| 
1. See 2 Elliot's Debates, 327, 328. See Dane's App. §41, p 48; see also 1 Elliot's Debates, 93; Id 293; Id 300; 2 Wilson's Law Lect, 178, 180, 181; 4 Elliot's Debates, 224; 2 U. S. Law Journal, April, 1826, p 251, 264, 270 to 282. This last work contains, in p 270 et seq. a very elaborate exposition of the doctrine -- Mr. Jefferson has, upon more than one occasion, insisted, that this was the federal doctrine, that is, the doctrine maintained by the federalists, as a party; and that the other doctrine was that of the republicans, as a party.a The assertion is incorrect; for the latter opinion was constantly maintained by some of the most strenuous federalists at the time of the adoption of the constitution, and has since been maintained by many of them.b It is remarkable, that Mr. George Mason, one of the most decided opponents of the constitution in the Virginia convention, held the opinion, that the clause, to provide for the common defence and general welfare, was a substantive power. He added, "That congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the constitution in respect to all powers, which are not granted, that they are retained by the states; otherwise the power of providing for the general welfare may be perverted to its destruction"c
a. 4 Jefferson Corresp. 306.
b. 2 Elliot's Debates, 170, 183, 195; 3 Elliot's Debates, 262; 2 Amer. Museum, 434; 3 Amer. Museum, 338.
c. 2 Elliot's Debates, 327, 328.
2. President Monroe's Message, 4th May, 1822, p. 32, 33.
3. The Federalist, No. 41.
4. See Debates on the Judiciary in 1802, p. 332; Dane's App. §41; President Monroe's Message on Internal Improvements, 4th May, 1822, p. 32, 33; 1 Turk. Black. App. 231.
5. Journ. of Convention, p. 356; Id. 494; 2 United States Law Journal, p. 264, April, 1826, New-York. -- In the Federalist, No. 41, the circumstances, that it is separated from the succeeding clauses by a semicolon is noticed. The printed Journal of the Convention gives the revised draft from Mr. Brearly's copy, as above stated. See Journal of Convention, p. 351, 356. See President Monroe's Message on Internal Improvements, 4th May, 1822, p. 16, 32, etc.
6. Journal of Convention, p. 323, 324, 326.
7. President Monroe's Message, 4 May, 1822, p. 32, 33.
8. President Madison's Letter to Mr. Stevenson, 27 Nov. 1830.
9. "Or" is the word in the article.
10. Virginia Report and Resolutions of 7 January, 1800. See also the Federalist, No. 41.
11. See the Federalist. No. 40.
12. Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830, admits the force of these remarks in their full extent. His language is, "If the practice of the revolutionary congress be pleaded in opposition to this view of the case," (i.e. his view, that the words have no distinct meaning,) "the plea is met by the notoriety, that, on several accounts, the practice of that body is not the expositor of the articles of the confederation. These articles were not in force, until they were finally ratified by Maryland, in 1781. Prior to that event, the power of congress was measured by the exigencies of the war; and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real, or an apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of that body held their seats during pleasure; as it acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the states, and as its general impotency became manifest. Examples of departure from the prescribed rule are too well known to require proof." So that it is admitted, that the practice, under the confederation, was notoriously such, as allowed appropriations by congress for any objects, which they deemed for the common defence and general welfare. And yet we are now called upon to take a new and modern gloss of that instrument, directly at variance with that practice. See also Mr. Wilson's pamphlet, on the constitutionality of the bank of North America, in 1785. The reason, why he does not allude to the terms "common defence and general welfare," in that argument, probably was, that there was no question respecting appropriations of money involved in that discussion. He strenuously contends, that congress had a right to charter the bank; and he alludes to the fifth article, which, for the convenient management of the general interests of the United States, provides for the ap-pointment of delegates from the states. He deduces the power, from its being essentially national, and vitally important to the government. 3 Wilson's Law Lect. 397.
13. 2 Elliot's Deb. 195.
14. The Federalist, No- 40. -- In the first draft, of Dr. Franklin, in 1775, the clause was as follows: "All charges of wars, and all other general expenses, to be incurred for the common welfare, shall be defrayed," etc. -- In Mr. Dickinson's draft, in July, 1776, the words were, "All charges of wars, and all other expenses, that Shall be incurred for the common defence, or general welfare," etc; and these words were subsequently retained. 1 Secret Jour. of Congress, (printed in 1821,) p. 285, 294, 307, 323 to 325, 354.
