece of judicial composition; the talent I repeat here displayed, is calculated to force from us, at first, the confession, that Congress could establish a corporation. But the decision, I maintain, is not in consonance with the views of those men who framed the Constitution. Sound as is the reasoning of the Chief Justice, in the abstract, it is nevertheless clear, and there are abundant evidences from which we can be assured, that no such construction could have been anticipated when the Constitution was formed If I can shew this, my purpose will be answered.

When States differ as to the true intent of a league »r compact, involving a deep question of important sovereignty, they are not to seek for the aid of black letter lawyers, who merely look at the instrument as they would at a deed, but they must go into all the motives to the compact, and collect from the particulars of the negociation, what the objects and views of the contracting parties were. It is from the history of the proceedings of the Convention which formed the Constitution, that we are to expound the meaning of particular clauses. Fortunately for us, such sources of safe interpretation are within our reach. These, and these alone, are to be resorted to. Should the parties, with all these advantages, still unfortunately differ, I know of no tribunal that can decide between them. When the States agreed to that article in the Constitution, which provides that the Supreme Court should take cognizance "of all controversies to which the United States is a party," it cannot be conceived, that more was intended, than to provide a tribunal to decide cases of ordinary interest, or cases of disputed territory, which all the parties might be disposed to leave to such a Court. It cannot be believed, that any State would submit a question of vital sovereignty or interest, to any arbiter oh earth. No sovereign has a right so to do, without violating his obligations and his duties, to his own subjects. Inherent rights upon which the safety and existence of the people depend, are not to be put at hazard in this way. They must be adhered to under all circumstances.

If any other doctrine than this were admitted in South-Carolina, what might not be the consequences. Congress, some fifteen or twenty years hence, may, for aught we know, think proper to decide that the gradual emancipation of the slaves in the United States ought to take place, as essential to "the general welfare" and the public safety, and they may begin to pass laws on the subject. Is there any son of the South, who would be willing to submit to any judges, much less the judges of the United States, whether such a law was constitutional or not, and to stand pledged to abide by their judgment? It would be madness. The decision of a bench of judges might be by the casting vote of a single judge. What! a single judge to decide, whether the fundamental policy of our State, immemorially established, shall be altered or subverted? Shall the voice of one man — poor, imperfect, mortal man, decide the momentous question, whether we, the people of South-Carolina, shall remain undisturbed in our domestic quiet, according to the usages of our fathers, or be harassed to the end of time, by the interferences of the National Legislature — a Legislature, in its feelings, as decidedly foreign to us, in a matter of this kind, as is the Parliament of England? "But some may say, this is an extreme case. I reply it is not an extreme — it is a probable case. The firebrand resolutions of Rufus King, which he laid on the table of the Senate, some few years since, are but pioneers to other propositions which will be made, if no resistance is anticipated. But if the case be possible, my end is answered. There may be a case then, in which the sword alone shall be the only argument.

But let us take the instance of the Tariff. Our citizens generally believe, that the system of the "American policy," as it is termed, by destroying our foreign trade, and prostrating our agricultural interests, will bring ruin upon our country, if it is persevered in. Who is there then that would leave it to any judge to decide, whether Congress can impose such a system of tribute upon our citizens? Let the question of the Tariff come when it will before the Supreme Court of the United States, it must be decided against us .' The question for that Court will not be whether Congress can "promote the growth of domestic manufactures," but whether the National Legislature can pass a law, which, however, obviously designed for other purposes, yet purports in its name, provisions and language, to be merely a means of raising a revenue. The Tariff Bill is in its form and colour, a revenue bill. In substance, it is a bill for rendering the South tributary to the North. The Supreme Court will not, and cannot with propriety, inquire into the motives of those who passed the bill, and therefore will and must decide, that it is competent for Congress, to pass a law "imposing additional duties upon woollen goods." But to us it is really immaterial, in what shape such a question may come before the United States' Courts. Let the odious measure throw off the garments in which it is disguised, and appear in its true and proper character. Let the question come fairly and openly before the federal judges, whether Congress can promote domestic manufactures, and the probability, the certainty is, that it will be decided against us. The Supreme Court, if it remains true to the principles it has already promulgated on the Bank question, must support the authority of the National Legislature in this particular. Those principles, we shall see, are not in consonance with the views of those who framed the Constitution, or,of the States who accepted it from the hands of the Convention, and therefore ought never to be recognized by a South-Carolina Legislature.

NO. 9.

The great basis upon which the Supreme Court places the authority of the Federal Government, to exercise its constructive powers to the utter destruction of State rights, is, that every power vested in the United States Government by the people, is, in its nature, sovereign, and involves a power to employ "all the means which are appropriate, and which are plainly applicable to the attainment of the end of such power, and which is not prohibited by the Constitution; and if a certain means to carry into effect any of the powers of the government be appropriate, the degree of its necessity is a question of legislative discretion, and not of judicial inquiry." Let us examine this proposition. It is a proposition, I confess, which at first rapidly sweeps away the mind to a conviction of its undeniable soundness. But, formidable as it appears in the abstract, it will nevertheless be found to fall before the irresistible power of truth and of common sense, when subjected to the severe test of the plain letter and spirit of the American Constitution. The proposition, if it means any thing, goes the length (from the reasonings of the Court) to establish the principle, that if there be Any relation whatever, between the measure and the end, the discretion of the Legislature is to be the supreme law, and the Court will not interpose its authority, and thus tread upon legislative ground.

This construction of the instrument, I conceive, is wholly repugnant to the views of the sages who framed the Constitution. That these men never designed that Congress should be left at liberty to range at large into the boundless fields of implied powers, is evident from several considerations, which I shall notice in this, and some succeeding numbers.

In the first place, they judiciously restricted the National Legislature to the enacting of such laws as were necessary and proper, for the execution of the delegated powers. The words necessary and proper, in the Constitution, have a peculiar force. Ingenious men may amuse us with their nice and their subtle distinctions — Philologists may puzzle us with their varied criticisms — but there is no need of skilful critics or refined reasoning, in a matter of this kind. The words necessary and proper, are in constant use among men. They have a plain and obvious import, and a popular signification. They are no sooner pronounced, than they strike us like a sensation, and that sensation instantly excludes from the mind, the idea of an unlimited choice of means. The means to be adopted by Congress, must not be simply appropriate, or fit, or adapted to the end, but they must be necessary, as well as proper. The words are not necessary or proper, but necessary and proper Had it been the intention of the Convention to have given Congress unlimited discretion to have selected from the vast mass of incidental powers, any and whatever means it might decide to be proper, such an intention to confer a choice, might have been better expressed, and would have been expressed in other words. — They would have said,and "to use and exercise all other powers incidental to the foregoing powers." But the clause as it stands, is clearly a limitation on the implied powers of Congress. The Chief Justice, however, thinks not. He decides, that the clause is sufficiently explicit, and gives the National Legislature the most ample powers to accomplish the ends of the government, by any means which have a relation to the objects entrusted to its management. In fact, he is of opinion, that this power, "to make all laws, which shall be necessary and proper, to carry into execution" their other powers, was designed to enlarge, and not to abridge, the discretion of the Legislature. His reasons are,

First — That it is placed amongst the powers, and not the limitations of the powers of Congress: and, secondly — That its terms purport to enlarge, not to diminish the powers of the Government. "No reason," adds he, "has been, or can be assigned, for thus concealing an intention to narrow the discretion of the Legislature, under words which purport to enlarge." These are the words of the decision of the Supreme Court of the United States.

Now, let us see, how far this opinion is supported by the proceedings of the Convention. The journal of these proceedings, it is well known, has been published under the authority of Congress, since this opinion of the Supreme Court was delivered, and published no doubt, with the intention of shewing, the “rise, progress, and present condition of the Constitution of the United States." We can, therefore, resort to no higher source, nor to a more indubitable authority, for expounding ambiguous passages in the Constitution, if there be any, than this journal.

What then is the history of the clause in question? The first notice we have of it, is, in "a proposed draft of a Federal Government," submitted to the Convention, as soon as it was ready to proceed to business, by Mr. Charles Pinckney, on the 29th May.* The clause, as it stands, at the end of the enumerated powers, in Mr. Pinckney's draft, reads thus: — "And to make All Laws for carrying the foregoing powers into execution."

The committee of detail, to whom this draft was referred, together with Mr. Randolph's plan or resolutions, (after those resolutions had been the subject of daily debate for about two months, in committee of the whole and in convention) on reporting "a draft of a Constitution," agreeably to the resolutions as amended, on the 6th of August,† altered this clause so as to read — "And to make all laws, that shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this Constitution, in the Government of the United States, or in any department, or officer thereof." Now, if the addition of the words, "necessary and proper," to Mr. Pinckney's clause, did not abridge the discretion of Congress, there certainly is no meaning in the English language, or in the acts of the Convention. Mr. Pinckney's proposition was as unqualified as words could make it. It was a power to make all laws whatever. The amendment of the committee, is to make "all laws that shall be necessary and proper." Does not every man, who is blessed by his Creator, with plain good sense, perceive at a glance, that the words "necessary and proper," here introduced, control the general sentence; that they are altogether used in a restrictive, and not an enlarged sense; and that the plain, unequivocal intention of the Convention, by their alteration of the clause, was to narrow the discretion of Congress, as to the selection of its means in exercising its enumerated powers. Can any man in his sober senses, believe, with the Supreme Court, that the terms of this clause, "purport to enlarge, and not to diminish the powers vested in the Government," or that it was not "a restriction on those already granted." In the words of the Supreme Court, I say, "it is too apparent for controversy."

*Journals 71. † Journals 215.

But that it was understood in Convention as a restriction, is evident also, from this circumstance: — The draft of the Constitution reported by the committee of detail, was the subject of daily debate from the 6th of August to the 17th of September, when the Convention finished its work, and yet this clause," as amended by the committee, never was altered, or proposed to be altered. It stands this day in the Constitution, as it was then written. It cannot, surely, be believed, that if any one man in the Convention, had thought with the Supreme Court, that this clause would be held to be an enlargement of the powers of Congress; or, that under its phraseology, were lurking all those powers which Congress are now exercising, to the destruction of the State Governments, and which it calls implied, though some of them are as great, and greater than any of the specially delegated powers, it cannot, I repeat, be believed, that there would have been no opposition to it. The jealousy existing in the minds of the members from the small States, was too strong, and too sensitive, to admit of such an idea.

But, says the Chief Justice, "This power is placed amongst the powers of Congress, and not the limitations on those powers." This remark is deprived of some of its weight, if we consider that in Mr. Pinckney's draft, in which the clause first appeared, the powers and the limitations on the powers, are all in the same article — his Constitution being divided into articles alone. But, waving this view, upon which I place but little reliance, it will yet be seen, that the clause, as a restriction, stands exactly where it ought to stand.

It seems to be admitted on all sides, that were this clause entirely struck out of the Constitution, that the power to pass all the laws, which might be requisite to carry into execution, powers conferred on the legislative body, would have resulted to that body by unavoidable implication. It would have been absurd, to create a Government with legislative, executive, and judicial powers, if the Legislature could not make laws to execute the powers of the government. A power to lay and collect taxes, excises and imposts, would be nugatory, if it did not involve the power to pass laws, to appoint the officers, and to regulate the mode of collecting those taxes, and to punish individuals for the infraction of revenue and other laws. All this is too plain to require illustration. The insertion, therefore, of Mr. Pinckney's clause, "to make all laws," &c. was not an act which either enlarged, or diminished the powers which preceded it; it was simply a declaratory clause. — It was declaratory of that authority, which in the absence of such a provision, Congress would have possessed. Congress without it, would have had precisely the same powers which, by some, the clause is supposed to give. Even Mr. Hamilton, in his Federalist, (No. 33) in defending this- part of the Constitution, does not agree with the Supreme Court, that this clause enlarges the powers of Congress, Such an admission would have defeated his end. He considers it, and calls it "a declaratory clause," and says, "that the introduction of it, could only have been done for greater caution, and to guard against all cavilling refinements in those, who might feel a disposition to curtail and evade the legitimate authorities of the Union." Mr. Pinckney's clause then,, being declaratory, stood in its proper position in the Constitution.

With all due deference to the Supreme Court, I maintain, that the proper place for a clause, declaring the sense of the Convention, as to the powers which are to result from other powers, expressly and previously given, is at the end of the enumerated powers so given; nor, could the restricted sense, in which the Convention would have its views expressed in such a clause, make such an essential difference, as to have warranted the transfer of the clause from its position, to be placed amongst the limitations on the powers of Congress — some of which limitations, annihilate their powers on certain subjects. The design of the clause in question, was, not so to restrict, as almost to annihilate the rights of the National Legislature, as to its means of executing its powers, but simply to declare, that in the choice of its means, it must prescribe to itself, necessary and reasonable bounds. The clause is declaratory, and is in its proper place.

Had the original clause of Mr. Pinckney been adopted without alteration or amendment, there might have been some ground for the broad principle laid down by the Supreme Court, that "let it [the end] be legitimate, and within the scope of the Constitution, and certain means designed to be used, be appropriate, that the degree of the necessity is a question of legislative discretion alone." But, even then, I would submit, that the true exposition of such a clause, in reference to certain amendments in the instrument, and to the peculiar circumstances which gave rise to the Constitution, and which are anomalous in the history of the world, would have been, that Congress could only pass such laws as had a simple, a direct, a natural, and an obvious relation to the subjects on which they were to legislate; a relation, so plain, as to be generally acknowledged; not such a relation as is to be established by an ingenious construction. It cannot be conceived, that under a general authority, to pass laws for executing certain delegated powers, it was ever designed, that powers should be used as means, between which and the end proposed, there is a connection it is true, but the connection distant and not immediate, remote and not simple or direct. The construction must be such, as not to divest the States, of those numerous undefined powers, which they reserved to themselves, when they entered into the compact.

But no sooner does Mr. Pinckney's proposition come from the hands of the committee of detail, than the character of the declaratory clause becomes changed, it is not an immaterial change in phraseology — it is not a bare transposition of words, making no essential variation in the sense of a paragraph, that is here introduced. It is an alteration in substance. It alters and controls the sense of the whole clause. It causes that declaration which might have been taken in an unqualified, to be used in a restricted and a qualified sense. As largely as Congress might before have claimed the liberty of ranging in the wide and extensive fields of construction and implication, culling and gathering for the use or the ornament of the Government, their choicest fruits and fairest flowers, yet, now it is cautiously forbidden in its rambles, to touch any but those which, whilst they are essential to nourish and sustain in health, the great body politic of the General Government, yet do not diminish the supply, which is to keep up the same healthy action in every individual member of the confederacy. The Chief Justice admits, that had the clause been in another place, and worded, "In carrying into execution the foregoing powers, and all others, &c. no laws shall be passed, but such as are necessary and proper," that in such case, the clause would have unquestionably been restrictive in form, as well as effect." Now, in the name of common sense, my fellow-citizens, where is the difference, between the case put by the Chief Justice, and the case, as it actually did occur in the Convention. A. in the Convention, proposes that Congress, in executing its powers, "shall pass all laws whatever." B. objects to it, unless the words “necessary and proper" be substituted. The amendment of B. is adopted. Is not this precisely the same thing, as if the Convention had said, in executing your powers, you may pass laws, but such laws must be necessary and proper. Let us not quarrel about words, but look to the plain intents of men, as evidenced by their acts. The clause is a restriction, both in form and in effect. If there be any distinction, it is a distinction without a difference. The decision of the Supreme Court, in this view, is unsound. If the rights of sovereign States are to be wrested from them, and the supremacy of the General Government, to rest on principles, with no more solid foundation than those promulgated by the Supreme Court, there is an end of the Federal Union. If Congress can create so great a corporation, and so tremendous a monied engine, in the hands of any Government, as a National Bank, and call it "a necessary and a proper law" for "collecting taxes," it will be in vain for us to say, that internal improvements and tariffs, and other systems of extortion and tribute, are not necessary and proper laws "to regulate commerce." If our people acquiesce in this, as sound law, there is no course left for us, but to submit and to be ruined.

NO. 10.

The Supreme Court, in contending for its extended construction of the Constitution, would draw a distinction between that instrument and the old confederation, which certainly cannot be maintained on the grounds it assumes. It would impress upon us, that the exclusion of the word "expressly" in the one compact, and the insertion of it in the other, included or excluded in either, the idea of implied powers. The words of the 10th amendment to the Constitution are, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In the confederation, it is thus expressed: "Each State retains every power, jurisdiction and right, not expressly delegated to the United States."

Let me here premise the distinction, which must forever exist between the case of a people emerging from a state of revolution, without any government, and assembled to form one; and a case, where the people already are associated, in so many independent political communities, each having its own regular government. In the one case, it is intended, ex necessitate rei, that all powers should be vested in their new rulers, with certain limitations. What is not here reserved as a bill of rights to the people, is clearly designed to be given. But, in the other case, where the people are governed in so many distinct sovereignties, and are willing to divide the sovereignty with a common head to direct the whole, it becomes necessary to state, not what powers are withheld, but what powers are given. In the first case, the powers given are general, with certain exceptions — in the second case, the powers are altogether special. In the one case, every thing that is not retained is actually surrendered — in the other, nothing can be claimed that is not clearly given. The tenth amendment, therefore, to the present Constitution, and the second article in the confederation, already quoted, were only declaratory clauses. To the States, or to the people, were reserved, as a matter of course, all powers which were not surrendered. There is no need to distinguish here between express and implied powers. Where any power is surrendered to a legislative body, the power to make the laws necessary to execute that power, is also surrendered. To these positions all men must give their unqualified assent.

In point of construction then, the Supreme Court is in error when it supposes, that had the word "expressly" been inserted in the tenth amendment to the Constitution, that any difference whatever could have been created in the relative lights of the parties to that compact; and in point of fact it is equally and most egregiously wrong, in asserting that the insertion of that word in the old confederacy, caused embarrassments to the old Congress "by excluding incidental or implied powers." The Court might to have known, that the confederation languished from time to time, not from any want of power, over the subjects which were entrusted to it; but because for the execution of those powers in practice, it was made, by the terms: of the compact, to depend too much upon the individual States, — Though their power to raise money, by requisitions upon the States, was indefinite, yet they had no power to enforce their requisitions, , when the States were backward in complying with their quotas, except they were to do it by the sword. The confederation failed, not because it was deprived of power by implication, (for the fact is otherwise) but because it had no power of direct legislation upon the people.

But the Old Congress did possess implied powers, (that is as far as language could convey such power, and exercised them too,) and in a much greater degree than is given to Congress under the present Constitution. It had the "sole and exclusive right and power" of determining on peace and war: the sole and exclusive right and power, over the post-office, and over the regulation of coin, and every other subject confided to its government, without one single exception. In the present compact, there are no such words in the enumerated grants of power, excepting in that clause, which gives to Congress exclusive legislation at the Seat of Government, and over its forts, dock yards, &c. Were it not, that there are express limitations on the power of the States in other articles of the instrument. who can doubt but that the power of the States, as to raising armies in peace, issuing coin, and laying impost and export duties would have been concurrent with Congress, on account of the grant of power in these cases not being "sole and exclusive." Even Mr. Hamilton does not doubt, but admits it. [Fed. No. 32.] The power of the States, at this moment, to tax indefinitely, by excise, by stamps, or by any other duty, provided it be not on imports or exports,) though such taxes might even interfere with, and greatly embarrass the fiscal operations of the General Government, is according to the expositions in the Federalist, as unimpaired as ever. The decision of the Supreme Court admits that there is a concurrent jurisdiction in the States, in the article of taxation, though not to the extent to which Mr. Hamilton is understood to maintain those doctrines. Mr. Hamilton tells us [Fed. 33] that "though a tax for the use of the United States, would be supreme in its nature, and could not legally be opposed or controlled; yet, a law, abrogating or preventing the collection of a tax laid by the authority of a State, unless upon imports or exports,) would not be the supreme law of the land, but an usurpation of a power not granted by the Constitution." The State of Maryland no sooner taxed the Bank of the United States, under the above exposition, than the Supreme Court decides it to be unconstitutional, — A memorable triumph this of metaphysical learning over the plain intent of the Constitution.

But I am digressing. If there be a difference between the old and the new compact, the difference is in favour of the confederation, and destructive of the reasonings of the Court. The confederation, I repeat, had implied powers. If, for instance, a surrender of the "sole and exclusive right and power" over each enumerated subject of power in this compact, did not deprive the States of a concurrent power, in any way, over such particular subject, to what intent is language taught? If the States are deprived, from the words of the grant, of all power over the subject matter, do not the minor or implied powers go from them, as well as the original and substantive powers? To whom else could the minor powers belong, if they belonged not to the Old Congress? — They must belong to the States or to the Congress. To the States they could not belong; for they surrendered all jurisdiction whatsoever over the subject. — The Congress, on the contrary, shews a grant, in such words, as embrace the incidents as well as the power itself.

Hence, the weakness of the argument, that, because the States under the old compact, retained every jurisdiction and right not expressly relinquished, that the Old Congress had no implied powers. The Congress could pretend to no implied powers, but what belonged to subjects acknowledged as within its sole jurisdiction, and the States retained, without dispute, all implied, as well as original powers, on subjects not given away by them. But the Old Congress did exercise implied powers. It is not necessary to cite the instances — one will be sufficient. It created and incorporated the Bank of North America, and as a measure indispensably necessary to the exigencies of the Union; and it passed, I believe, with but one dissenting rote. The Supreme Court would not say this was not an implied power; nor can any one pretend that there was not a greater necessity for it than the present Bank. The indubitable fact is, that the Confederation would have died a quiet and a natural death, whether this magic word of the Supreme Court, that word "expressly" had been omitted or retained. In all the addresses of the Old Congress to the States — in all its appeals to their patriotism for a change of the articles of Confederation, (the last appeal, I believe, was in April 1783,) there is not a hint of its embarrassment, or its difficulties, as proceeding from the want of implied powers. Its powers on the parchment, were as great and as paramount, as it could desire them to be on such subjects. But it wanted that, which gives life and vigour to every other power, and without which. no Government can go on, to-wit — the power of raising money by taxing the people, instead of depending upon the States to raise its ways and means. This power of taxing it could not possibly exercise as an implied power, because, in the eighth article of the compact, there was an express provision that the States should supply the National Treasury. It was the want of a power to lay imposts of which it complained. It had no power to regulate commerce. It solicited over and over again, that the States would permit it to lay certain imposts for a limited time, so as to produce some little certain revenue. — Some consented, and others fettered their grants with such restrictions; New-York, particularly, as to make the power useless. It "was in the situation, of the famous Confederacy of 1570 between the United Provinces, or rather in a worse situation, for there a small power to raise imposts was given. In that Confederacy, the States were not punctual in obeying the recommendations of the Common Council. Holland bore the burthen of that league, and so here some States paid three or four times their quotas. Two States, it was said, paid nothing. Holland settled her business in part, by marching an army into one of the provinces to compel payment. — Our Old Congress had not the power of settling matters by the sword. It wanted money, and it had no power to tax; and had it taxed, it would not have been paid. The want of a power to regulate commerce, was the sole cause of the inefficiency of our old Government, and not the want of implied powers, as is asserted by the Supreme Court. This is history, and this is fact.

Why then does the Supreme Court say, that there is that in the articles of Confederation, which excluded incidental or implied powers? And why| in the second place, does it assert, that it is the omission of this word "expressly" in the tenth amendment "that leaves the question open, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other?" The question, I aver, is not more open by the omission, than it would have been by the insertion of the word. The Court might have known, that even if the powers of the Old Congress were not sole and exclusive, and, that the phrase there might have been so expressed, as to exclude the idea of implied powers; yet, that its omission in the present compact, could not even in that view, give to the present Congress, any powers which it did not possess without it. There is a distinction which is manifest upon the Court's own view of the subject. In the present Constitution, there is an express clause, giving to Congress the power of making the necessary laws to execute its powers; and therefore recognizes, thus far, implied powers. In the old Confederation, there is no such express provision. How, therefore, the Court, which rears its whole superstructure of implied powers upon this express clause in the Constitution, which it regards as designed to enlarge the powers of Congress, can condescend to lay any stress upon, or even to notice the omission of a most insignificant word, is most extraordinary. Could such a word, if it were inserted, strip the government of its powers, when, according to the Chief Justice's exposition of the phrase, "necessary and proper," the Government has an unlimited choice of means under an express power — unquestionably it cannot.

I have said that the word is insignificant. It is a word in my view, so harmless, that whether it be inserted or excluded from the tenth amendment, no possible alteration can be produced in the rights of either party. For A. to say to B. "The power I do not give you is retained by me," is certainly as strong and as expressive for all purposes, as if he had said, what I do not expressly give you, I retain — The first phrase is the better of the two — it is more simple and expresses as much. In a deed of Conveyance of land, would the grantor give more, or the grantee receive more,' by using the words "doth absolutely and expressly, and clearly, and unequivocally grant, bargain, sell and convey," than if the words were, "doth grant, bargain, sell and convey." — It is too plain.

When the State Legislatures sent in their' ratifications of the Constitution, and proposed their amendments, they expressed, their sense as to implied powers, in various ways — Massachusetts, New Hampshire, South-Carolina and Rhode Island, used the words "all powers not expressly delegated" — Virginia and North-Carolina left out the word — New-York expressed it' thus, "all powers not clearly delegated" — Rhode-Island in the Bill of Rights has it, "not clearly delegated," and in the amendments proposed by the same State, we find the word "expressly" used. As soon as the first Congress was convened under the Constitution; it considered all the amendments proposed by the States — it took the substance of them, and made out from the whole, twelve amendments to be submitted to the State Legislatures, ten of which were accepted, and two rejected. At a subsequent period, two more were proposed and adopted, and thus stand the twelve amendments to the Constitution, In submitting the tenth amendment in question, it was submitted as it now reads, omitting the word "expressly.". — A motion was made in the lower House of Congress to reinstate the word, but lost — only seventeen votes in the affirmative. A similar motion was lost in the Senate. The omission of this word could not, and did not make the difference of a hair in the rights of Congress and the States; had it been important, the motions would not have been negatived by large majorities.

From all that has been said, in this and the preceding number, it must be seen by all who are not wilfully blind, that Congress has no means of executing its implied powers, but what it derives from an express grant to that effect in the Constitution. Had there been no express grant, it might have had some ground to claim by implication of law, the liberty of ranging at large into many incidental powers, which the restrictive terms of the grant decidedly forbid. — The design of the grant, or the declaratory clause, with the restrictive phrases, was, as I trust I have shewn, to forbid Congress from selecting any means but what were direct and simple. Congress has not sovereign means for executing its powers. Sovereign means are the means ordinary and extraordinary, which belong to complete and undivided sovereignty, in the selecting of which, there is no restraint, as to the free use of any, and every measure, which bare convenience may suggest, and where the unlimited discretion of the sovereign is the only rule, and his will the only law — Congress is not that sovereign. The principle of the Supreme Court is true as a general proposition, that the grant of a sovereign power includes the grant of all sovereign means, applicable to the end of such power — but it is not true in the case before us. A restriction has been placed by the Convention, upon the implied powers of Congress. It is not simply a restriction according to the plain and obvious import of the words, but it is a restriction in fact, the evidence of which fact, is to be found in the journals of the Convention.

What then becomes of the decision in M'Culloch, vs. the State of Maryland. The ground of the Supreme Court, that the declaratory clause enlarges rather than abridges the powers of Congress has failed, and thus must fall to the ground, that huge pile or pyramid of constructive powers, which the industry of the Chief Justice, with the aid of all his transcendant powers of reasoning, has been rearing to throw into the shade the sovereignty of the States. The Court, too, is wrong, decidedly wrong, when it pronounces, that without such a liberal construction as its own, to the clause in question, "the Constitution would be a Splendid Bauble." Experience and fact boldly contradict this assertion. Abolish the Bank to-morrow, as it was abolished once before. Call in the Brigade of Civil and Military Engineers, who have been taking their summit levels all along the great Alleghany ridge of Mountains, with a view to defend us against the British. Stop all further appropriations for Canals and other National works, which are drawing the life blood of the South, and enriching the North. Leave the great Cumberland road, upon which upwards of a million of dollars have been expended, to be hereafter repaired by Maryland, or by Pennsylvania, who have such an interest in it, and who are struggling for the trade of the West. Leave the American Negro Colony on the coast of Africa to take care of itself, or to be eaten up by the Savages. Put out of Congress, all the petitions and memorials of Judge Washington's Colonization, or Insurrection Society. Cast into the waters of eternal oblivion, the speeches of some of our own Statesmen on Internal Improvements and Military Roads; and all the ultra and sweeping doctrines of the "general welfare." Repeal the Tariff Laws, and disclaim all pretence to the exercise of great substantive sovereign powers, under the flimsy pretence of their being implied means of carrying into effect other powers. In a word, proclaim from Passamaquoddy to Cape Florida, that the "means to an end," and the whole decision of the Supreme Court is an absurdity — and who besides the Supreme Court will venture to say, that for the want of a power to do all these things, our Constitution would be a bauble. No, my fellow-citizens, the Government for thirty years was respected at home and respected abroad. Without a National or other Bank, we achieved our independence. Without a Bank, and Military Roads, and Canals, and Tariffs, we waged a successful war a second time against the greatest power in the world, and we have arrived to our splendid rank amongst the nations of the earth, by the exercise of powers, which we all agree the Government possesses, and about which, there never was, at any time, the least difference of opinion. If an adherence in good faith, to the true principles and spirit of the compact, (with but few exceptions) from the foundation of the Government, (to the accession of Mr. Monroe, and the introduction of the "AMERICAN POLICY,") was upon that construction of the instrument, which would make it a mere bauble, it was exactly that sort of Bauble, which of all others, we in the South want, and ought to have, and MUST have.

Take away all the powers which Congress have usurped within the last eight or ten years, and let us go back to the time of Mr. Jefferson, and so far from the Government of the Union being embarrassed in any way by the safe and the rational construction here contended for, against that of the Supreme Court, I will be emboldened to say, that it will daily become more and more firmly rooted in the affections of the people — the peace and harmony of the Union will be more and more consolidated, and the arm of the country for commerce and defence more strengthened, and invigorated; whereas under the construction of the Supreme Court, the importance of the States will be daily diminished, as the patronage and power of the General Government shall be augmented, and their sovereignty and independence will be endangered and finally destroyed; and thus will perish, perhaps, the best hopes of the friends of civil liberty in both hemispheres.

NO. 11.

That Congress in executing its delegated powers, was not to possess, all the diversified means, which belong to sovereign powers generally, is not only evident from the restriction imposed on their means, as already noticed, but it may be made apparent by another consideration, which is, that had such a doctrine been entertained, many of the provisions in the Constitution, would have been rank surplusage, and from such a reproach, I presume, we all agree; the Convention was exempt. But the doctrine of the Supreme Court, was not the doctrine of 1787. The Constitution speaks no such language. On the contrary, the instrument abounds with examples, which clearly indicate an opposite purpose. Where can it be manifested more strongly, than when it confers, as distinctly enumerated powers, those powers, which, throughout the world, are understood and acknowledged, as only means for executing other powers already given.

For example: — Let us take the power "to make war." Are not the "raising of armies," "providing and maintaining a navy" and "the power to call out the militia of the United States," all incidental to the waging of war? What, in the language of the Supreme Court, can be more requisite, and "more fairly and plainly applicable to the end of war," than the means just stated? All of these are every where, the usual and acknowledged means of war. According,then, to the decision of the Court, the power to declare war, carried with it every other power having a relation to war. But, the members of the Convention did not think so, for it appears, that they gave a distinctly enumerated power — 1st, to raise armies; 2dly, to provide a navy; and 3dly, to call out the militia. Again — let us take the two enumerated powers to raise an army and a navy, would we not suppose that such powers as these, would give also the power to discipline the army and navy? And yet the Convention give a separate power to "make rules for the government and regulation of the land and naval forces." What makes it stronger, is, that this clause was not in the reported draft of the Constitution, but afterwards solemnly introduced as a seventeenth power. Again — what can be more necessary to war, and to armies and navies, than for the Government which possesses the sovereign power on such subjects, to possess, at the same time, "exclusive authority over its forts, magazines, arsenals, dock yards, &c." and yet the Convention did not think that the power to the one, necessarily gave the power to do the other, for it confers this power by a separate article. Let us go farther, and take the power "to coin money." Would not, nine men out of ten, pronounce, that according to the decision of the Supreme Court, the power "to protect that coin from counterfeits," was necessarily and naturally implied; but the Convention did not think so, for it gave a distinct power "to provide for the punishment of counterfeiting the current coin of the United States." Take the power to "borrow money on the credit of the United States" — what power is there, that can be more incidental to this power, as a means to an end, than to protect Government securities from discredit by forgery, by punishing those who counterfeit them. Ask the Chief Justice, if the Government, which is so sovereign as to borrow money, and bind the people, to any extent, can pass a law to provide for the punishment of counterfeiting the securities of the public debt, and he would smile at your ignorance; and yet, the sages of 1787, were so ignorant, that the one power naturally gave the other, that they unnecessarily provided for both. Let us take the power to "regulate commerce with foreign nations," &c. Here is a general power susceptible of an extensive definition, if we choose to plunge bead and hears into implication. Few of us, however, can differ as to what was really meant by the regulation of commerce. Such a power, it is universally admitted, embraces every subject connected with the arrivals and departures of vessels, such as imports and exports, navigation laws, tonnage, pilotage, light-houses, (not "of the skies,") &c. But that the States did not, by the power to regulate commerce externally and internally, intend to surrender to Congress, a legislation over every subject connected with commerce, directly or indirectly, is evident, from their deeming it necessary, to confer distinct powers on some subjects, which are manifestly commercial. What subject, for instance, can be more purely commercial, than the subject of Bankruptcy. But that the States did not consider a Bankrupt law as incident to the regulation of commerce, appears by their providing for such a law, by a separate power. Coining money, and regulating its value, both domestic and foreign — fixing a standard of weights and measures — defining and punishing piracies and offences against"the law of nations — establishing and regulating a post-office — laying imposts — all these are naturally allied to the regulation of commerce: and yet, there is to be found in the Constitution, a separate power for each. Now, who can doubt, but that if none,of these last enumerations of power were to be found in the Constitution, and the Supreme Court had been called on to decide, whether under the great sovereign power to "regulate commerce foreign and domestic," Congress could establish a post-office, or a Bankrupt law, or have a national coin, fix a standard of weights and measures, or punish pirates, &c: but that the Chief Justice would be astounded, that the power of a Government so sovereign, should be doubted in these instances. If I have ten grains of sense, or if my readers have as many, they must forcibly see, that a post-office, or a bankrupt law, or a standard of weights and measures, has an affinity to the regulation of "commerce between the States," as a means, fully as close as that of a Bank to the "collection of taxes," and for a plain reason. Taxes were gathered before the Christian era; and were collected in our country, as they now are in some countries, without the aid of Banks. But it would be difficult to find a country strictly commercial in the modern sense of the term, in which there is not a bankrupt law, and a post-office, and an uniformity in weights and measures.

To say, then, that the people of the States, when they were conferring sovereignty on their new rulers, entertained the opinion, now ascribed to them, by the Supreme Court, viz.: — That "every power, given by them was intended to be so sovereign, that it necessarily carried with it, every other appropriate power, which, in the discretion of Congress, it should regard as applicable to the end of such power," is not true. Had such been their meaning, there would not be found the useless provisions, with which, in such a view, the instrument must be pronounced to abound. Armies and navies, and forts, magazines, and dock yards, and coining and borrowing money, &c. are all the acknowledged means of making war upon foreign States, and as such, naturally involved in such a power. And yet the people made these and others, so many distinct powers, thus manifesting, as clear as the Sun is in the Heavens, that they did not intend the Federal Government to exercise any important power, as a means to other powers, which was not expressed in the enumeration.

I am not sensible that the foregoing view of the subject can be confuted, unless it be urged, that the use of surplus clauses, or language in the Constitution, or the circumstance of giving as special grants of power, those which necessarily were implied, from what was already given, or as resulting naturally from the whole mass of powers, ought not to be opposed to the plain axiom, that the United States Government was to be as sovereign, on every subject entrusted to it, as the States were to be, as to what was retained. The answer is this — it would be idle, worse than idle, to talk of surplus clauses in the Constitution. The men who framed it, were not ignorant or illiterate men, who in expressing their intentions, are apt to use more words than are necessary. On the contrary, the sages who deliberately discussed and considered every article and line of this charter, were fully aware of the import of words. Amongst them, were unquestionably the first Statesmen and Orators of our country. Very many of them were professional men, and it would be a reproach to such men, assembled as, they were for months and months, to mature and perfect one of the greatest works ever entrusted to men, to imagine that there is in that instrument, called the Constitution of the United States, so many clauses, that were not designed to have a full and an explicit meaning. If there be any one important state paper, or public document, in the world, which, for the clearness of its general views, the minute arrangement of its subjects, and the exactness, with which it defines the power which it intends to confer, is more distinguished than all others, that document is the Federal Constitution. There is in it, nothing of redundancy, of prolixity, or of circumlocution. For brevity and perspicuity of expression, it is unrivalled as a composition. There probably is not a sentence in it, which was not, amongst the members, the subject of conversation without, or the theme of debate within the halls of the Convention. There is certainly not a clause which has been retained, in which, by striking it out, a material alteration might not be produced, in the sense and meaning of those who penned it.

When, therefore, these sages were so precise in enumerating the powers they designed to confer, some of which are so plainly involved in, or incidental to others, it was not because these persons were ignorant that armies, and navies, and a national mint, and a national debt, were the most obvious means of war — it was not because they believed, that the power to coin money, and to borrow money, did not carry with it a power to protect their coin and their securities from debasement or counterfeiting, or that they believed that post-offices, and bankrupt laws, and weights and measures, were not connected with commerce, that they provided separate powers for such subjects — but it was, because they wished to inculcate, and to have it clearly understood, that they designed, that no power should be exercised for which there was not a. specific grant. They designed, it is true, that all the necessary and proper laws should be passed, to execute those powers; such laws, in fact, without which the power would be nugatory, and they added a power for such purposes: But they did not mean, that a power, as great as any of those enumerated, should be claimed, under the power to make necessary laws. — Their object was, to leave little or nothing, to construction; and, that there should be no necessity, or excuse, on the part of Congress, for passing the limits of power assigned to it, great and uncommon diligence, seems to have been used, not to omit any thing, but to provide every power, which could possibly be necessary, to regulate the two great objects for which the Government was established, to wit, COMMERCE and DEFENCE. Had they been less precise, they foresaw that the Government could not proceed in the exercise of some of the most necessary powers, without feeling the want, of an express warrant of authority in the Constitution, and that it would be induced to resort to usurpation from necessity. To guard against its early resorting to constructive powers, which they must have dreaded, and to which, as wise men, they saw, there could be no end, they judiciously conferred on Congress, an express warrant for every material power which the Government could possibly need, in all time to come, out of mind, for the happiness of the American people. And, I ask my fellow-citizens — I call upon the members of the Bar, to look at the instrument, and to designate, if they can, what power it is, that any Government can want, for the purposes of those great objects, WAR, NEGOTIATION, and COMMERCE, which has been withheld from the Federal Government by the States. What power is there, I ask, and I ask it triumphantly, the want of which, to render us an happy and an united people, is not to be found written down in the Constitution; or, who can say, that this Government, in its experience of forty years, (during which time it has been at war twice, and in peace has conducted us to the most unexampled prosperity) when it was about to use a power for objects, in which all the people are interested, to wit, defence and commerce, could ever point to the Constitution, and shew, that for this or that power so about to be used, it could not find an EXPRESS WARRANT. No man can say it; and this circumstance alone evinces the wisdom, the consummate wisdom of the men who framed the Constitution. Such a fact is worth a million of arguments to strengthen my position, that the new Government was never to be carried on by implied powers. The enumeration of so many powers, which are but as means to other powers, is TOTALLY IRRECONCILEABLE with the principle, upon which is founded, at the present day, under the sanction of the Supreme Court, all those implied powers, which are now exercised by Congress.

Our sages having thus granted every necessary power, and placed at the disposal of the Congress, all the means which it could possibly need to administer the government, to the happiness of the people; and having withdrawn every pretext, for the resort to usurpation from necessity, which would have been the case, had they been less precise, the State Legislatures were yet not satisfied. The first care of these Legislatures to prevent dispute, was, to draw around the powers of Congress, certain boundaries, beyond which, it should never, in any event, pass. "The enumeration of certain rights," says the Constitution, "shall not be construed to deny or disparage others retained by the people." And again — "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What is the meaning of these clauses in the Constitution, connected with the enumeration of powers and the history of the times? It is this: We, the people of thirteen States, desire a Federal HEAD to regulate our commerce, and a Federal ARM to protect us. On no other subject are our wants common, or our interests the same. To this end, and this end alone, we need a General Government, and for these two purposes, the power we give, shall be exclusive. The sword and the purse we give you; but as we design the Gov eminent for an especial purpose, so we shall limit you by special powers. To confer power on you in general terms, would be to give you, with the sword and the purse in your hands, power to destroy the States, and to consolidate our people into a nation. ' In this Charter you will find yourselves called upon to regulate commerce, and provide for the public defence. It contains every substantial power which you can possibly need. As strange as it may seem to you, that when we give you the sovereign power, for war and foreign negociation, and commerce, we should specify the obvious means which such powers necessarily involve; yet we have a design in this — we intend, that in your progress onward as a Government, you shall be provided with means for your journey, and use none but what we shall give you — and that you may not reproach us with carelessness or negligence in the supply, we have made it most ample; and that you may not wander from your path, we nave prescribed the boundaries, beyond which you must never tread your way.

Is not the idea an absurd one, that the same men who deemed it necessary to give to Congress by a special grant, the power to give a patent for an improved Cotton Gin, should intend that it should exercise powers, not only not named, but not even hinted at — powers which belong to undivided sovereignty? The words "Canals" or "National Roads," or "Internal Improvements," are not to be found in the Constitution; or, any words which ingenuity can torture to mean any such thing, and yet Congress is projecting national works, which, whether we regard their SCALE and immensity, as to the territory upon which they are to be spread — the TIME in which they may be executed, or the COST at which they are to be completed, would not shrink in a comparison with many of the great enterprises of antient and modern times. Vast extents of roads are to penetrate our forests — an extensive peninsula is to be divided in twain-r-chains and chains of mountains are to be traversed with canals, and all the elements of power about to be developed, of which Imperial Rome, in her proudest days of conquest and dominion, has left us so many monuments — on which, even a Napoleon might employ his genius and his care — and which belong only to those States and Kingdoms, and those alone, which have exclusive dominion over the soil and territory, as well as over persons and other subjects, which are the objects of Civil Government. It is too monstrous, that a Government, so limited by the Constitution, that it cannot, without the EXPRESS consent of a State previously obtained, purchase and exclusively hold land for its Forts, Magazines, Dock-yards, &c. — shall dare to claim such a paramount authority, as to have national roads and national canals, which involve the right of territorial jurisdiction, over every portion of twenty-four Sovereign States.

Against such doctrines, and such foul usurpations, I protest. As acute as may be the intellects, and gigantic as are the reasoning faculties of those who sit upon the judgment seat of the highest tribunal in our land, yet I would not give the unsophisticated, and the patriotic, and the honest views which may be taken of the Constitution, for all their decisions, were they ten times as learned as they are. No intelligent man, can impartially read the decision of the Supreme Court, and contemplate the proceedings of Congress of late, without pronouncing that the Constitution is A DEAD LETTER — It may mean ANY THING, or it may mean NOTHING. If my views of the subject are unsound, and my fellow-citizens shall pronounce that Congress is in the prescribed limits of its powers, adieu, a Long Adieu, to the interests and the SAFETY of South-Carolina.

NO. 12.

Let us continue our subject. Amongst the enumerated powers in the Constitution, is the power "to borrow money on the credit of the United States." This is a power unlimited in its extent, and embrace." every possible mode known, or to be known amongst nations, for raising money for the exigencies of Governments. To have affixed any limitation of such a power, would be, according to the general views of the Supreme Court, to tie down Congress to provide for the public safety, not only in this, but in after ages, and to deny to them a power commensurate with the great object; to-wit, the liberty of accommodating its means to the vicissitudes, which are constantly taking place in the affairs of a country Had, therefore, the question before the Supreme Court been in 1819, whether Congress could "emit, bills of credit," or in other words, resort to the "paper emission" of the revolutionary war, who can doubt, but that the Supreme Court would have then decided, that the Legislature had such a power. — What, "shall a Government (to use the language of the Court) which has the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies; having entrusted to its government the sword and the purse — all the external relations, and no inconsiderable portion of the industry of the nation" — shall it be pretended, that such a Government, (should the public exigencies demand it,) has not the power, to issue continental, or paper money? But why do we reason about it? On such a question, had it occurred at that time, I would have asked no favours of the Court. I would have demanded of them to decide, that Congress could issue continental money. I would have adduced to the judges, the case of M'Culloch vs. The State of Maryland, where they decide, that a corporation is but "a means to an end," and that a National Bank is a means necessary and proper to the "collection of a tax;" and I would have insisted, that were such a bank an appropriate means for such a purpose, that bills of credit, were a still more appropriate means, and more plainly applicable to the end of "borrowing money on the credit of the United States," and of the power to declare war, and other enumerated powers in the Constitution. — That the one, had but a distant relation to its object, whilst the other, had a direct, and an obvious connection — that the latter had been the means, by which we had conducted a successful war for our liberties and our independence, and that it is a means, to which every government must resort, when it cannot raise money by other expedients. I would, moreover, have reminded the Court, that such a power must have been intended to be involved in the other powers, inasmuch as an express limitation is to be found in the Constitution, that the States shall not emit bills of credit, but that no restriction of the kind, is to be seen amongst the limitations on the powers of Congress. The Court, under such a view, to be consistent with itself, must have decided, that Congress could issue paper money.

But fortunate, most fortunate is it, for its reputation, that such a question never came before the Supreme Court, and that such a decision was never made. Had there been a decision, it would have established the extraordinary fact, that the Supreme Court gave to the Congress of the United States, a power which the framers of the Constitution had determined, that they ought not to possess. The fact would thus appear.

In the reported draft of the committee of detail, presented to the Convention, the clause in question stood thus: "To borrow money, and emit Bills, on the credit of the United States." On the 16th of August, when this clause was under consideration, a motion was made, to strike out the words "and emit bills," which motion was carried — nine States in the affirmative, and two against the motion. Had this been a mere motion to strike out these words, there might have been room to suppose, that the opinion of the Supreme Court, prevailed amongst the members, to-wit: that the major power necessarily included the minor. But the reverse of this is the conclusion. Mr. Luther Martin, from Maryland, and others, urged, "that it would be improper to deprive the Congress of the power to issue paper money; that it would be a novelty unprecedented, to establish a government, which should not have such authority. That it was impossible to look forward into futurity, so far as to decide, that events might not happen, that should render the exercise of such a power absolutely necessary." I will not quote the rest of his arguments; but, says Mr. Martin to the Legislature of Maryland: — "A majority of the Convention being willing to risk any political evil, rather than the idea of a paper emission, in any possible case, refused to trust this authority to a Government, to which they were lavishing the most unlimited powers of taxation, and to the mercy of which, they were willing to trust the liberty and property of the citizens of every State in the Union, and they erased that clause from the system."*

* Yates' Debates, page 57.

The lesson here inculcated is a most salutary one. It ought to teach all judiciary tribunals, and particularly the Supreme Court, that on all questions of constitutional law, unaided by the journals of the Convention, or other lights, the best rule of interpretation is the plain letter of the Constitution. That to travel beyond this, is to enter a boundless field of conjecture, in which there is always danger of giving to the Constitution a meaning, which the framers not only never had, but to which, perhaps, they would have given their most zealous opposition. In the instance before us, we have a most illustrious example. In the history of the clause just referred to, there is the most abundant evidence, that implied powers, as they are called, were never in the contemplation of the Convention The supporters of the motion, to strike out the power to issue paper money, must have been well assured, in their own minds, (and they were from nine States,) that no power, not included in the list of enumerated pincers,with the exception of the power to make the necessary laws to execute the particular power, could be claimed. Had they not thought so, it would be difficult to account, for their omitting to prohibit Congress from the exercise of the power in question, by adding it to the other limitations, on the powers of Congress. Their not providing for such a limitation in express terms, is conclusive, that they deemed it unnecessary.

It is much to be lamented, that the debates of the Convention preserved by Chief Justice Yates, do not extend to the later periods of the session of that body, when the enumerated powers were under discussion, as in that case, we should have known distinctly the views of members, as to the insertion and rejection of particular passages. Mr. Yates and Mr. Lansing, both deputies from New-York, left the Convention in disgust, as soon as the great outlines of the Government had been agreed on. The journals of the Convention, however, furnish us with some important materials, as to the rise and progress of some of the powers of Congress.

The first step taken by the Convention was, as to the outlines of the Government; for the members had no sooner met, than it was discovered that there were amongst them three parties of opposite views. The first party, Mr. Martin informs us, wished to annihilate all State Governments, and to establish a General Government in nature of a limited monarchy. This party was small, but several belonged to it who did not openly avow their sentiments. The second party was "not for the abolition of the State Governments, nor for the introduction of a monarchical Government under any form; but they wished to establish such a system as would give their own States undue influence over the other States. "A third party" was truly Federal and Republican, and nearly equal in number with the other two."

In order to lest the opinions of members, as to what the new Government should be, Governor Randolph, of Virginia, very early offered his fifteen resolutions, and upon these resolutions, did the members debate and differ, in committee of the whole, and in convention, for about two months; when, together with Mr. Pinckney's draft of a Constitution, also early submitted to the Convention, though not taken up, they were both referred to a committee of detail, to report a Constitution, agreeably to the resolutions as amended.

There is no need for our purpose, to refer to any of these resolutions as amended by the Convention, excepting the sixth, as it is this resolution alone, in which we are to look for the nature and extent of the legislative powers to be vested in Congress. It is in these words: — "Resolved, That the National Legislature ought to possess the legislative rights vested in Congress by the Confederation; and moreover, to legislate, in all cases, for the GENERAL interests of the Union; and also, in those, to which the States are separately incompetent, or, in which the harmony of the United States may be interrupted by the exercise of individual legislation."

This resolution was the basis, to which the enumerated, and other powers of Congress, were to be conformed by the committee of detail. "The general interests of the Union," was not a new phrase. It is used in the 5th article of the old Confederation, and is there synonimous with the term "general welfare," used three times in that instrument, to wit, in the third, eighth, and ninth articles. The committee, therefore, could be at no loss to understand what was meant by the term "general interests." It did not mean such interests, as a majority of the States might possess, as contra-distinguished from different and opposite interests, possessed by other States, which composed the minority, for it was not used in that sense in the Confederation, that body having no specified power on any subject whatever, in which one State was not equally, and directly interested with another.

The subjects upon which the Confederation operated, were those of WAR, PEACE, INDIAN TRADE, and Foreign NEGOCIATION. The old Congress, could not meddle with the navigation interests of the New England States, nor with the great agricultural interests of the South. These were the local interests of the States, over which they had no power, by any grant from the States, general or special. They had the charge only of general interests, strictly and truly so called. But there was one general interest, on which the Confederation could not legislate, and that interest was commerce with foreign nations. This was a paramount general interest of the whole Union, not an interest of a majority of the States, but the direct interest of every State — and the want of a common head to direct which in each State, was about to involve the whole in distress and ruin. The meaning of the word "general interests of the Union," becomes now to be obvious to the reader. The committee of detail understood the phrase. The path, prescribed for them, in drawing up the Constitution, was plainly marked. Their enumeration of powers, was to embrace, ac» cording to the resolution, first — The powers granted to the old Confederation, already referred to. Secondly — The general interests of the Union, amongst which, foreign commerce stands pre-eminent. In fact, it comprises almost every other general interest, not provided for in the Confederation. Thirdly — The cases, to which the States are separately incompetent to legislate with effect. Amongst these, is the power to grant patents and copy rights; defining felonies on the high seas, and offences against the law of nations — for which the articles of Confederation had made no provision Under this head, may properly be included, the power to declare the law and punishment of treason, and some others. Fourthly — The cases, in which the harmony of the States might be interrupted by individual legislation; such as, the regulation of the intercourse between the States; a national coin; naturalization and bankrupt laws. For these powers also, the Confederation had not provided.

The reported draft of the Constitution, by the committee of detail, it will be seen, is in consonance with the sixth resolution, and with the outline of power, fixed by the Convention.

That the committee of detail did not regard Agriculture, or Manufactures, or Internal Improvements, as a general interest of the Union, appears from their reporting no specific power, in relation to tries*' objects — nor are the words to be found either in the reported, or amended draft of the Constitution. Indeed, how could they provide for the interests of Agriculture — Though each State had its own agriculture: yet, in those days, the States designated as the Agricultural States, were the Southern States, whose interests were diametrically opposite to the growing Navigation interests of the Northern and Eastern States. It would have been as wrong to provide for Agricultural, (there were then no Manufacturing classes) as for Navigation interests — But as Navigation interests might be promoted, under the general power of "regulating commerce," it became the care of the committee to provide a limitation on this general power, and hence arose that clause in the reported draft, which says, that "No Navigation Act shall be passed without the assent of two-thirds of the members present in each House." This clause was afterwards stricken out — by which erasure, the great Eastern Navigation interest, which is decidedly a local, and not a general interest of the Union, is the only local interest which Congress can, at this day, promote, under the Constitution. It has the unlimited and the undoubted power. The manner in which this local interest came to be protected, is this — The staple and commercial States, as the Southern States were then called, wished to retain this clause, "lest their commerce should be placed too much under the power of the Eastern States — but which these last States were as anxious to reject. The Eastern States, however, notwithstanding their aversion to Slavery, were very willing to indulge their Southern brethren with a temporary liberty to prosecute the Slave Trade, provided the Southern States would, in their turn, gratify them by laying no restriction on Navigation Acts." The matter being difficult to adjust, it was referred to a large committee, consisting of a member from each State, and it resulted in this compromise — Slaves were not to be prohibited to be brought into the United States by Congress, before 1808 — and the above restrictive clause relative to Navigation Acts, was to be omitted. (See Yates' debates.) Thus it is, that an Eastern and a local interest, is in the power of Congress to promote — But it can foster and encourage no other,.under the Constitution.

NO. 13.

The report of the committee of detail, as connected with the basis previously fixed by the Convention, on which the enumeration of powers was to be made out, is worthy of considerable notice, and I may be pardoned, if I dwell longer on the document, even if I be chargeable with some repetition. It is conclusive, I aver, to shew, that they considered the "general interests of the Union" precisely in the sense in which I have used it, to wit, interests, in which each State directly participates, and not those interests, -in which a majority of the States, or of the people of the United States, are solely or principally concerned, and in which others, at the same time, have no share. The evidence of this their construction, is very ample in their own work, submitted to the Convention. In reporting the subjects, or cases for national legislation, there is not one., which is not undeniably as much an object of general concern in the South, as well as in the North; in New-Hampshire, as well as in Georgia. All wanted a disciplined militia, an army, a navy, a national coin and currency, public credit, and other means of defence — all were directly interested in foreign commerce, and in foreign negotiation — all needed some provision to regulate the intercourse, and to preserve harmony in legislation, between the States. If there be in the reported, or the amended draft, a single subject for their legislation, which is not strictly a "general interest," in our sense of the term, (except it be the power to pass navigation laws, now included in the commercial power, which we have seen was agreed to by compromise) let the advocates for an extended government point it out. It cannot be shewn. It would have been unwise and dangerous to invest Congress, with a power to legislate on subjects, in which eight States might be interested, and in which, the other five might have no interest, directly or indirectly. It would have put the minor States in the power of the larger; it would have invested Congress with a power to legislate unequally upon the States, a species of dangerous legislation, up,in which the Convention designed to exclude it. Nature, in forming these States, has not been blindly partial to any one. If she has conferred upon the South, the capacity to raise rich and valuable products, she has not been wanting in her magnificence to the North. They have their advantages too, which are obvious to all. — To put it in the power of Congress to legislate upon any subject, in which there is not an interest in common, between North and South, would be to suffer the majority to enjoy all the blessings given them by nature, and to take, by their influence and their power, from their weaker neighbours, all others, so as to aggrandize and build up, the prosperity of the larger States, upon the ruins of the weaker.

The whole scheme and theory of the Constitution, is directly opposed t» this, and the construction that would put five States, or a smaller number, so much in the power of the other nineteen, as to force them to contribute by money, or otherwise, to foster and raise up a manufacturing, or other prominent interest, of those nineteen States, is the construction of a TYRANT and an usurper. There is no warrant for this in the Constitution. In the reported draft, the words "common defence and general welfare," are not attached to the "taxing power," nor are such words to be found in any part of the draft. How they came to be inserted, will be hereafter explained.

In the Committee's draft of a Constitution, the word "canal or military roads, or manufactures," is not mentioned, though, as will be seen, in due time, these words were in familiar use at the time, in the Convention. — Even the word "post roads," is omitted in this draft. It stands, "to establish post offices," not "Post Offices and Post Roads," as it now reads. This is the more extraordinary, as in Mr. Pinckney's draft, referred to the Committee, there was a power "to establish Post and MILITARY Roads," and also, a power "to establish and provide for a NA TIONAL University, at the seat of the Government of the United States." But the Committee reported against Post Roads, Military Roads, and against the University. How could they do otherwise. The construction of Roads was a matter to which the States were separately competent; though they were not so for a Post Office. The establishment of an University, was for the interests of science. This formed no motive for the States to enter into Union, and to give up so much of their sovereignty In fact, these propositions did not fall within the meaning of Mr. Randolph's sixth resolution. The power to establish Post roads, was afterwards restored, six States in favor, and five in the negative. If considered, it is an harmless power. — Probably, the opposition arose from the fear that it might be regarded as a power to construct roads, and such actually has been the case. Mr. Clay and others, are of this opinion. But the construction is a wrong one. To establish a post road, is nothing more than to designate the towns, or the route, by which the mail is to be carried. If there be any doubt on the subject, the acts of Congress, relative to Post Roads, from the foundation of the Government to this day, incontrovertibly establish this construction. When Congress usurped its powers in making the Cumberland and other National Roads, the phraseology used in the acts, was peculiar. — It is remarkable. In the one case, the title of the act is, "An act to establish certain Post Roads." The enacting clause is, "The following Post Roads shall be established, viz. from Passamaquoddy, in the District of Maine, to St. Mary's, in Georgia, by the following route;" and then follow the names of cities, towns, and villages — thus establishing the principle, that to establish a post road, is, to fix upon the posts, where the mail is to be stopped and opened. But when the national roads were ordered, the titles of the acts are different, and the words are, to make and open roads, and money is appropriated for the work. There being no appropriation when the acts passed, "to establish certain post roads," and upwards of a million of dollars, when the national roads were opened, shews the substantial difference between establishing a road, and constructing a road. Congress itself, having admitted this distinction, by its own acts, and thus shewn its own sense of the meaning of the power to "establish roads," it would be a waste of time in me, to say more on this point.

The University was several limes proposed. First, by Mr. Pinckney, in his draft, but never reported on, and at last, finally rejected in Convention, on the 14th September, on a motion to insert a power for the purpose. The proposition for "military roads," was never renewed. When the Post Roads were only squeezed in by one vote, there could be no hope of military roads being acceptable. The proposition was put to sleep, by •the committee of detail: but, after a lapse of some thirty years, the dangerous elements of power, buried by the Convention in 1787, are all carefully disinterred; and, to provide for their removal, in due and solemn state, they are placed in that splendid sarcophagus, the memorable report of Mr. Calhoun, the then Secretary of War, "on Roads and Canals."

If there are amongst us, those who take any delight in grand Military Roads through our country, which the Government may, from time to time project and construct, let them be told, that these roads will only augment the patronage of the Government, and diminish that of the States, and that they must be constructed at an enormous expense, the principal burthen of which we must bear, and that the day may possibly come, though not in this generation, when these roads and canals, may become the Means, as they will the Monuments, of the subjugation of the South.

The vestiges of ancient roads in many parts of Europe, are the monuments which record the universal empire of the Romans. For my part, feeling and speaking as a Southerner, and situated as we now are, if I have any wish on the subject of roads, it would be, that the great Alleghany Ridge should diverge from our North Western limits Westwardly, until it should intersect the Western boundary of Louisiana, thence along that boundary until it reaches the Gulf of Mexico; and that it should again be extended with its spurs along our Northern boundary, until it reached the Atlantic; that the five plantation or cotton growing States, those Stales which are bearing, and are yet to bear, the brunt of the evils of a consolidated and an usurped Government, might be the SEA and MOUNTAIN girt States of the Confederacy. We want no military roads from North to South. If the roads will enable the North Carolina and Tennessee men to bring us their cotton, and their hogs, and their corn and bacon, I shall be satisfied. As to enemies, Europe has no motive, to meddle in any way with the plantation States. We are not its rivals in agriculture, trade, or manufactures. Now, that we are independent, Nature has bound us together in cords of perpetual friendship. We raise the raw material, and they manufacture it for us. It is the people of the NORTH, I fear. When their industry begins to languish from the competitors they have in Europe, they would involve us in their disputes, arising from competition, this prolific source of wars and contention, and they would make us the ASS that is to bear all the burden and expense of the contest. It must not — it cannot be endured.

The power to create a corporation, is not in the reported draft of the Constitution. It would have been a departure from the outline agreed upon. It was not in the enumerated powers of the Confederation. It was not a case of "general interest," nor was-it "a case of legislation to which the States were separately incompetent." So far from it, the States had always exercised this power; and who can say, that the exercise of such a power, by a State, is a case in which the harmony of the Union can be interrupted by State legislation. But there were not wanting efforts, to give to Congress this power, for on the 18th of August, a motion was made, to add to the enumerated powers, a power "to grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent." Another proposition was general, and made on the same day, '"to grant charters of incorporation." If the powers to establish a National Bank was not the design of these propositions, and seen through by the opponents of the measure, why were they introduced, and particularly the first. That corporation could be, for no other than a national purpose; to the creation of which, so as to answer all its purposes, "the authority of a single State would be incompetent." That is precisely the case of a National Bank. A State might create a Bank, and upon a most extensive scale as to capital; but a State could not direct that its notes should be received for taxes, or duties out of its own limits. No State could create a Bank to answer the exigencies of the General Government, as well as a Bank created under the authority of such a Government. The United States, upon an emergency, might restrain a Bank of its own creation from paying out specie. It might possess many advantages, of which it would be deprived, if confined to the use of a local Bank. Under this power to create corporations, might be in' eluded the erection of a great East-India or West-India Company,-or a Company to promote manufactures. But what was the fate of these propositions? They were referred to a committee, but never reported on favourably. On the 14th of September, when the Constitution had been revised, and almost ready for engrossing, the subject was again renewed by a motion to introduce amongst the enumerated powers, a power "to grant letters of incorporation for canals," &c. which motion was negatived, eight States to three.

Here we have a FACT, and an INFERENCE, which no ingenuity can put aside. The fact is, that a proposition was made to add to the enumerated powers of Congress, a power to create corporations for national purposes, which proposition was rejected. The inference is, that the Convention was opposed to a National Bank in any shape; for a National Bank is most prominent, amongst corporations for national purposes.

With such evidence as we have on this subject, it would be but a poor reply to say, that the Convention, like the Supreme Court, regarded a corporation as a means to an end, and not a substantive power — and that this consideration alone might have caused its rejection. The reasoning in my eleventh number forbids this idea. — What a solecism in politics, that an assemblage of the wisest men in the nation, should be giving away, by separate and express grants, little odds and ends of power, and that they should, at the same time, intend that powers ten times as great, should be used as means to other powers. A National Bank, with a capital of one hundred millions of dollars, is a means to "collect a tax," and a West India Company by charter, may also be means. The present British East India Company, I believe, keeps in pay 250,000 troops — decent means these, with a vengeance! This doctrine of a "means to an and" may be the doctrine of the Supreme Court, and of the Manufacturers at Washington, but it will as certainly be a means to the END OF OUR PROSPERITY in the South, as that the sparks will fly upwards.

The word Bank is not to be found in the journals of the Convention, nor in the secret debates. Canals, and military roads, and manufactures, universities and seminaries of knowledge, all were thought of: Even a power "to pass sumptuary laws" was not forgotten, but proposed — and yet no one proposed a Bank by that name. Can any one believe, that a National Bank was not as much in the minds of the members as a National University — doubtless it was. It was, designed to be concealed in the proposed power to create corporations — and the reason, probably, of its not being introduced more openly, was the conviction that such a proposition, would, with certainty, be rejected by the People, if not by the Convention. In the state of jealousy, which existed in the Convention, and out of doors, on the subject of the powers, which were to be conferred on the new Government, there is no saying, what the consequences would have been, had such an engine in the hands of government, as a National Bank was considered to be by the people at large, been added to their powers — As it was, such was the difference of opinion in the Convention, as to the extent of the powers of Congress, that at one time, in the language of Mr. Luther Martin, "they were for near two weeks, on the verge of dissolution, scarcely held together by the strength of an hair, though the public papers were announcing their extreme unanimity." Had the Convention not debated secretly, we never should have had the present government.

We are, however, wise beyond the Convention. We have discovered, by the keys furnished us by the Supreme Court – powers, which these men never dreamed of our possessing. There was a time, when Congress traced its steps on the ground of usurpation, with considerable caution. There is a remarkable instance of this in their usurped power in opening roads. When the first Act passed to open the great Cumberland Road, there was an express provision that on the surveys being completed, and the expence estimated, the President should not commence the work, without first obtaining the consent of the States through which the road was to pass. But, becoming bold by impunity, these folks now direct roads to be opened, and they have been opened under acts of Congress, in which there is no stipulation for the previous consent of the States. They open roads now without leave or license.

It might be gratifying, if we could compare the cost of the national roads and canals in the North, and to the South of the Potomac. But, after all, what are these roads and canals to us? What is it to us whether the Androscoggin and other streams be examined or not examined, with a view to a communication with the St. Lawrence? Will a market that shall thus be opened for some of the most valuable productions of the State of Maine benefit us? What is it to us whether the great Cumberland Road be kept in repair or not? — whether the Sandusky Turnpike, and the other Road Companies fail for want of funds or not? What is the Delaware and Chesapeake Canal Company to us, that the money of the Nation should be appropriated to aid that, and the many other schemes, for enriching the citizens of the North, at our expense. Has the Government subscribed to our SANTEE CANAL COMPANY? Think ye, that they will ever open a Canal from Winyaw Bay to Wando River, or aid a company for that purpose? Will they ever dig this Canal – a Canal, that, in time of war, would be so important? Do we hear of their extending our State Road through the Saluda Mountain, to the Western country, which will benefit five states? Is not this as much national, as the improvement of the navigation of the Ohio and Mississippi rivers? It is only the other day that the Governor of Boston asked the Secretary of War for the United States Engineers, to assist in surveying the Canal from Boston to the Hudson; but the answer is, they are all so busily employed, that they cannot be spared. Where are they employed? Are they in South-Carolina, or are they located North of the Potomac, or again on the Alleghany Ridge, for FURTHER DEFENSE AGAINST THE BRITISH? Why not augment them, to three or four brigades of Engineers, and thus empty the National Treasury into the laps of the Northerners"

We are not yet sufficiently fleeced. The GREAT SOUTHERN GOOSE will yet bear more PLUCKING.

NO. 14.

We do not find in the proceedings of the Convention, the word "Manufactures," or any motion relative to the encouragement of them, until the 18th of August. The Convention, having at that time, disposed of most of the clauses in the reported Constitution, as far as the end of the enumerated powers, many additional powers, were on that day proposed to be vested in Congress. Amongst them, was a Dower "to establish public institutions, rewards and immunities, for the promotion of AGRICULTURE, Commerce, Trades, and MANUFACTURES." On the 20th of August, another proposition was made, to wit, "that a Council of State should assist the President, to be composed of the Chief Justice, and five Secretaries, to wit, of State, War* &.c. The duty of the Secretary of DOMESTIC affairs, was, "to attend to matters of general police, the state of AGRICULTURE and MANUFACTURES, the opening of ROADS and NAVIGATION, (internal improvements) and the facilitating communications throughout the United States, and to recommend such measures and establishments, as might tend to promote such objects." I do not discover in the journals, any thing else relating to Manufactures, eo nomine, excepting the above. Both of the above propositions having failed, we might reasonably conclude, that the Convention, refused to give to Congress the power to promote Domestic Manufactures, as well as internal improvements. But it is not from the mere failure, to have these clauses inserted in the Constitution, that we would infer a clear and unequivocal intention, that to the States alone, were to be left the regulation of the different branches of internal industry. There are other considerations which establish the fact beyond doubt.

The above propositions, made on the 18th and 20th of August, it seems, were referred to the committee of detail, together with sundry others; some relating to public seminaries of learning; some to the unappropriated lands of the United States; some to the government of the new States to be created; some to authorize the President to hold landed property for the use of forts and magazines; and last, and not least, as, we shall hereafter see, was a proposition to restrain Congress from establishing a perpetual revenue under its taxing power. On the 22d of August, the committee made a short report, proposing, inter alia, that a seventeenth enumerated power, be added to the sixteenth clause, in these words, "and to provide, as may become necessary, from time to time, for the well managing and securing, the common property, and general interests and welfare of the United States, in such manner, as shall not interfere, with the governments of individual States, in matters which respect only their internal police, or for which their individual authority may be competent." Our readers may construe this report as they please, but one thing is clear, that under so general a power to provide for the general welfare, Manufactures could as well be promoted, as could any other act be done, for which there was no previous provision. This part of the report, however, was not acted upon, and on the 31st of August, we find, that all such reports as had been postponed, "and such parts of reports as had not been acted upon," were referred to a committee, to be composed of a member from each State. The next day, the 1st of September, this grand committee "reported partially" but did not touch the subject of science, trades, canals, or manufactures. On the 4th, the committee again "reported partially" but said nothing of manufactures. On the 5th, the committee "reported further and finally" recommending alterations and additions, in five instances. The last is, to insert this clause — "To promote the progress of SCIENCE and the USEFUL ARTS, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." I ought to have mentioned, that in their report of the previous day, to wit, of the 4th, this same committee did propose to add to the taxing power, these words: "to pay the debts, and to provide for the common defence and general welfare. It was necessary that they should make some report on this head, because many motions had been previously made, as will be seen hereafter, to restrain the taxing power, one of which was so rigorous, as to confine it to the debts and. the necessary expenses of •the United States. I hope to shew in my next, that these words were intended as a limitation, and not an enlargement of the appropriating power. The above clause, "to promote the progress of science and the useful arts," was, as I conceive, a report of the grand .committee against manufactures.

I am not conscious, that in any exposition of the Constitution, this clause has been relied on, as restraining the power of Congress, on the subject of Manufactures. In my view, it is very important. It is important, if considered in the abstract, but when taken in connection with the above proceedings of the Convention, I do regard k as conclusive.

And first, let us consider the clause as it stands in the Constitution. What does it amount to? It is a power to promote science and the useful arts. What are the useful arts? They are those arts or occupations, which are carried on, with a view to profit in contradistinction to such as are pursued for pleasure, which are called the liberal or polite arts. Are manufactures to be classed among the useful arts? Throughout the civilized world, Agriculture and Manufactures, stand at the head of the useful arts. All men must assent to this. Here then, is a clear power vested in Congress by the Constitution, to promote Agriculture and Manufactures. But is it a general, or limited power? It is a limited power. How is it limited? It is limited, inasmuch, as the mode by which these arts are to be encouraged, is not left to construction, but is expressed in words, which have a clear and a definite meaning. They shall promote the useful arts, BY securing to ingenious men patents for their inventions." Now, if a power to promote a specific object, by a prescribed mode, does not exclude, the power to promote it by a different, or other mode, there is no truth in the law maxim, " expressio unius est exclusio alterius." Let us familiarly illustrate this.

When the old Congress found itself inadequate to carry on the Government for the want of a direct legislation on the people, it repeatedly and earnestly solicited the States, at different times, for a power to raise a revenue by small imposts, to be limited in amount, as well as duration. Had an amendment been made to the Confederation, and a power been granted to that Congress, "to regulate commerce by the imposition of certain duties on West India produce, surely,no one could contend, that the words of the grant, would not exclude the power to regulate commerce, by duties on European goods, and by the various modes practised by the present Government, whose power over commerce is exclusive. ' So, a power to raise a revenue by a capitation or other direct tax, would certainly exclude the power to lay imposts, or to come at a revenue by any means, but a direct tax. In the clause before us, as in the instances just cited, the mode of expression is indubitably exclusive. Manufactures are to be encouraged, but they are to be promoted in one way only, to wit — by the reward of an exclusive right, to the use of a new machine or invention.

The grant of power in question, is, what lawyers would term an AFFIRMATIVE PREGNANT, that is, an affirmance of one thing, and a denial of another; an affirmance of the power of Congress, to promote the progress of science and the arts, by patents and copy rights, and a negation of their authority, to encourage them in any other way. There are in the Constitution, other articles of a nature allied to this. For instance — Congress shall have power "to define and punish felonies on the high seas." The power here given to define a felony at sea, implies an admission, that if such a power were not given, Congress would be excluded the use of the power altogether; and it further implies, that the power of defining felonies on land, solely and exclusively belongs to the States. There are, it is true, two cases in which it can define or punish felonies on land; but in these cases, there are two special grants of power, by two separate clauses in the Constitution. It can "provide for the punishment of counterfeiting its current coin and securities;" and it has "the power to declare the punishment of treason."

In the Constitution, will be found NEGATIVES PREGNANT, as well as affirmatives pregnant. The prohibition to the States laying any "duties on imports or exports," is one of this kind. The restriction which prevents them laying any "duty on tonnage," is another. The prohibition to their keeping troops or ships of war in a time of peace, is a third. The prohibition of any interference as to the slave trade, is a fourth. In all these cases, though the restrictions amount to a negation to do the particular acts mentioned, yet there is an affirmance of the authority of Congress in the last instance, to prohibit the slave trade after 1808; and in the first instances, of the States to lay a land tax, an excise, a 'stamp duty, or any other tax, (provided it be not an impost or export duty, or duty on tonnage); and there is the same authority to levy troops or equip frigates, during a period of war. In these positions,-we must all agree.

The clause for promoting manufactures by patents, is then clearly an affirmative pregnant. Under its peculiar mode of expression, it cannot be conceived, that the Convention could deem it necessary to give Congress the power to promote the arts by a particular mode, if it designed to give the liberty of adopting any, and all other modes, of effecting the same object. If the meaning was not, to exclude Congress from any general power of encouraging the arts and sciences, why mention the words at all. There certainly was no necessity for it. These words, are not to be found in any of the propositions, which were submitted on the subject of patents and copy-rights. One proposition was, "to secure to literary authors their copy-rights for a limited time." A second, "to grant patents for useful inventions." A third, "to secure to authors, exclusive rights for a certain time." It would, therefore, have been sufficient for every purpose, to have reported the amendment to read, "to secure for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries," leaving out the first part of the sentence "to promote the progress of science and the useful arts."

But the reason of the committee's using the words last mentioned, is manifest. Manufactures and the sciences had been talked of — various propositions in relation to them, were before the committee; and a previous committee, had reported a specific power, to provide for the general welfare, so as to reach these cases. The report was not acted upon, and the subject afterwards falling into the hands of the present committee, it became their duty to report for or against science and manufactures. They do report, and recommend a power for this purpose — not, however, by seminaries of learning — not by public institutions, rewards, or immunities, as proposed, but simply by encouraging inventions to facilitate labor — as well as literary works to augment the stock of human knowledge. To promote the arts and sciences, in this way, was to confer a benefit, not upon one portion, but upon every part of the Union. It is for the benefit of each, and therefore, to the advantage of all the States, that authors and ingenious mechanics, should receive in this way, the patronage of the Government: But to give premiums and pecuniary bounties, or to prohibit the export of any material of manufactures — or to restrict the great import trade, of which the Southern States, even at that day, were so jealous, was not the intention of the Convention; it did not choose to leave the question open, whether Congress should do what it is now doing, to wit — to restrict our trade by Tariff duties, almost amounting to prohibition. As the subject was before the Convention, the members of that body, took the opportunity to express themselves, that they were averse to any national encouragement of science or manufactures, except by patents or copy-rights. The clause speaks no other language.

That the friends of science in the Convention, considered this clause, as exclusive of any power to promote science in general — and, that they, moreover, could not afterwards seek for it, in the appropriating power "for the general welfare," would appear, by their solicitude upon the subject. On the 14th of September, as the Constitution was about to be finished and engrossed, the motion was renewed for the third time, to add a power, to establish an University, which motion was lost, six States to four, and one divided — there not being in the Convention, the same interest for manufactures, as there was for science — there being no calico printers or woollen weavers, occupying the benches of the Convention, as is the case in the present Congress; the Convention, in fact, being composed of men, more literary than they were avaricious, is probably the reason, why the manufacturers, like the University men, did not come again to the charge, and renew their propositions for manufactures. They, however, did not. They quietly submitted to that article in the Constitution, which limits the national protection, only to patents and copy-rights.

Three clear propositions result from what has been said: First — That there was an attempt made in Convention, to give Congress, i power to promote science, agriculture, and manufactures. Secondly — That a committee reported, a specific power for that purpose, to be added to those already enumerated — which report was not agreed to. And thirdly — That an express provision was made, to protect these objects, but only to a limited extent. These propositions being established, upon what grounds, can a general power over the subject of manufactures, be assumed? "Prohibitory" duties by Congress, was a word not mentioned in Convention. The only encouragement asked for, was, public rewards and immunities Had they proposed protection by prohibitory duties, the Southern States would have taken the alarm, and expressed the same desire for a positive limitation on the powers of Congress, as they did for the navigation interests of the Eastern States: a great manufacturing interest to rise up in the States, was in truth, not much thought of in those days. But the navigation interests of the Eastern people, were before their eyes. It was this growing interest in the Colonies, of which England was so jealous, and her restrictions on which, no doubt, contributed to the revolution, more than any other cause. These local interests we have seen, by a former number, the Southern States consented to be provided for, by a special compromise.

NO. 15.

It appears by the acts of the Convention, that though it was deemed unadvisable to entrust Congress with a power to promote any great local interest of particular States, yet, that it was considered, that there would be a manifest impropriety, in depriving any one State, which might choose to encourage its own Manufactures, of the means of doing so. The usual mode, by which Domestic Manufactures are encouraged, we all know, is by premiums, pecuniary bounties, and prohibitory duties; but all other modes are inexpedient and inefficient, when compared with prohibition. If Congress could not lay prohibitory duties, except for the general purposes of the Government, and the States could not impose them, to protect Manufactures, one great motive to the Union, would have been defeated, which was, that the States should not, as regarded their internal relation, or their power to regulate their own industry, be in a worse situation than before. Hence, it became necessary, that the States should not be deprived of the power of laying prohibitory duties for the convenience of their imports or exports, or for the purpose of protecting their own Manufactures. When, therefore, that clause in the Constitution came to be considered, which restricts the States from laying duties on imports or exports, the subject of Manufactures directly came into discussion.

As this clause originally stood in the reported draft of the Constitution, the restriction was, only as to imposts, not exports — "No State, without the consent of Congress, shall lay imposts or duties upon imports." By this partial restriction, each State still possessed the power, to encourage its own manufactures, by duties, to prohibit the exportation of its wool, or other raw material. On the 26th of August, a motion was made to expend the prohibition to exports, which was carried; six States to five, a bare majority. The discussion on this article, brought forth Luther Martin, the deputy from Maryland, who strenuously opposed the article in all its shapes; but he could not succeed. So determined was the Convention, that the power of the States, as to import and export duties, should not be concurrent with that of Congress, and that the General Government should exclusively possess this source of taxation, that instead of softening, it was disposed to make the prohibition more rigorous. On the same day, therefore, an additional restriction, was introduced into the clause, nine States to four, that even with the consent of Congress, imports and exports were not to be taxed by the States, but "for the use of the treasury of the United States." Thus stood the clause in the revised draft of the Constitution, presented to the Convention, on the 12th day of September, five days before its adjournment. On the 13th, an amendment was proposed and carried, "that no State should be restrained from imposing the usual duties on produce, exported from such State, to pay the charges of inspecting that produce." But, on the 15th, a substitute was moved, and after two other motions for amendment, the substitute was put aside, and the clause finally agreed to as follows: — "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State, on imports or exports, shall be for the 'Use of the Treasury of the United States, and all such laws, shall be subject to the revision and controul of the Congress."

Were an hundred men, to read this clause in the Constitution, I would venture to say, that ninety and nine for a while, would be ignorant of the true design of its introduction. The question, had over and over again occurred to my mind, what could the Convention intend? Mr. Hamilton, in his Federalist, is almost silent on the subject. His reason may be conjectured from what is to follow. That the framers of the Constitution, who disputed so much as to the phraseology of this clause, intended something more, than to give the States the power to impose trifling duties to execute their inspection laws for cotton, tobacco, &c. is too evident; because, independently of the power to lay duties for their inspection laws, which may be done, without the consent of Congress previously obtained, there is a clear and a distinct provision, that the States may, on applying for, and obtaining such consent, impose import and export duties for other purposes. What purposes can these be? Can it be, to give the States now and then, a chance of some little revenue. The clause itself, decidedly gives the answer. The produce of the duties, when laid, is to go into the National, and not into a State Treasury. Then, what does it mean? Abstractedly considered, it is inexplicable, and to me, and perhaps to others, would have remained so, had not the subject of domestic manufactures, come into discussion. The design of the clause is now at once » seen. A satisfactory explanation is instantly within our reach. It was inserted, for the purpose of enabling such States as were desirous of protecting their own manufactures, either by export duties on their raw materials, or by imposts on foreign fabrics introduced into their limits, TO DO SO, WITH THE CONSENT OF CONGRESS. No other solution is admissible. If this was not the intent of the provision, I defy the Supreme Court or any expositor to explain it. In any other view, it is an useless and a stupid clause of the Constitution.

It is, however, most fortunate for us, that the debates of the Convention, are at hand, to rescue us from further doubt, or difficulty en the point. Let us hear Mr. Martin, bitterly complaining to his own State of the total injustice, in his view, of this clause. "By this same section," says he, "every State is also prohibited from laying any imposts or duties on imports and exports, without the permission of the General Government. It was urged by us, that there might be cases, in which it would be proper, for the purpose of encouraging manufactures, to lay duties, to prohibit the exportation of raw materials; and even in addition to the duties laid by Congress, on imports for the sake of revenue, to lay a duty, to discourage the importation of particular articles into a State, or to enable the manufacturer here, to supply us on as good terms, as they could be obtained from a foreign market. But the most we could obtain, was, that this power MIGHT BE EXERCISED by the STATES with, and only with the consent of Congress, and subject to its control. And so anxious were they, to seize on every shilling of our money for the General Government, that they insisted, even the little revenue that might thus arise, should not be appropriated, to the use of the respective States where it was collected, but should be paid into the Treasury of the United States; and, accordingly, it is so determined." (Secret debates, page 7h) . Thus, we have all our. doubts dissipated as to this otherwise singular provision in the instrument; and thus too, we have a fresh instance of the wisdom of the Convention. A mode has been provided, by which, at any time, the people of any one State or number of States, may protect their manufactures, without charging the cost of such protection, to the neighbouring States. Indeed, if we reflect upon the previous acts of the Convention, we must confess, that it could not have done otherwise, than to make the provision referred to. To have confined the import and export duties, to be laid by the States, to the simple purpose of executing their inspection laws, would have been extreme injustice. Congress had previously been prohibited, from promoting manufactures, excepting by patents; and as Congress could not, for this purpose, lay a protecting or prohibitory duty, what would become of the States, desiring to encourage their manufactures-, if they also, in no event, could keep foreign fabrics out of their limits, if it was their policy so to do, in order to protect their own. Such a provision then was indispensable. And the qualification, put upon the restraint on the power of the States to lay imposts, was most judicious, both for the States and for Congress. As the clause stands, the manufacturing States, may, at any time, ask for the permission of Congress, to lay duties to protect their fabrics! But, they are properly excluded the power of imposing these duties at pleasure, and to take the Proceeds, as under the pretext of protecting their manufactures, they might collect a revenue, or otherwise interfere with the resources of the General Government. But there is an inference to be deduced from this clause which is irresistible — -and that is, that had the Convention believed, that in any of the enumerated powers, which it had immediately before conferred on Congress, there was included a general power to promote Manufactures, there never would have been held out to the States, that in any event, they could lay an import or export duty, except for the purpose of their inspection laws. On Mr. Martin's urging the necessity that might arise at a future day, for the States to protect their Manufactures — and that a power ought to be at hand for such an emergency, the prompt answer would have been, the General Government is already provided with the power — and the Convention would have erased from the clause the words, "without the consent of Congress," and thus have restricted the power to the' simple purposes of inspection. But the clause remaining with these words, I maintain, is conclusive to shew, that there was no idea, of any general power having been given to Congress, over Manufactures. — Nothing but a necessity, which could not have been avoided, could ever have induced the Convention, to consent to the States imposing, in any event, duties on imports; The members of the Convention were nearly unanimous on this point; they were uniformly opposed to any concurrence of authority respecting this fruitful source of revenue. It was early decided, that the ENTIRE Custom-House should belong to the Congress.

The course prescribed by the Constitution, for the protection of Manufactures, being thus plainly marked, Congress is the more inexcusable for usurping the power in question. If, after the duties, which, previous to 1816, had been laid for revenue, and which, at the same time, encouraged Manufactures, it was found that the infant Manufactures of any one State, stood in need of any further protection, the Legislature of that particular State, ought to have applied to Congress, for leave to impose, in all its ports, the same" duties on British goods, which are specified in the Tariffs of 1816, 1820, and 1824. To such an application, Congress might have assented, as the duties would still have been paid into the National Treasury; and I am certain, the Southern members of Congress in those three different years, would cheerfully have indulged these folks, and will still indulge them, with a protection in this way, as long as it will not too seriously affect the revenue. Whether Congress will now, or at any time hereafter, give up to the States the least atom of their power over imposts, I know not: But this I do know, that in refusing to give to the States, a chance now and then, of protecting their Manufactures in this way, (if the States choose to ask it,) Congress would not honestly execute the trust, reposed in it by the Constitution. — That, however, would not be our look out.

I am not ignorant, of the difficulty that would arise in getting the majority of the people of any one State, New-York for instance, to join in any such application; for, whilst such a scheme would suit the Manufacturers, it would interfere with other important interests: All persons in such a State, connected with commerce, such as merchants and traders, shipwrights, cordwainers, sail-makers, &.c. would be seriously injured. The importation of British goods into New-York would be diminished, on account of the high and double duties, and the Custom-Houses of Charleston, and other ports, where only the national duties were to be exacted, would be filled to overflowing, to say nothing of the ruinous effects upon the overgrown commerce of New-York, to be produced in various ways, and particularly by the British taxing their produce, and exempting ours. — But the manufacturers will say, what then are we to do? Are we to have no protection, except we pay for it on these terms'? The answer must be the same, as we would give to a man, who complains, that, whilst his neighbour, who carries on like himself,.the wholesale trade in dry goods, has always all the retailers of the city dealing with him, he is without a single applicant. For this case, there is no remedy, but to quit the employment, or to bear the disappointment. It would not be just to say to the retailers, that they are to buy where they buy dearest. But to cease with familiar illustrations, there certainly does arise from this view of the subject, a pos ion which is impregnable, to-wit: — If in any one State, or any number of States, in which there is a clamor for protection, there can be such a diversity of opinion or of interest, that the manufacturers, cannot in any one instance, (which I do firmly believe to be the case) succeed in a Legislative application to Congress, for leave to lay imposts, and thus to avail themselves of that article in the Constitution, expressly provided to enable such State or States, to protect their fabrics, it would incontestibly prove, that in such State or States, the MANUFACTURING interest is not the predominant, or PARAMOUNT interest. If it were paramount, its influence would prevail. If then, manufactures, be not a paramount interest in any one State, where there is a cry for protection, and the promotion of them, would injure other interests in such State, fully as important, A FORTIORI the promotion of manufactures, must injure in a greater degree, the interest of States, in which there are no manufacturers. It is only on the ground, of its being a general interest in the United States, that a National protection can he advocated and maintained. What is not a general, or a paramount interest in any one State of the Union, cannot, by any process of reasoning, be decided to be a general interest of the twenty-four States.

This provision of the Convention, to give the States an opportunity, of protecting their own manufactures, is in exact accordance with the immutable principles of justice. To suffer Massachusetts, for instance, to promote the success of her manufacturing establishments, by means of a National Tariff, would be neither more nor less, than to give to her, greater advantages, and greater power too, than she could have had, if she had not entered into the Union. If Massachusetts were to separate from the Union to-morrow, and were to decide, that manufactures was a general interest in the State, and ought to be promoted, what would be her course of policy? She would have to do, what all other nations have done before her. She would have to compel her citizens to wear the home made fabrics, by imposing high duties, so as to exclude the rival foreign articles. She could not think of demanding, that we in South-Carolina, who would be independent of her, should wear her fabrics, any more, than that England can demand of France, to use British manufactures. In England, the entire nation is enriched by manufactures, but who is it, that pays the cost and charges, by which the aggregate of British wealth, and prosperity is attained? Do not the English themselves, pay for these great advantages of protection? Upon what principle, is it then, that under a Government, which is not a consolidated one, but a confederacy of States, the Eastern man should riot only have the protection, but have it without scarcely any cost to himself. What State is there, that would not rapidly acquire riches, if it could thus lay its neighbours under contribution, to support its various branches of internal industry. If Massachusetts then, will have manufactures, Massachusetts must be content to have them upon the usual terms. Her own citizens must pay the cost, whether it be, directly, by taxes for premiums, or pecuniary bounties, or indirectly, by a tax upon consumption of the home fabric. To suffer any other mode of encouragement, would be, to violate the Constitution, and to license a system of ROBBERY upon the South. If Massachusetts, is not content, to have the full power, to adopt the same measures, which she could take, were she sovereign and independent of the whole world, she has no right to complain. She must not be permitted to tax her neighbours. The interest she desires to have promoted at the expense of the nation, is a LOCAL interest, not half so important, as the Cotton Planting interest of the South, in which there is a far greater capital embarked, than there is in manufactures. Congress cannot promote, the great Cotton Planting interest of South-Carolina, nor can it encourage the manufacturing interest of the North. And why? — Because these are local interests of the States, and not the general interests of the Union. Congress can lay its imposts for revenue, and if in laying these imposts for revenue, it can at the same time encourage this, or that branch of local or internal Industry, giving at one time a little advantage to the Sugar Planters of Louisiana, and at another time, aiding the manufacturers of the North, there is no harm in this. As the impost must be laid far revenue, there is no tax here imposed upon one section of the Union, more than upon another. On this principle, manufactures were judiciously encouraged, till 1812, inclusive. Commerce, thereby, was, not shackled or interrupted. But, since 1812, all the Tariffs haves been gross usurpations of power by Congress.

NO. 16.

I proceed to say something on the subject of those general phrases in the Constitution, which constitute in the hands of the General Government, the great Lever by which the State Sovereignties are ultimately to be subverted from their foundations. Congress it seems, has power "to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States." It is from these words, "general welfare," that a power is claimed to open navigation between the States, to dig canals, to construct roads, and from time, to impose Tariffs, to the extent of a total prohibition of the valuable commerce of the Southern States. It is under cover of these words that the Colonization Society, with Judge Washington at its head, with the sanction of some State Legislatures, and with the prayers of many Societies and Conventions, is to march to the Capitol in December next, and to demand the aid of the Government for our flourishing and favorite Negro Colony at Liberia. It is under these same words, as the present President contends, that Congress can adopt any measure whatever, which it shall judge necessary to promote the general welfare. And also under this exposition is it, that the ultra fanatics and abolitionists of the North contend, that Congress can alter, whenever it pleases, the whole domestic policy of South-Carolina.

In this view of the subject, these words "general welfare" are becoming every day more and more important to the folks, who are now so peaceably raising their cotton and rice, between the Little Pedee and the Savannah. The question, it must be recollected, is not simply, whether we are to have a foreign commerce. It is not whether we are to have splendid national works, in which we have no interest, executed chiefly at our cost, and with a view to circulate money in the North. It is not whether we are to be taxed without end, It is not whether we are to have our Northern brethren, as our task masters, and to make bricks for them without straw. But the still more interesting question is, whether the institutions of our forefathers, those institutions under which we have been born, and under which all of us, bondmen as well as free, have enjoyed in the whole, as much of happiness as generally falls to the lot of any one nation on earth, are to be preserved according to ancient usage, free from the rude hands of innovators and enthusiasts, and from the molestation or interference of any legislative power on earth but our own? Or whether, like the weak, the dependant, and the unfortunate colonists of the West-Indies, we are to drag on a miserable state of political existence, constantly vibrating between our hopes and our fears, as to what a Congress may do towards us, without any accurate knowledge of our probable fate, and without a hope of successful resistance?

This, my fellow-citizens, is an awful question, but awful as it is, it is a question on which, sooner or later, we must all pass a final judgment — We deceive ourselves if we think, that there can be any evasion. The time advances and advances apace, when we must either be content to go as supplicants, and prostrate ourselves before the Councils of the nation, soliciting their forbearance and their mercy, or we must there appear as freemen, demanding a recognition of our rights, with a firm and an unalterable resolution to maintain them. There is no middle course: —

Let us examine the grounds upon which the enemies of the republic would impoverish and destroy our happy country. As far as manufactures are implicated, it is immaterial what construction is given to the words "general welfare;" for, if I am correct in the position I took in the two preceding numbers, that Congress is prohibited from giving any protection excepting by patents for new inventions, the power, of course, cannot be claimed under this clause.

No clause in the Constitution, in my view, has been more perverted in its meaning than this. But it is not surprising. When the Supreme Court of the United States solemnly adjudges that the power given to Congress to pass the "necessary and proper laws," to execute its enumerated powers, is an enlargement, and not a limitation of those powers, (the contrary of which. I have demonstrated to be the fact, from the journals of the Convention,) is it to be wondered, that the same mistake, should occur in the interpretation of the clause in question? The term "general welfare," I contend, was inserted in this clause, to confine the appropriating power of Congress to the enumerated objects. Should I fail in my proof, I hope I shall have given as good reasons for my constructions, as those on the opposite side, can for theirs. If I adduce facts, which even render the interpretation either way, as not conclusive, I shall have rendered some service to my country. South-Carolina is not to pay tribute money, or have her domestics insubordinate, under a disputed, and doubtful construction of the Constitution.

When the draft of the Constitution was reported to the Convention, on; the 6th of August, it was generally understood, as being in conformity with the outlines agreed upon in the amended resolutions of Mr. Randolph. If the committee did deviate, from the letter or spirit of the outlines so. given, it could only be, from misconception of their instructions. It does not, however, appear, that they did in any one instance, misunderstand them. In their enumeration of powers, they were, by their instructions, to provide inter alia, a special power for every subject of general interest They did so as well as they could. What escaped their notice, was afterwards provided for, by additional enumerated powers. That this committee ever intended, that the legislation of Congress should extend over any subject, which was not particularly provided for in their enumeration of powers, is contradicted by the important fact, that they used, in their reported draft, no general phrases, under which might be concealed a single latent power. The words "common defence," or "general welfare," or any words of similar import, are not to be found in any part of the reported draft of the Constitution, not even in its preamble; and it appears further, that those words are not, up to that date, in any part of the journals, neither in Mr. Pinckney's draft, nor in Mr. Randolph's resolutions. In the Constitution reported by the committee of detail, the taxing clause stood thus: "The Legislature of the United States, shall have the power to lay and collect taxes, duties, imposts and excises." In Mr. Pinckney's draft, referred to the committee, the words are the same.

When this clause, on the l6th of August, was in its turn, called up for consideration, a motion was made for a proviso "to restrain Congress from taxing the exports of a State." The consideration of the proviso was postponed, almost unanimously. It was an unnecessary amendment, because there was already amongst the limitations on the power of Congress, the same provision. Be this as it may, we may presume, that the clause required consideration, and that this may have been one reason for its postponement On the 18th, we find this motion, "that a' clause or clauses be prepared to restrain the Legislature of the United States, from establishing a perpetual revenue," the meaning of which I understand to be, that no money should be raised by taxes, unless it should be needed for the common purposes of the government. Here then we perceive, an intention to limit, and not to extend the appropriating power of the government. The committee, to whom this proposition was referred, must have understood, that there was a disposition in the Convention, to limit the appropriating power, for on the 22d, they report, that the clause should read — to lay taxes, &c. for the payment of the debts, and necessary expenses of the United States, provided, that no law for raising any branch of revenue, except it be specially appropriated for the payment of interest on debts, or loans, shall continue in force more than years." This limitation of the committee, it is true, was not finally agreed to; but I introduce it to shew, that there was a jealousy in the Convention, as to the power of raising taxes, without specifying the purposes, for which they were intended. It was to guard against useless taxation, which might be followed by waste and extravagance in the public expenditure.

Between the time, however, that the taxing clause was first called up for consideration, to wit, on the J 6th, and the time the committee of detail reported as above, on the 22d, Mr. Rutledge, the chairman of that committee, had moved, that "Congress should consider the necessity, and expediency of the debts of the several States, being assumed by Congress," and a committee of eleven was appointed for this purpose. This committee of eleven had reported on the 21st, "that the Legislature shall have power to fulfil the engagements, which had been entered into by Congress, and to discharge as well the debts of the United States, as the debts incurred by the several States during the late war, for the common defence and general welfare," This is the first time (the 21st of August) that the words "common defence and general welfare," appear on the journals of the Conventions; and no doubt it was this report, as to a provision for the public debt, which caused the other committee, in their reports on the 22d, to which we have just referred, to propose to add to the taxing clause the words, "to pay the debts and necessary expenses of the United States," &c. In this same report, on the 22d of August, was the specif c power proposed, as a seventeenth enumerated power, (alluded to in a preceding number) to enable Congress to provide for the general welfare, &c. which report I considered as made in favour of manufactures, but was never agreed to. This is the second time (the 22d) that the words "general welfare," are mentioned. On the 23d, when the taxing power was again called up, a motion was made to amend it, so as to read, "The Legislature shall fulfil the engagements, and discharge the debts of the United States, and shall have the power to lay and collect taxes, duties, imposts and excises." This motion was carried. On the 25ih it was reconsidered, and a motion was made to amend it by saying, "for the payment of the debts, and for defraying the expenses that shall be incurred for the common defence and general welfare;" which motion was lost. Thus the limitation voted for on the 23d remained. But on the 4th, the committee made a report, and amongst other things recommended that the clause should read, "to pay the debts and provide for the common defence and general welfare of the United States;" and it was thus finally agreed to.

If there be one inference clearer than another, from the foregoing statement of facts, it is, that there existed in the Convention a clear intention, not to suffer the appropriating power of the government, to remain subject to the possibly perverted construction, that it was to be indefinite as to Purpose, as well as illimitable as to amount. Let us recapitulate: The amendment of the 18th was a limitation on the power to tax unnecessarily. It was to provide against raising a revenue which might not be needed. The proposition of the 22d was a severe limitation as to purpose, confining the appropriation to necessary expenses. In that of the 23d, the purpose is first expressed, to wit, "to fulfil the engagements and discharge the debts;" and then follows the power to tax. Here was a clear limitation again us to purposes. On the 25th, the taxes are to be laid to pay "the expenses that shall be incurred for the common defence and general welfare." This again is a limitation as to purpose.

If such of the proposed amendments as limit the appropriating power as to its purposes, be attentively considered, it will be seen, that they are all more or less objectionable, and therefore were properly rejected by the Convention. For instance — 1st. To confine the appropriation to the “necessary expenses" of the government, would be too rigorous. Every government must have some latitude of discretion, as to its expenditures for its enumerated, or legitimate objects. 2ndly. To have limited the expenditure to the "engagements and debts of the United States," would have excluded the debts of the old Confederation, and the assumption of the debts of the individual States. There existed moreover, another objection to this phraseology; The taxes here, are made the means of executing this particular power, whereas the taxing power must be the great means of executing all the powers. 3dly. To have limited the appropriation to the "expenses that shall be incurred for the common defence and general welfare," might possibly imply a doubt, whether Congress ought to lay its taxes prematurely, or before the wants of the Government should be ascertained. These last, are the words in the old Confederation. I do not recollect what the practice was in the old Congress — but I do suspect, that the States were never called upon for their supplies in money, or in flour, &c. until the expenses were ascertained, and the quota of each State adjusted. However, be the objection to this last amendment what I have stated or not, we must all agree, that if the words, now used in the Article, be words, shewing the restrictive sense of the Convention, as to the construction of the appropriating power, the clause is better expressed than it would have been, under any of the amendments. As it now reads, it gives Congress the necessary power to lay its taxes at its pleasure, by anticipation or otherwise — but judiciously confines the proceeds, to the general purposes, for which the Government was established, the public debt being provided for, by a separate article.

Those who reject this rational construction, that the words "general welfare" were intended to restrict the appropriating power of Congress, to the enumerated objects, will find themselves reduced to the awkward dilemma, of maintaining a very absurd position, to wit — that when a power is given to raise money, without any expression of limits, as to amount, or as to purpose, it is an augmentation of such a power, as soon as the purposes of the appropriation are expressed. The case before us is precisely of this kind. — Mr. Pinckney proposed, by his draft, to give Congress a power "to raise taxes, duties, impost and excises." The Committee report a similar power — This power, though apparently illimitable, as to purpose or amount, was not so in fact. Under a general power to raise taxes, Congress can no more appropriate money, to any purpose foreign to the wants of the Government, than any trustee who has an unlimited power to raise money by loans or otherwise, can legally appropriate the money when borrowed, to any other than the purposes of the trust which are expressed in the deed which confers the money-raising power.

But, let us give the opposite argument every advantage. — Here is a power reported by the Committee, which is indefinite every way. It must occur to every mind, that to make any addition to a power to raise money, which already is so expressed, as possibly to be construed to be unlimited as to the purpose, as well as to the amount of the appropriation, is in fact to limit that power. That which apparently is already unlimited, needs no additional words to strengthen it; every amendment is likely to weaken it considerably. The history of the clause in question, shews this to be the case. In all the trials to which it was exposed, it was always weakened — sometimes more, sometimes less, according to the proposed amendments. As the clause originally stood, who can doubt, but that Congress might, under its phraseology, have pretended to more power than it now claims — though, substantially, there is no difference between the two clauses. Under such an unlimited power as the words convey, the vote for the relief of the distressed emigrants from St. Domingo, and that of 100,000 dollars to the inhabitants of Carracas, might have been said to be justified. When this appropriation was voted, it was unconstitutional, because it was not for the general welfare of the citizens of the United States, to which the restriction confines the appropriations of the Government. Under the clause too, as it originally stood, a million of dollars might, under some colour of authority, be given to the Greeks; as much more to the South-American Patriots; millions might be voted to extend Christianity in heathen countries, or to civilize that quarter of the globe which is becoming so very interesting to an American Congress — the continent of Africa. But who would now contend, that we could give money to the Greeks, or to the South-American Patriots. And how is it, that we cannot be thus generous, when there is no express prohibition in the Constitution — The answer is a plain one. It is the additional words "general welfare" to the original clause. If then it is the amendment to the original taxing clause, that prevents Congress from now doing, what it might have had a pretext to do, before such an amendment was made — that amendment, must of necessity be a limitation on the appropriating power. It is the limitation as to the purposes of appropriation, which the words "general welfare" have affixed to a power, which, from its phraseology, might have been assumed to be unlimited, that restricts Congress to such appropriations only as can be referred to the common defence and general welfare of the States. If, then, the words constitute a limitation in this sense, they cannot enlarge the appropriating power. What is intended as, and operates as a limitation, cannot be construed into an additional or a new power.

The words "general welfare," were in truth added to the clause, not because the members of the Convention believed, that, without such a clause, the money appropriating power would in strictness and in truth, be without limits as to the purposes for which money might be voted away. They could not have thought so, for there were amongst them too many sound lawyers. They could not believe, that the words conferred a right to give away money except for national purposes. The words were inserted, ex abundante cautela. The same extreme caution here prevailed, which influenced them to give a power to Congress to pass the necessary laws to execute its powers, and which also induced them to give as substantive powers, those which were incidental to the execution of other powers. There was a fear, that the clause would be liable to misconstruction, if some words were not added to it, to shew the restricted sense in which they would have it considered. The journals of the Convention decidedly shew this. Had these words not been inserted, to a certainty, large sums of money, or frigates, would have been voted to the Greeks a few years ago, when there was such an enthusiasm on the subject amongst the influential members of Congress. And, to a certainty also, pecuniary bounties and premiums would, ere this, have been voted away by Congress, to encourage agriculture, trade, and manufactures; and even money might have been voted for State purposes. As the clause now stands, no appropriation can be justified, excepting it be for the national objects included in the enumeration of powers.

NO. 17.

Mr. M'duffie, who, in his exposition, of the general phrases in the Constitution, agrees with Alexander Hamilton, and who, in the debate in 1824, has gone so very far in his ideas, of the power of the Government, as to internal improvements, seemed to regard it as a matter of considerable triumph, when some of his adversaries iii the debate, had incautiously contended for a principle, which I agree could not be maintained, and which I regret was ever advocated. — He thanked them for the admission, that the words, "general welfare," were intended to limit a power, which, otherwise, would have been illimitable without them, because he thought, it led to the irresistible conclusion, that the discretion of the National Legislature was not to be restricted within any bounds, short of the "common defence and general welfare."

Mr. M'duffie's argument in support of this doctrine, is so excessively refined, that it is always unsafe for an antagonist,who is not his compeer in metaphysics, to enter the field of controversy with him. The danger is, that he may be blown "sky high," from the ground that he occupies. Like the Chief Justice of the United States, he so states his propositions, that they seem to be almost self-evident. In an instant, our previous impressions vanish, and for a while, we acquiesce, without knowing why or wherefore, in doctrines, which our mature judgment had always regarded as unsound. The promptness too, with which Mr. M'duffie seizes an advantage, incautiously given him by his adversary, and the dexterity with which he manages his subsequent movements, is most remarkable. It is the novelty of his plan of attack, and the boldness with which he pushes forward his game, that gives him his superiority in debate. His speech on internal improvements, is a master piece of the powers of reasoning. It is by far the greatest effort which was made in Congress, during that discussion, and, it therefore is not surprising, that this speech should have been so long considered, as settling the question in favour of the power of Congress to appropriate money for roads and canals. But Mr. M'duffie's doctrines, like those of the Supreme Court, have been orthodox, because they never have been thoroughly examined. They were promulgated at a period, when it was deemed a kind of heresy, not to fall into the general views of our politicians at Washington, as to the character which our Government ought to assume. It was to encourage a selfish and sectional feeling, to think of differing from men, who, so far from recollecting, that the General Government was designed to be a Government altogether external in its operations, conceived the enlarged and brilliant scheme, of making it a most splendid edifice, within and without, as calculated to attract notice from its ornaments, as well as its utility.

Had Mr. M'duffie's antagonists joined issue with him on proper pleadings, they might have insured for themselves a successful competition: but, as it was, they were the weak in the hands of the strong. They did not meet him on the true Battle-ground, or they might have wounded this Achilles in the debate, in more places than one. The campaign was badly conducted, both by his friends and his adversaries. Whilst his colleague, Mr. Clay, was employed in contending, that the power over Internal Improvements, might justly be referred to the power "of regulating commerce," and Mr. M'lane supported the construction, that to "facilitate" commerce, was substantially to regulate it: Whilst some would deduce the power in question, as a consequence from the right to make war, and others, from the "right to establish Post Roads;" whilst in fact, all his colleagues were contending, that Congress could make roads, and exercise its sovereignty in this way legitimately, and whilst they were all occupying positions, from which they could easily be dislodged: Mr. Archer, from Virginia, on the other side, instead of contending for the position taken in the preceding number, that the words "common defence and general welfare," were declaratory, and inserted from extreme caution, rather to shew the restrictive sense in which the Convention would have the taxing power considered, than from any doubt, that in fairness, any power could be claimed to appropriate money, except for the enumerated objects, most unfortunately admits, that if the words had been omitted, the taxing power would have been unlimited in every way. — , The eagle eye of Mr. M'duffie, who, ere this, had not made a single movement to the right or to the left, perceives the opening in the enemy's line, and it is at this critical moment, that he advances with the whole force of his mighty intellect, and occupies a new position, only hinted at by his prototype, Alexander Hamilton, presenting himself in such views, as to strike his friends and his adversaries with amazement, and with consternation. "As the power under consideration, would have had no limit without the words "common. defence and general welfare," it results of necessity" says Mr. M'duffie, "that we must look to these words alone, for the limitation " — He therefore sets out with the proposition, that the discretion of the Legislature is within its bounds, as long as its appropriations are for the general welfare; and, that lie may not be in the difficulties of his colleagues, who, if they should fail to refer the exercise of sovereign power contended tor, to some or other of the enumerated objects, must surrender at discretion, he carefully disclaims all pretensions to construct roads and canals, as an exercise of sovereignty: As a sovereign power, he considers the appropriating power as ending in itself. When the money is raised and appropriated, sovereignty, he says, ceases; and whatever else is to be effected, if it cannot be done by the agency of money merely, it cannot be done at all. If the aid of any sovereign power be at all necessary, to effect the object to which the money is to be applied, he admits, that in such case, the appropriation cannot be made, without such power is found amongst the enumerated objects.

Mr. M'duffie accordingly maintains, that the spending of the money, after it is appropriated by law, even if it be an hundred million of dollars, on roads to be opened with the consent of States, is no more an act of sovereignty, than the purchase of a horse, for a messenger of either house of Congress, would be an act of sovereignty, or the making of a road through a State by an individual, with the consent of the Legislature, would make that individual a sovereign.

Now, to a man of plain sense, it would seem to be a matter of some consequence, as between a State and the United States, that when Congress opens a road through such a State, with its consent, it does not thereby exercise sovereignty, in that particular State, be' cause no State would permit its sovereignty to be interfered with; but really and truly, to the people of the United States at large, it can make no difference, if a hundred million of dollars is to be expended, whether the expenditure of this vast treasure on roads, is, technically speaking, an act of sovereignty or not, because, if the appropriation can be constitutionally made, the money must come out of their pockets, if it be forthcoming at all. But to spend a hundred millions, under a power to appropriate it for the very purpose for which it is actually expended, is, at any rate, to posses? a prodigious influence, even if it be not sovereignty. Mr. M'duffie's mode of stating the question, is therefore, most imposing; and those who desire to combat him on the ground of metaphysics, or who would not yield to him this position, that to effect any object, however important, by money merely, even if it be an hundred millions, is not to exercise sovereignty, must expect to be hors du combat. We must meet him then on other grounds.

Let us say, that he is correct, that to give a million of dollars towards a canal in a State, and with the consent of its Legislature, is not an exercise of sovereign power; and let us further admit his grand position, that the appropriating power has no limits, but the common defence and general welfare. There is yet more than one sophism in his entire argument. The first sophism consists in his supposing, that an unlimited power to raise money for the general welfare, is honestly executed, if the money be applied to the purposes of the Government, and not to local or State purposes. The only answer to this argument which I have met with, is that given by Mr. Legare, in his speech on Mr, Prioleau's resolutions, in our State Legislature, in 1825. Mr. Legare demonstrates, that a Government of limited powers, has no greater right to divert the funds of the Government, beyond the enumerated objects, because it has an unlimited power to appropriate for the general welfare, than a trustee who has an unlimited power by deed, to raise money on the trust estate, can divert those funds to any other purposes of the estate, than are expressed in the different trusts. Every lawyer knows, that a trustee may, under a general power, in a trust deed for that purpose, sell part of the trust estate, and he may apply the proceeds, to purposes which he may deem generally beneficial to the estate. Id such a case, though the legality of the sale, and the appropriations could not be disturbed, yet, in equity, the trustee would be adjudged to have departed from his duty, as having abused the trust, and would be compelled to refund. So is it with the Government of the United States. It, is a Government of sovereign, but of limited powers. These powers are conferred on it, to enable it to perform certain trusts. These trusts are defined with the utmost precision, in an instrument called the Constitution, but which is neither more nor less, than the great Trust Deed between the States and the United States. The General Government then, is a trustee, and the power which it receives from the States, is a power coupled with a trust. Would any lawyer say, that in construing the power of the Government, unaided by other lights to guide us, all the rules for construing powers, coupled with a trust, should be put aside; those rules, which are not merely the rules of common law, but of common sense. I should hope not. Is it reconcileable with common sense, that a power given by deed, by A to B. to mortgage the estate, and to apply the proceeds to the purposes of the trust estate, could authorize the appropriation to purposes, not specified or referable to any of the numerous, trusts, with which the deed may abound. I should say not. Then, upon what principle, can a Government, instituted to effect certain national objects, which are clearly defined, appropriate the general means, placed in its hands, for a purpose, which it is admitted on the opposite side, has no relation to any of those objects. Such a Government may think proper to assume the principle, that the Government being National, it may effect objects which are National, though not enumerated. What is this but to say, that when the Convention precisely defined the purposes, for which we should be National, the Congress shall undertake to say, we shall also be National for other purposes.

To tax the people, that money may be appropriated beyond the enumerated objects, is a constitutional exercise of power, because the taxing power is unlimited. So is the sale of part of the estate by a trustee legal, because a power is given for that purpose. ln either case, the money once appropriated, must remain so appropriated. But equity will adjudge the misapplication of the money, as an illegal act. It is an abuse of the trust. It would be no answer in Mr. M'duffie, to repeat what he has already said, "that construe the Constitution as we will, our principal security must depend upon the discretion of Congress, and that we are not more exposed, by Congress appropriating its money at its discretion, under the taxing power, than if it were wastefully expended, with reference to any of the enumerated objects, where the discretion is admitted to be unlimited." The difference, however, is essential. A wasteful expenditure of money, in building fortifications, and raising armies and navies, when there may be no need of them, is not an unconstitutional act, any more than it is an illegal act, for a trustee, who is. appointed to take care of an infant, to allow him so liberally, as to enable him to run through his estate, and to come to ruin before he comes of age. In these cases, there is no relief, because it is money expended upon the objects of the trust, under an unlimited discretion so to do. The manner of executing the trust, is here matter of discretion. But very different is the case, where the discretion claimed to be exercised, is not as to the quantity of money, which is to be applied to a specific purpose, demanding such an application of money, but to the purpose itself of the application.

Congress cannot promote objects which are not enumerated, even where money alone can effect them. It is repugnant to the whole plan and spirit of the Constitution Is there no distinction between a discretion as to the quantity of means, or money, necessary to execute a particular trust, and a discretion as to the subject or trust, upon which money is to operate? The distinction, in my mind, is most manifest. The Constitution affords many examples of the one, but it furnishes none of the other. For instance, Congress can raise money to any amount, by taxes or by loans, whether the public exigencies require it or not. It can, in time of peace, as well as of war, raise troops, and build and equip frigates, without number. — It can coin money without end. — It can appoint seven or seventy Judges of the Supreme Court. — It may ordain and establish a hundred new inferior tribunals of Justice. All this Congress can do. But in doing all these things, it is still strictly within its own sphere. It may do wrong, but it does so at the expense of the people at large, considered as its constituents. It cannot possibly impinge upon, or interfere with, or affect in any manner, the sovereignty or concerns of the States, either directly or indirectly. Not only its powers are exercised within due bounds, and directed to their proper objects, but its influence too. Members of Congress are not forming schemes and projects to meddle with the concerns, and disturb the peace of their neighbours, indirectly, when they dare not do so directly. In short, the General Government, in thus exercising its discretion, remains what it was created for, and does not become a pragmatical, offensive, and dangerous power, the object of alarm and jealousy to the States. Its discretion is the only rule of its conduct. Such a discretion is indispensable to it, and it has it by the terms of the grant. But who can point to any clause in the Constitution, which gives the least discretion whatever, as to the SUBJECT, upon which the national legislation is to operate. The bare idea of the Government, being a Government of limited powers of legislation, one would suppose, would be a sufficient discouragement to any one, from undertaking so arduous a task. If we look at the instrument, the objects or subjects of legislation, are all enumerated. The very specification of the objects, on which the legislative power is to operate, ex vi termini, excludes the idea of discretion, as to any object, not included in such specification. If there is to be discretion, the very object of the enumeration is defeated. It was wisely ordained by the Convention, that the subjects for the legislative powers of Congress, should be fixed and settled, and that there should be no discretion in Congress, as to what subjects it should, or should not legislate on. For what is discretion? According to the opinion of one of the greatest men, who ever sat on the English Bench, "Discretion is the law of TYRANTS." In the best of men, it is sometimes folly, oftentimes caprice. In the worst, it is every vice and crime, of which human nature is capable."

But our Achilles must not be permitted to drag us along in triumph, as he would a vanquished Hector, by saying, that amongst the specified subjects for legislation, there is one, to wit, the appropriating power, in which, from its peculiar phraseology, a discretion as to the objects, (as well as to the amount) is implied, for that would he to say, that whilst the whole instrument clearly manifests a design, and studiously perfects a scheme, to exclude all subjects for legislation, which are not particularly specified, giving to Congress the few defined, and reserving to the State the numerous undefined powers of legislation, yet, that by certain doubtful and indefinite general phrases, the like of which, are to be found in the most common power of attorney, a power of appropriating money shall be claimed by implication, which, in its exercise, shall embrace almost every object of human legislation. What is this, but to say, in the language of Mr. Legare, "that whilst all other means, necessary and proper for executing the enumerated powers of the Government, are limited by the nature of those powers, the levying and disposing of money, the UNIVERSAL means, is to be restrained by no other condition, than that it should not be thrown into the sea, or bestowed on individuals who have no claim on the public."

Let us now show where the fallacy of this part of Mr. M'duffie's argument consists.

NO. 18.

The fallacy of Mr. M'Duffie's argument in this particular, lies, in his supposing, that the promotion of the "common defence and general welfare" by money merely, is the end for which the whole first clause was inserted. If there was no discretion, he thinks, in Congress, as to the appropriation of its revenues beyond the specific powers, "there would have been no necessity for an express delegation of power, to raise and appropriate money; because every one of the enumerated powers would carry with it as an incident, the power of appropriating the money necessary to its execution," and that, adds he, "can hardly be a just construction which would thus convert the leading clause of the Constitution, into mere surplusage."

In this last position, we perfectly coincide. The construction, which would cause any one of the enumerated powers in the instrument to be mere surplusage, I agree, must be faulty. It is precisely on this principle of reasoning, that I have protested against the decision of the Supreme Court in M'Culloch vs. The State of Maryland; for I have shewn, in my eleventh number, that not one, but nearly a dozen of clauses in the Constitution, must be rank surplusage, if the position taken by the Court in that case, be a sound one.

But whilst we so perfectly agree in a joint protestation against a rule of interpretation so unsound, yet I must now turn aside, and separately protest against our own statesman, for the unsound inference which he has drawn, to wit, that had the intention been, to limit the appropriations within the enumerated powers, the necessity of an express delegation of power to raise money, would have been superseded. With such an interference as"this, it is not be wondered, that Mr. M'duffie should fall into a snare. Mr. M'duffie is now to be informed, that so far from the general power to tax, being inserted for the special purpose of enabling Congress to appropriate its revenues beyond the enumerated objects, the clause stood at the head of the enumerated powers in Mr. Pinckney's draft, submitted to the Convention as soon as it was organized for business, and it stood also in the reported draft of the Constitution, long before the general phrases were thought of or suggested. The words "common defence and general welfare" were not added as an amendment to the clause, until the 4th of September; and then, as I already have stated in my sixteenth number, with a view to express, the sense of the Convention, that the appropriating power was to be limited to the enumerated objects. The taxing clause, was a clause, which the Convention would have retained above all other clauses in the instrument, and under every variety of aspect, of which its intentions might possibly be supposed to be susceptible. The taxing power was the principle, which was to give life, and health, and vigour to the new Government. It was the want of this vital principle, which caused the old Congress to possess an huge, but yet an useless mass of powers. The idea is perfectly inadmissible in any shape, that the Convention, with so much experience before its eyes, of the embarrassments which had been felt, for the want of this active and living power to sustain the fabric of the Confederation, would have omitted to provide by an express grant, for the most paramount of all the powers which can be conferred by a people on its rulers, and have left the new Government to claim the money raising power, by implication of law.

There is yet another reason, why in the enumeration of powers, such a clause could not be dispensed with — The States were about to part with a considerable portion of their sovereignty, and confer it on a Government, which, for certain purposes, was designed to be supreme. To avoid a clashing, or repugnance of authority in laying and collecting their respective revenues, it was most essential to state the subjects of taxation over which the General Government should possess authority. The taxing power, therefore, became of the utmost consequence; it was a subject which was uppermost in the minds of the members — and it was a subject too, which did not admit of very easy arrangement. The Convention had to choose between two modes; one of which was, to separate the subjects of taxation, so as to give some to the Union, and the remainder to the States; whilst the other plan proposed, was not to separate the objects of Revenue, but to give the States concurrent jurisdiction, in general, in the article of taxation. Mr. Hamilton in his Federalist (No. 35) justifies the position finally taken by the Convention, "that a Concurrent jurisdiction in the article of taxation, was the only admissible substitute, for an entire subordination, in respect to this branch of power, of State authority to that of the Union."

We now perceive the indispensable necessity of the taxing clause, a clause so judiciously constructed, that whilst under its phraseology, no exclusive grant of sovereignty over subjects of revenue can possibly be claimed by Congress — there is at the same time a reservation of State sovereignty, under that NEGATIVE PREGNANT in the Constitution — to wit: the restriction on the power of the States to lay duties on imports, exports and tonnage. Does not Mr. M'duffie see, that a clause, which according to Mr. Hamilton, has the "merit of reconciling, an indefinite Constitutional power of taxation in the Federal Government, with an adequate and independent power in the States to provide for their own necessities," is amongst the most important clauses in the Constitution, and that it justly merits the position it now occupies, to wit — at the head of all the other powers. Must he not confess his oversight, when he did not perceive, that the taxing power was indispensable, as the great sovereign means of executing al the other powers, and that he was greatly in error, when he imagined, that had the intention been, to apply the proceeds of the taxes to the enumerated powers, “there would have been NO NECESSITY, for an express delegation of power, to raise and appropriate money." Had Mr. M'duffie not indulged in the Utopian scheme, that a fundamental dissimilarity of interests between twenty-four States, embracing a portion of the globe larger than Europe, and differing so much in climate, soil, and productions, and in their institutions and their laws, could ever be altered or destroyed; but have contemplated all the schemes of internal improvement, as all rational men do, merely as calculated to add influence to the Supreme Government, and to take it from the subordinate sovereignty, and thus finally to merge the one into the other; had he looked into the Constitution, not with the visionary eye of an ardent enthusiast, for a splendid Government, but with that of the calm and philosophical statesman, he would have known, that it is a work so admirably contrived, as to bear upon its very face and front, the irrefragable evidence, that its whole scheme and design is opposed to constructive powers — that the giving away little odd parcels of power, which were the incidents to other powers before given, was purposely, to impress upon the minds of future generations, that nothing was to .be-claimed which was not, given; and from this, he would have learnt what I hope I have established to the satisfaction of all; to wit, that the taxing power was given, not as he believes, to accomplish the particular end of spending money towards the common defence and general welfare, beyond the enumerated objects, at the discretion of Congress; but that it was, of necessity, given for other and higher purposes, to wit, the accomplishment of the enumerated objects, for which the Government was instituted.

The fallacy of Mr M'duffie's argument being thus shewn, I pass over. those observations of his, in which he would shew, that if his view of the appropriating power of the Government be not correct, every Congress has been guilty of habitual violation of the Constitution. No argument founded on precedents can have weight, where the question at issue is, whether the Government has, or has not usurped its powers. Mr. M'duffie cannot seriously believe, that in the instances which he has cited, of the appropriations to the St. Domingo sufferers, under Gen. Washington's administration, and of that to the inhabitants of Carracas under Mr. Madison's, there was an application of money to the "general welfare" of the people of the United States. These were remarkable instances, of the triumph of generous feelings, over sober legislative caution. But there is an argument, drawn from, the precedent in the case of the purchase of Louisiana by Mr. Jefferson, which does merit a particular reply.

Mr. M'duffie would here exultingly ride over his opponents, by supposing them to take a ground, which, in my view is wholly indefensible. — . "It will be said," says he, "that the purchase of Louisiana, was made by virtue of the Executive power to make treaties, and what follows? That there is an unlimited power in the Executive Government, not only to authorise Congress to appropriate money, but to impose upon it all the obligation, which can grow out of the treaty, to make the appropriation." — This, Mr. M'Duffie triumphantly exclaims "puts an end to the argument, which limits the power of appropriating money to the other specific grants to Congress embraced in the enumeration of its powers;" for, says he, "it would be an extraordinary supposition, that the framers of the Constitution intended to limit, by the most jealous restrictions, the power of the popular branch of the Government, in selecting the objects calculated to promote the general welfare, and at the same time, to vest in the Executive Government, the most unlimited discretion on the same subject."

But the whole of this is a fallacy. Mr. M'duffie here makes up a. "man of straw," that he might tear him into pieces. Who would contend, that every treaty made by the President, and ratified by the Senate, is obligatory upon the House of Representatives, or upon the Slates,.or the people. A treaty stands upon no better footing than a law of Congress. In either case, it is only, the "Supreme law .of the Land," when, made "in pursuance of the Constitution." If the President,, and Senate ratify a treaty, in which there are stipulations, which violate any express article in the Constitution, Mr, M'duffie ought to know, that such a treaty Would not be binding. Suppose a treaty to be made in which the United States are pledged to a,n alliance with England or Fiance, offensive. an4| defensive, such a treaty would be void, because it would enable the Executive, and the Senate to put the United States at war with a foreign power, when it is Congress alone in which the power is vested, "to declare war." Many cases might be put, where not only express articles of the Constitution might be violated, under such a construction us this, but certain unalienable, though Undefined rights of the States may be impaired and surrendered. This was clearly illustrated some years ago, in a pamphlet called "Caroliniensis." In the debates on Mr. Jay's treaty, a treaty inf which it was not pretended, that there was any violation of the Constitution, it was even there doubted, whether the House of Representatives was bound to carry it into effect. The purchase of Louisiana, is not then to be justified, on the ground of its being made by virtue of the Executive power to make treaties. ' The President and Senate have the unquestionable power to make treaties, as far as those treaties relate to subjects, within the scope of the enumerated objects, for which the General Government was established, but no farther. They have no Constitutional right, to negociate to purchase territory for the United States, as territory merely.

Because Louisiana 'was purchased by Mr. Jefferson, Mr. M'Duffie concludes, that the purchase was justified, under his favourite doctrine, of "the power to appropriate money for the general welfare, as money merely." f differ totally from Mr. M'Duffie, since the purchase of this Territory, is to be defended on the proper, and the only ground of its being a war measure — most decidedly a war measure. I can well recollect the' causes which led to the treaty of cession: A right of deposit was denied us at New-Orleans, by the Spanish authorities, and there arose from this aggression, such an excitement throughout the Western country, in consequence bf this violation of subsisting treaties, that it became necessary, that the Government should adopt immediate measures of negociation, or war. There existed a powerful party in Congress, who were for taking New-Orleans by force, at the head of which were many distinguished members, amongst whom was Mr. Ross, from Pittsburg. In this critical posture of affairs, when war or submission was unavoidable, Mr. Jefferson, whose policy was that of peace, conceived the sublime project of purchasing it, so as to avoid hostilities. But Spain, in the mean time, transferred the Province to France, and Mr. Jefferson being still unwilling to have a collision with Bonaparte, and being given to understand, that it might be purchased, the purchase was accordingly made. Had we gone to war, and acquired Louisiana by conquest, and retained it after a treaty of peace, no one would have doubted our right to hold it, nor can it be denied, but that it would have cost us some blood, and the expenditure of treasure fully equivalent to the purchase money. It would be refining too much to say, that when we are on the eve of war with a neighbouring power, and negociations are entered into, and on the one side a cession of territory takes place, and an equivalent is stipulated on the other, that there is any substantial difference between such a case, and that, where, after actual war, the same treaty is made. I conceive the money expended far Louisiana, as much applied to a purpose strictly national, both in its character and its consequences, as if it had been invested in the armies, or fleets, or other warlike preparations, which would have been indispensably requisite, had not the cession taken place. Instead of its being a cession, in a treaty of peace, after an expensive war, it was a treaty before, and IN SUBSTITUTION of WAR. It was a measure having a direct and natural relation to war. It was then substantially A WAR measure. It was clearly within the enumerated objects in the Constitution, and therefore Constitutional. I will close this part of my examination of Mr. M'duffie's doctrines, by inserting an extract from Mr. Madison's celebrated report of 1799, which is so much better than any thing I can urge to the same point, that, perhaps, I merit reproach for not inserting it earlier. Says Mr. Madison, "Whether the phrases in question be construed to authorize every measure relating to the common defence or general welfare as contended by some, or every measure only in which there might be an application of money as suggested by others, the effect must substantially be the same, in destroying the import and force of the phrases in the Constitution. For it is evident, that there is not a single power whatever which may not have some reference to the common defence and general welfare; nor a power of any magnitude, which in its exercise, does not INVOKE or ADMIT an application of money. The Government, therefore, which possesses power, in either one or the other of these extents, is a Government WITHOUT THE LIMITATIONS, formed by a particular ENUMERATION of powers, and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases. — The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defence, and general welfare. In both, is subjoined to this authority, an enumeration of the cases, to which their power shall extend. Money cannot be applied to the general welfare, otherwise than by an application of it, to some particular measure conducive to the general welfare. Whenever, therefore, money has been applied to a particular measure, a question arises, whether the particular measure, be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it. If it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by the clause in the Constitution, which declares ' that no money shall be drawn from the Treasury, but in consequence of appropriations by law ' An appropriation of money to the general welfare, would be deemed rather A MOCKERY, than an OBSERVANCE of this Constitutional injunction."

NO. 19.

Let us now meet Mr. M'duffie on the true ground, upon which this, controversy must finally be decided. The taxing clause, it is said, gives the power to Congress, to appropriate its revenues at its discretion, "to provide for the common defence, and general welfare of the United States." Be it so. The expenditures of the Government must still be applied to national purposes, and to no other. It cannot be pretended, that the clause, as it is now expressed, means either more or less than this. Indeed, Mr. M'duffie's reasoning completely establishes this, point. But here the question obtrudes itself upon us. What shall we call a national purpose? for until we can arrive at some precise definition of nationality, it will be in vain to carry on the contest. I will, therefore, give my view as to what constitutes a purpose to be national in its character, as distinguished

from one which is heal, and I hope to sustain my definition, upon the most solid of all grounds, the grounds of the Constitution itself.

We roust never forget, that there is a distinction between the term "national," as it may be used in general, and the sense in which it must be understood, with reference to American affairs. Were all the State sovereignties abolished, and the people of the United States under one consolidated Government, there could not possibly be a difference of opinion, as to what is meant by the term, "the general welfare of the United States." But it is, because we present to the world, an anomaly in politics and in civil government, that the whole difficulty arises. We understand terms, in the sense, in which frond time immemorial, we have been accustomed to use them, forgetting that, however correctly they may be applied in such a sense, to Governments in general, yet, that they can have no influence as regards a country, where has been introduced, an order of political institutions, totally distinct from anything that ever did, or probably ever will occur again, in the history of the world. In England therefore, or in France, the term "national," is correctly understood to be synonimous with the words "public" or "general." There, any undertaking by the supreme authority, is called a national undertaking, and any money applied to public purposes, by the same authority, constitutes the appropriation to be "for the general welfare." The general welfare of the British Isles, is the national welfare of Great Britain, for, let the public acts of the Imperial Parliament, be what they may, they operate upon the English, Irish and Scotch, as one entire people, and are properly regarded, and felt by them, as national acts.

But when we come to speak of American affairs, where the same people are partly governed as one entire nation, and partly, in twenty-four separate sovereignties or nations, terms, which hitherto have received an undisputed import, now begin not to be so definite, or so easily understood. To give a character of nationality to a measure in America, something more is requisite, than would suffice in England. To be general, or public as to its effects, throughout the United States, and to proceed from the supreme authority, the Congress, is not of itself, sufficient. It must also be adopted by that authority, within the sphere of its own prescribed powers. If it be not done in the exercise of its lawful sovereignty, however the particular measure may serve to promote the general welfare of the people, yet, in strictness and in truth, it is not a measure national in its character. It is an act of usurped authority, operating beneficially upon the great mass of the people; and so far, is a measure for the public and general welfare; a case which sometimes occurs. A Despot may be so kind, and impartial to .all his subjects, as to render his Government, a paternal and an happy one.

The only mode by which we are permitted to test the character of any measure, as to nationality, is to bring it to the standard, provided by the people themselves. That standard is the Constitution To this, and, this alone, we must all come, for a DESCRIPTION, of the objects and measures, which are national. It is in this great deed of covenant, that are expressed, the sole purposes, for which we became ONE ENTIRE nation, and no judiciary tribunal on earth, by any ingenuity of construction, can lawfully decide, that the people of these States, are an entire nation, for any other objects, than the deed itself specifies. If any one object, can be deemed a national object, which is not there expressed, any other may be equally deemed to be national, and the deed itself, becomes a piece of useless parchment. To abandon the description of the objects of the Federal Government, as set forth in the Constitution, and to take up any system of construction, and thence to deduce objects, and to call them national, is neither more nor less, than to make us a nation, not for the purposes agreed upon, but for any, and every purpose, which human ingenuity can suggest; for who can affix limits to the imaginations of men 'I It is to be set adrift, on a perilous and boundless ocean, without a chart or a compass.

We are now making some progress towards a sensible, and a correct definition of nationality. A measure to be national, must then have a reference to the expressed purposes, for which the United States Government was created as a Supreme Government. If there be in the State Legislatures, ANY CONCURRENCE of jurisdiction, Or authority over any one of the objects, to promote which, Congress has power to legislate, THAT object cannot be a national object. To constitute any one object of civil government, in these States, to be national, it is indispensably necessary, that it be an object, to promote which, the States can no more exercise lawful authority, than could France or England. The MERE fact of the United States Government not being supreme as to that object, by the terms of the grant, DECIDES IT TO BE LOCAL. It would he a manifest absurdity to maintain, that the same people, could desire to exist as ONE nation, for an especial or a designated object, and at the same time, to exist as TWENTY-FOUR distinct nations, for the self-same object.

I hope I am now fully understood. EVERY THING is national in its character, over which, by the terms of the Constitution, the United States Government can exercise exclusive sovereignty; and NOTHING is national, which the States can legitimately make the subject Of their legislation. It is impossible that any definition, more accurate than this, can be given of nationality. It is a definition, which results from the very nature of the anomalous structure of our civil Government. That it is truth itself, may be thus demonstrated.

There is no one object, which can be mentioned, which we all agree to be decidedly national, for which there is not a provision in the Constitution, that Congress, as to that particular subject, shall be supreme; and, on the other hand, there is not an object which, with one consent in the States, we term local, over which the States do not exercise sovereignty, by the terms of the compact, in exclusion of the power of Congress. I, of course, exclude the subject of "taxation" when I am considering the objects, for which the Federal and State Governments were created. This being the vital principle of all Governments, must be possessed by the one, as well as the other, as a means to promote the objects of each; and, hence, of necessity, there must be a concurrence of sovereignty over subjects for taxation in general. With this qualification to my position, which I state rather to prevent cavilling, than from any fear, that any candid reasoner would avail himself, of what might appear to be an oversight, let us now proceed to test our definition of nationality, by citing some few instances on each side.

In "declaring war" we constitute one consolidated nation. Why! Because Congress has the power to declare war, and no State can even "engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." In preparing for war, by military and naval establishments, we are an entire nation. Why? Because the States are expressly forbidden by the compact, to raise troops or build fleets, except in actual war. In "coining money" we are a nation. Why? Because amongst the limitations on the power of the States, it is said, "No State shall coin money.'' In regulating foreign and domestic commerce, and our intercourse with the Indian tribes, we are one nation. Why? Congress, under the Constitution, exclusively possesses the right. In "foreign negociation," we are one nation. Why? "No State shall enter into agreement or compact with a foreign power." In the regulation of coin, foreign and domestic, in establishing uniformity in weights and measures, and in bankrupt and naturalization laws, and in conferring patents and copy-rights, we are one nation. Why? Because, the necessarily exclusive nature of the grants on the subjects, sweeps away the whole power, and precludes the States from legislating on them.

Thus, we see, that every object, universally admitted to be national, coincides with the definition we have given of nationality, which means an ENTIRE subordination of the subject, to the undivided sovereignty of Congress, by the terms of the Constitution. Let us now cite, some instances on the opposite side, of subjects, which are confessedly local in their character. Let us begin with the numberless capital offences against the peace of society. — Here is a subject of legislation strictly local. Why? The States are in the constant practice of this species of legislation — and Congress, with the exception of cases provided for in the compact, cannot define and punish felonies on land, its jurisdiction extending no further than to "define and punish felonies committed on the high seas."

Why are all laws, on the subject of free schools, descents, sale and transfer of property, of escheats, executors and administrators,, and guardians, and a thousand such — why is this species of legislation local? Because, from time immemorial, the States have regulated all such objects, and Congress has no specific grant of any such power — but on the contrary, "all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, shall be reserved to the States, or to the people, respectively."

If there be now, one single object of Government, universally admitted amongst us to be local, or national, in its nature, or character, which will not readily fall in with, and sustain the definition herein given, of nationality, let the ingenuity of the Bar point it out. I cannot imagine it.

When I speak, however, of what is necessary, to constitute any measure to be national, I must not be understood to mean, that the particular measure, must be written down in the Constitution, as a subject for the exclusive sovereignty of Congress — and that, if it be not there found, it is not national. All I mean to inculcate is, that the measure must have such a simple, and such a direct relation, to some one of the enumerated objects, that in its absence, that particular object of the Government, could not well be accomplished. But even in this case, it is indispensably requisite, that the particular non-enumerated measure is one, on which the States cannot act in any way whatever. For instance — The UNITED STATES establishment at WEST POINT, is a measure national in its character, though no power for such an establishment is to be found in the Constitution. Why is it national? For the plain reason, that though a State can promote military science, yet no State can establish a similar institution, conferring military rank, pay, and subsistence, bona fide, with a view to a regular army, without violating that part of the Constitution, which forbids the States from keeping up military and naval establishments, in time of peace. So the establishment of a NATIONAL MINT is not expressed in the Constitution. But it is national. Why? Because no State "can coin money." So also, all legislation on the subject of privateers, fitting out in our ports, to cruise against a belligerent with whom we are at peace, is not once mentioned in the Constitution. But it is nevertheless, entirely national. But what gives it this character of nationality? It is the alienation of State sovereignty on the same subject, under that clause in the instrument, which gives to Congress, the power to "define and punish offences against the law of nations." A power, which, if it were left to the States to exercise, “might put it in the power of any indiscreet member to embroil the confederacy with foreign nations."'

This is one of the cases, in which an authority is granted to the Union, "to which, a similar authority in the States, would be absolutely and totally contradictory and repugnant," and which, according to the Federalist, is sufficient to make any power necessarily exclusive in its character — an exposition undeniably sound, and very properly maintained by the Supreme Court. It is on the same principle, that the power to regulate commerce,' to establish uniformity in bankrupt laws, naturalization, weights and measures, &c. is necessarily exclusive. There could be no UNIFORMITY on such subjects, unless one 'Supreme Government is to prescribe the rule. (See Federalist, Nos. 31 and 42.)

With so just, and so unerring a standard before our eyes, for estimating what as national, and what is local in its character, a standard purposely provided in the Constitution, the question can now at once be settled, whether CANALS, in general, are national or local in their character. Who is he that now hesitates in his opinion? If he cannot, after what has been said, decide in an instant. believer can decide. Tell him, it CANNOT BE NATIONAL, because, so far from their being any grant to Congress, of a particle of sovereignty, much more of exclusive sovereignty over the subject of internal improvement, such a power was proposed to be given to Congress, and refused. Is it then local? UNQUESTIONABLY IT IS LOCAL, because the States have hitherto exercised the undisputed power, to the exclusion of Congress. But, without the aid of our unerring test, to say whether canals are in their character, national:or local, we might long since have agreed with Governor Giles of Virginia, that "The peculiar character of the power to make internal improvements, is LOCALITY — locality in its MOST LIMITED form, and therefore peculiarly unsuited to to the jurisdiction of the General Government, which is GENERAL in its character, and peculiarly suited to the jurisdiction of the State Governments, whose jurisdiction is intended for LOCAL objects."

I do not deny to the Government the power, even to construct roads and canals under peculiar circumstances. It has the right flagrante bello. But, the digging of a canal in actual war, would no, more make this a measure national in its character, within the meaning of the Constitution, than to cut down trees across a road, or to burn the public bridges, or to inundate a certain district of country to stop the ravages of an enemy. The ground of justification on which such acts must rest, is, that they are as much the lawful means of war at the time, as if the United States troops were to take possession of a man's plantation or house, and to use it as an entrenchment. When the enemy is in the city, the,first thing to be done is to drive him out. Salus populi suprema lex. There is then no time to talk, of this or that power under the Constitution. Silent leges inter arma. The United States troops may do many acts in war, which they could not do in peace, without being violators of the public peace.

But, I do deny the right of the Government, to make a military road or canal, in time of peace, and for the unanswerable reason, that on a power to make military roads, and also canals, being proposed to be invested in Congress, the first .was not agreed to, and the second rejected by the vote of the Convention. Independent,' however, of this, the insertion in the enumerated powers, of all the. great means of carrying on a war, and the omission of the single one, of military roads and canals, would of itself shew, that the power was not designed to be given. And the power was most properly, withheld, for, as undoubtedly necessary, as military roads and canals may be in Europe, where, if it were not for their fortified towns, at short distances, a kingdom might be overrun in a few days. — Yet, in a country like ours, where, in most parts, every tree is a fortification, and every hunting path a military road .for our militia, it would be premature, in the present state, of the country, it would be' a waste of the public money to imitate Europe in this particular. — The Convention was, no doubt, Well satisfied that the extent of our country, was a security against a foreign, enemy, and that the principal points of attack, would be the sea coast, in the vicinity of which, there would always be found roads, and that the country could be sufficiently defended by armies and navies, forts, &c. trusting, that as the settlements extended, and the country became more populous, the States would, from necessity, have sufficient roads and canals, for commercial purposes. But, the material objection at that day, no doubt was (and a solid objection it was) that, to grant a power to make roads and canals, even for military purposes, would involve, as a matter of course, a right of exclusive jurisdiction on Congress, over SOIL and TERRITORY, which the States were resolved not to permit, even as to their forts, &c. without their express consent. They could not be ignorant, that if Congress could construct, thousands and thousands of miles of roads and canals, it could exact tolls thereon, and pass laws to punish persons who should wilfully injure the public works, and thus exercise local dominion in the States. It is absurd to believe, as I have already shewn, that Congress and the States, can be copartners in Legislation over any one object of Civil Government. It must belong entirely to Congress, or not at all. Who can read the Constitution and say, that the States ever intended, that Congress should have exclusive jurisdiction, excepting at the Seat of Government, and in its forts, dock-yards, &c.? But the making of necessary military roads and canals, in actual war, is a very different thing. It is free from all these objections. At the conclusion of peace, it would be as strange for the Government to claim jurisdiction over such roads and canals, as it prepared for the passage of troops, as it would be for it, to hold jurisdiction over a citizen's plantation, which its army occupied the whole war, as an entrenchment. The want of good roads, which was felt in the late war, as to the operations on the Canada frontier, is no reason, why the power ought to be claimed by Congress. Mr. M'duffie's argument here, if it means any thing, means this. That wherever an occasion has occurred, which proves, that the Government, in any of its operations on that occasion, might have done better, if it had possessed certain, or more extensive means, that such means necessarily must belong to it. — This might be an argument,.on a motion to amend the Constitution, so as to give Congress a power to make military roads; but. it can have no weight, in any other point of view. Congress has limited powers. The power to make military roads and canals is as SUBSTANTIVE a power, as that of raising armies and navies. A substantive power cannot be exercised by construction.

If the propositions herein laid down be true; 1st. That money cannot be appropriated but for national purposes; and 2ndly, That no measure is national in its character, .which refers to a subject over which the States, under, the Constitution, can lawfully exercise their sovereignty, it will be for Mr, M'Duffie now to explain, how Congress can legitimately take the subject of internal improvement, under its consideration. The error into which Mr. M'duffie has, unhappily fallen, is, that he has not been careful to distinguish those clauses in the Constitution,, which declare the PURPOSES for which the people exist as one nation, from the two first clauses, is the enumeration, which simply confer the POWER to execute those purposes. He has not been careful to distinguish between a POWER coupled with a TRUST, and A NAKED power. The distinction between the one and the other, is in equity, most marked and obvious. "A mere power is never imperative. It leaves the act to be done, at the will of the party to whom it is given," and hence full discretion is implied. "A trust is always imperative, and is obligatory upon the consciences of the party entrusted." But where trusts and powers are blended, as where a man may be invested with trusts to be effected by the execution of a power, as is the case where a power is given by a will to trustees to sell an estate, and to apply the money upon trust, here, though the legal estate, until the execution of the power is in the heir at law; yet, on the power being defeated at law, by the death of the trustees, Equity acting upon the trust, will compel the heir, to join in the sale of the estate for the execution of the trusts. (See Sugden on Powers.) Mr. M'duffie has lost sight of this, and strangely regards the levying and appropriating power of Congress, as one of the purposes or trusts for which the Government was created; whereas that clause, and the succeeding one, that of "borrowing money on the credit of the U. States," is not an end, but simply the great means, by which all the enumerated objects, or trusts, are to be accomplished. It is the Power coupled with the Trusts. To be asked to demonstrate this, is as if we were called upon to prove, that any one problem in Euclid is true. I will, however, endeavour to make it plain to those who are not lawyers.

The distinction between the levying and appropriating power of the Government, and all the other enumerated powers, is most manifest. In the other enumerated powers, there is not a single clause, which does not contain within itself, some one of the many definite purposes for which Civil' Government generally exists; whilst in the two money raising clauses, there is no definite purpose whatever expressed. Nothing is easier, or more natural, than to imagine, that a people should desire to constitute ONE nation for war, for foreign Negotiation and Commerce, (under which general heads all the trusts in the Federal compact may be included) hut it is extremely difficult to make a man of common sense believe, that a people already associated in thirteen regular Governments, should desire to be consolidated into one supreme sovereignty, merely for the pleasure of BEING TAXED; and to possess the power to SPEND those taxes. The laying and appropriating power, is therefore no more, than the POWER- of the Government, coupled with the TRUSTS. It is only a MEANS. A means cannot be a purpose, or an end, nor can it be greater than an end.

Suppose that Mr. M'duffie, as a lawyer, was to have submitted to him a deed from A. to B. in trust for various uses, and with many limitations therein expressed, and his opinion was solicited as to the real intent of the donor; to what part of the trust deed would he look, for the purposes for which he estate was created? Would he look to those clauses in the instrument, declaring the trusts, or would he read the general power in the deed, enabling the trustee to raise money without limit, for the general benefit of the estate, by sale or mortgage of the estate, or otherwise? The answer is, he would assuredly look to the trust clauses, as the only means, by which he could come at the objects, for which the estate was given by A. and he would scarcely cast his eye on the general power to raise money, such a power being a matter of course. Precisely the same must it be with the Constitution of the United Slates. If we would ascertain, for what purposes we exist as one nation, so as to decide, whether any particular object is a national object, or a local one, it would be as useless to look (as Mr M'duffie does) at the two first clauses, giving the power f to raise a revenue by taxes and loans, and to appropriate it to the general welfare," as it would be, to look at the general power in the trust deed above referred to. These two clauses in the Constitution must then be put aside. They actually ought, to have no more influence in an inquiry, as to the purposes which are meant to be embraced in "the general welfare," than that clause in the Constitution, which says, that "each House shall be the judge of the elections of its own members." Construe these clauses as we will, they speak no other language than that the Government shall raise money by taxes, and by loans — and that the proceeds shall be applied to the purposes, for which we became a nation, and, to no other. Where shall we seek for these purposes — In the brains of ingenious politicians, or in the enumeration of the specific objects or trusts. In the latter unquestionably. Id CERTUM est quod certum REDDl potest.

No part of the foregoing view can be confuted, unless some reasoner more ingenious than sound, should insist, that the words to lay taxes to pay the debts and provide for the general welfare "of the United States," give to this clause a character of specification as to purposes. The answer to this is simple. The words "to pay the debts" here, mean no more, than to pay the expenses of the government, or debts contracted by loans, &c. to carry into execution the specified objects. Referring to the 6th Article of the Constitution, we shall see that provision is expressly made, that the new Government is to assume all the debts of the Confederation, and thus constitutes those debts, as one of the trusts to be executed. The trust being already created, and in its proper place, it would be strange to imagine that the words "to pay the debts" mean any thing more than the contracts of the Government.

We are now to consider some of the extravagances and absurdities, to which any other definition of "nationality" than that herein given may carry us, and in this way we shall see the real difference between money applied to the "general welfare," and that used for the national welfare.

NO. 20.

Mr. M'duffie, it must be remembered, contends, that the power of Congress, to expend money for the general welfare, beyond the enumerated objects, is unlimited. As he cannot conceive "upon what principle, the judiciary can pronounce any road unconstitutional," even if Congress, "under the pretext of making military roads and canals, were to make them for purposes not military," though he admits that "such would be an act of usurpation," we are therefore to have, in the opinion of Mr. M'duffie, no other security too, against appropriations manifestly unconstitutional, than this, "that the conscience of every member, is to be the tribunal before which, he must justify his vote, in each particular exercise of the power in question."

Let us see how this doctrine would work. Say that Congress shall annually appropriate a million of dollars, to the support of free schools, in every Parish of the United States, and for that of a College in every State. As much more for a deaf and dumb institution, and a lunatic asylum, in the capital of each State. The same, for a splendid hospital for invalids, in each State, upon the plan of that in Paris, and for infirmaries for the diseases of the eye, and the ear. A million for churches and chapels, from Maine to Cape Florida, for the use of all religious denominations, without distinction. A million to increase the funds, and stimulate the efforts of associations, to suppress duelling, and of societies for the suppression of gambling, drinking, profaning the Sabbath, and vice of ail kinds. As much more to philanthropic societies, whose objects are to improve prison discipline, and to restore drowned persons to life: and then an appropriation of four millions, to objects of general concern, which we have not here room to enumerate. According to Mr. M'duffie's exposition of the Constitution, all these appropriations, can be constitutionally made by the National Legislature, though, they cannot be referred to the enumerated objects of the Government. That they are all measures, which promote the general welfare and the happiness of the people, no one can doubt; and if we regard them, as to their effects upon the general community, they are unquestionably national in this point of view. But can Congress constitutionally make these appropriations? Let those who, in this particular, agree with Mr. M'duffie be told, that they maintain this most extraordinary of all positions; that amongst the MANY purposes, for which a people, already governed in thirteen regular State Governments, covenanted, to become one entire people under a Supreme Government, ONE GREAT END to be promoted, was, that ten millions of dollars, or ten times that sum, if deemed expedient, should be annually TAKEN from their pockets, by imposts and other taxes, with no other view, than that it should be RETURNED to them again, and under an utter impossibility of their receiving it, in the same proportion, in which it was drawn from the several States; and this too for the laudable purpose of accomplishing objects, to which the States were SEPARATELY COMPETENT, if the money was kept at home.

Here is a most wonderful exposition of the Constitution. The Convention, after two months deliberation, as to the great outlines of the Government, solemnly decides, in the sixth amended resolution of Mr. Randolph, that Congress is to possess legislative rights in cases "to which the States are separately incompetent." A committee in detail forms a Constitution under these instructions; they exclude all such cases from the enumeration of the legislative powers of Congress. An effort is made to "give additional powers to legislate, on the subject of agriculture, manufactures, science, and internal improvements." Canals and Universities are proposed. All efforts to give jurisdiction over these subjects, so confessedly local, failed in the Convention; and yet we are told AGAINST the internal evidence of the deed itself, AGAINST the lights of the public journals and secret debates of the Convention, and' A04INST the written statement of Luther Martin, who may be well compared, to a witness who sits at the bedside of a testator, and takes down his words in writing; that though Congress cannot dig a canal without violating the compact and the sovereignty of a State; though it cannot create a great manufacturing company, with exclusive privileges as to monopoly; though it cannot, even according to the decision of M'Culloch vs. The State of Maryland, incorporate and take under its charge, Free Schools, Deaf and Dumb Institutions, &c. because they do not refer to any of the specified objects, which Congress are to regulate; yet, that the great ends which the above are the means of accomplishing, may be promoted by Congress in other ways. Monopolies to the manufacturers cannot be created by an act of Congress, without a departure from the Constitution, and yet they may be. given in the shape of protecting and prohibitory duties, because Congress "has the power to lay imposts" Canals cannot be dug in the States, or military roads constructed, because it is to exercise sovereignty over soil and territory, and yet money may be voted for the name objects, because Congress can promote the "general welfare." National establishments of Deaf and Dumb institutions, with incorporated powers, are unconstitutional — and yet all such institutions may be most liberally endowed out of the National Treasury. What is all this but to say, that Congress shall be permitted to approach indirectly, a subject for its legislation, which it is admitted it has no power to approach directly, contrary to that most excellent maxim of the law — "Quando aliquid prohibetur fieri Ex DIRECTO, prohibetur per OBLIQUUM."

The evils of such a construction as Mr. M'duffie gives to the appropriating power, may be most tremendous. For instance — The writers in the Monthly Journal of the Colonization Society, admit, that a power in Congress "to emancipate and remove Slaves within the limits of a State, would be a most alarming interference, with the rights of a State, and of individuals," — but yet they contend, (and they entrench themselves behind Mr. M'duffie's exposition) that an authority to create a fund, as proposed by Mr. Rufus King, to aid the gradual emancipation and removal of the Slaves in the United States, would be constitutional — because, say they, "the power of appropriation, is limited only by the general interests of the country;" and the removal would not "interfere with the rights either of the States or individuals." Not interfere! The purchase of the Slaves, and their transportation to Africa, would not merely deprive us of the only labourers, who can cultivate our soil; but it would have the effect, of altering the Constitution of the United States, in a most material point. It would change the whole representation of the Southern States. Remove the Slaves from South-Carolina — three-fifths of whom are represented in Congress — and South-Carolina instead of sending nine Members to the House of Representatives, will send five, and perhaps not two from depopulation — and the other States will lose in about the same proportion.

It is to me most amazing, that Mr. M'duffie should freely admit, "that in determining what sovereign powers belong to Congress, Congress has NO DISCRETION, the Constitution being the inflexible land mark;" and yet, that he should not himself perceive, that in selecting for the appropriation of its revenues, any object whatever, which it chooses to designate as an object of 'general concern, Congress does thereby exercise, that high sovereign power, not included in its grant of powers, to wit: of legislating indirectly upon subjects, and attaining objects, which belong to the States to regulate, and which, from the very nature of the subjects, the States are not only "separately competent," but more competent to manage, than the General Government. There is a strange fallacy in that reasoning, which would say, that Congress is limited as to the subjects, upon which it can exercise its utmost power of sovereignty, and yet unlimited as to objects, on which its sovereignty is to be indirectly applied. I say sovereignty indirectly exercised, for according to the Constitution, the purpose for which money is given, must be specified in the act of Congress, and this act of legislation, constitutes the sovereignty which is to accomplish the object.

It seems then, according to this exposition, that the General Government is not Supreme within the sphere of its own powers, and when it is accomplishing the purposes for which it was created. If I understand the argument, it is substantially this. There are TWO kinds of purposes, for which we consented to become as one nation, as distinguished from twenty-four nations. First; those which are agreed upon, and particularly specified. These we readily comprehend. And secondly; those which are equally agreed upon, but not enumerated. This is not so easy of comprehension — it requires explanation, how a new Government is to be created, with undefined objects, though it is easy enough to understand, that undefined powers may be reserved to an old Government, from which some powers are withdrawn. For the enumerated objects, and all measures thereto appertaining, it appears, that Congress is a Supreme Government. It can approach its objects, honestly, fairly and directly. But for all the undefined (MOST WISE) purposes for which we act as one people, and which purpose are embraced in the appropriation power, under the term "general welfare," Congress has not the full power of a nation, over a vast variety of these, which it may choose to make the subject of its legislation. For instance — Roads and Canals. Congress is not now Supreme. If it wishes Roads and Canals, it cannot construct them — it is not sovereign enough for this, but it can bring its imperfect sovereignty (something new) to bear upon the measure, in some other way. Whatever is now to be accomplished, must be done, to use a vulgar adage, by whipping the Devil round the stump, unless, says Mr. M'duffie, some "other sovereign power besides that of appropriating the money be necessary to accomplish the particular object," in which case, I understand that partial sovereignty must not be resorted to, and the Devil is to be let alone, and the purpose cannot be accomplished.

According to this theory, what becomes of the States? I always heard, until now, that there were State Governments, as well as a Federal Government. That we existed as one nation for certain designated purposes, and that for all other purposes, (and these are few enough, God knows) there are two express articles in the Constitution, which say, that we remain twenty-four separate nations. But it seems that we are all wrong. Congress can lawfully take what belongs to it, under the express grant, and it may constantly be cribbing power from the States, by imperfect sovereignty without committing a gross trespass on the rights of the people. There is no boundary line, it seems, between the defined powers of Congress, and many of the undefined purposes of Civil Government, reserved to the States, for Congress can accomplish both. The one by direct, and the other by indirect sovereignty.

"The only two great safeguards, which we are permitted to have, for restraining and arresting the usurpations of the Government, and preserving the liberties of the people, ''are the positive restrictions upon power; and the responsibility of those who exercise power, to the people upon whom it operates." Our security, as to any abuse of power in Congress, when it is ranging at large, and seeking its employment and legislation, in the field of the novel and undefined purposes of the Federal Government, is not to be found, even in the judiciary tribunals of the United States. — We are not even to have, the slight chance of a decision of the Supreme Court in our favour. According to Mr. M'duffie, "the conscience of each member of Congresses to be the tribunal before which, a vote" of an hundred millions of the people's money for unenumerated purposes, is to be justified. Says Mr. M'duffie, "Shew me, in any of the subdivisions of this comprehensive scheme of representative Governments, a power operating beyond its responsibility, and I will shew you a power unknown to the system. A comet, let loose from the power of gravitation, which must inevitably destroy the planetary harmony by which that system is so admirably characterized." That unknown power, I can tell Mr. M'duffie, does exist! It is a principle wholly unknown to our system, which distributes power between one common head, and twenty-four subordinate Governments, that there should be no other security against indirect legislation, and the consequent IMPINGEMENT upon the States, than the consciences of the national legislators. It is wholly unknown to our system, that the General Government should so legislate, as to gain by a monied influence, what it cannot lawfully accomplish, by an exercise of lawful power. Influence is power, and whenever the State sovereignties are abolished, it will be accomplished by the mass of influence, which the General Government will ultimately possess, by small but constant accessions, in the exercise of its constructive powers. As to political responsibility of public servants, as a safeguard, it exists but in the imagination. — There is a responsibility, it is true, of our own members of Congress to the people of South-Carolina. But these men can do no more than their duty. . When once the people of the Northern and Western States, who constitute the majority, shall decide, that we shall pay tribute to them, what becomes of that safeguard called "political responsibility?" Will this save us, from the usurped dominion, of the men of Sagadohock, or of the Illinois? No! Mr. M'duffie will find, that for relief against that odious Tariff, which he so fearlessly, so zealously, and so eloquently opposed, in common with the rest of his colleagues, it will be in vain ever again to look to the ballot boxes of any elections South of the Potomac. To our State Legislature alone must we look, that by its wisdom, and its firm purposes, it may avert from us the evils which encompass us.

On this subject of political responsibility, which is so dazzling in its theory, many of our prominent politicians in Carolina, the most of them excellent men too, have been running into the wildest extravagances. Instead of looking at the Constitution, with the eyes of statesmen, and with a reference to the peculiar circumstances which attended its formation — instead of bearing in mind, that so far from there being any desire, in the great body of the people, in those days, to have a National Government, with plenary and indefinite powers, and with increased and increasing influence, that the difficulty rather was, to get a Government at all, these gentlemen take up the compact, and examine it in most of its provisions, as lawyers would a deed, with no reference to such a thing as equity. Because it professes, in its preamble, to come from the people, and operates upon the people, it is peculiar to these gentlemen to ascribe the existence of the Government, to be the act of the people en masse, independent of the State Legislatures, and of its being responsible to the people, and not to the State Legislatures, as if those Legislatures had not the entire agency in calling the Convention, and, as if they could not (had they so willed it) have frustrated all the hopes of that Convention. Hence, it is, that when our Legislature shall raise its voice against any usurped act of the Government, they would protest against any such expression of the public opinion, the Legislature not being the proper organ, without, at the same time, telling us, by what other expedient, the General Government is to be kept within its own sphere of action and of influence. Should that day ever arrive, which God forbid, that it shall become necessary to resist the usurped power of Congress, how will the people be able to act, excepting under the authority of the State sovereignties? Can the people act of themselves? The Constitution of the United States is not a compact, between the people of the United States, as individuals. If it were, it would be on the plan of the Stale Governments. There would be no enumeration of powers. As is usual, in all such cases, nothing would belong to the people, but what is expressed in the limitations on the general power, or in a bill of rights. But it is, because the States, in their corporate capacities as States, are parties to the compact, that there is an enumeration of objects for the Supreme Government to operate upon. It is Mr. Hamilton who says, "it is neither a National or a Federal Government, but a composition of both. In its FOUNDATION it is federal, not national. In the SOURCES from which the ordinary powers of the Government are drawn, it is partly federal, and partly national. In the OPERATION of these powers, it is national, not federal; and in the EXTENT of them, it is federal, not national."

The very Constitution of the Senate, and the mode of suffrage there practised, demonstrates the importance of preserving the State Governments; for, without them, the Government must stop. But who are to preserve the State Sovereignties, but the State Legislatures? The federative principle is not destroyed. Let only the two Senators, from each State, represented during a session of Congress, be in their seats, and the result of the votes on any question, is precisely the same, as if the Senators voted by States, as was the case with the Old Congress. When the States have not their veto upon every act of the House of Representatives, in the same manner as if they were assembled in the Common Council of a pure Confederacy of States, it is only, when some one State is deprived of the services of one of its Senators, by sickness or absence; it is only at that time, that any difference exists between voting by States, and voting per capita. And what is more, this