15. Virginia Revolutions, of 8th January, 1800. The same reasoning is in President Madison's Veto message, of 3d of March, 1817. 4 Elliot's Deb. 280, 281.
16. 4 Elliot's Deb. 236.
17. In a Debate of 7th of February, 1792. (4 Elliot's Deb. 236.) Mr. Madison puts them, (manifestly as his own construction,) "as a sort of caption, or general description of the specified powers, and as having no further meaning, and giving no further powers, than what is found in that specification." See also, Mr. Madison's Veto message, on the Bank Bonus Bill, 3d March, 1817. 4 Elliot's Deb. 0, 281.
18. 4 Elliot's Deb. 280, 281.
19. See the Federalist, No. 21, 22, 30; 1 Elliot's Deb. 318.
20. See the Federalist, No. 30 to 37.
21. See also 4 Elliot's Debates, 280, 281.
22. Mr. Jefferson.
23. Jefferson's Opinion on the Bank of the United States, 15th February, 1791; 4 Jefferson's Correspondence, 524, 525. -- This opinion was deliberately reasserted by Mr. Jefferson on other occasions. There may, perhaps, also be found traces of an opinion still more restrictive in his later writings; but they are are obscure and unsatisfactory. See 4 Jefferson's Correspondence, 306, 416, 457; Message of President Jefferson, 2d December, 1806; 5 Wait's State Papers, 453, 458, 459.
24. It was maintained by Mr. Hamilton, in his Treasury Report on Manufactures, (5th Dec. 1791,) and in his argument on the constitutionality of a National Bank, 23d Feb 1791, p, 147, 148; by Mr. Gerry in the debate on the National Bank in Feb. 1791,(4 Elliot's Debates, 226;) by Mr. Ellsworth in a speech in 1788, (3 American Museum, 338;) and by President Monroe, in his Message of the 4th of May, 1822, (p. 33 to 38,) in an elaborate argument, which well deserves to be studied. He contends, that the power to lay taxes is confined to purposes for the common defence and general welfare. And that the power of appropriation of the monies is co-extensive, that is, that it may be applied to any purposes of the common defence or general welfare. Mr. Adams, in his Letter to Mr. Speaker Stevenson. 11th of July, 1832, published since the preparation of these Commentaries, has given a masterly exposition of the clause, to which it may be important hereafter again to recur.
25. 2 Elliot's Debates, 170, 183, 195, 328, 314; 3 Elliot's Debates, 262; 2 American Museum, 434; 1 Elliot's Debates, 311; Id. 81, 82; 3 Elliot's Debates, 262, 290; 2 American Museum, 544.
26. See cases referred to in President Monroe's Message, 4th of May, 1822; 1 Kent's Comm. Lect. p. 250, 251; 4 Elliot's Deb. 226, 243, 244, 279 to 282; Id. 291, 292; 2 United States Law Journal, April, 1826, p. 263 to 280; Webster's Speeches, 380 to 401, 411, 412, 426.
27. 9 Wheat. R. 1, 199.
28. 1 Kent's Comm. Lect. p. 251; Sergeant on Const. Law, ch. 28, p. 311 to 315; Rawle on the Constitution, ch. 9, p. 104; 2 United States Law Journal, April, 1826, p. 251 to 282.
29. Journ. of Convention, 68, 86, 87, 135, 136.
30. Journ. of Convention, 181, 182, 208.
31. Journ. of Convention, 261.
32. Journ. of Convention, 261.
33. Id. 277.
34. Journ. of Convention, 279, 280.
35. Journ. of Convention, 284.
36. Id. 291.
37. Journ. of Convention, 323, 324, 326.
38. Id. 351, 356.
39. Journ. of Convention, 277.
40. Journ. of Convention, 291. See also the Constitution, art. 6.
41. Journal of Convention, 181, 182, 208. -- The letter of Mr. Madison to Mr. Stevenson of 27th November, 1830, contains an historical examination of the origin and progress of this clause substantially the same, as that given above. After perusing it, I perceive no reason to change the foregoing, reasoning. In one respect, Mr. Madison seems to labour under a mistake, viz. in supposing, that the proposition of the 25th of August, to add to the power to lay taxes, as previously amended on the 23d of August, the words, "for the payment of the debt and for defraying the expenses, that shall be incurred for the common defence and general welfare," was rejected on account of the generality of the phraseology. The known opinions of some of the states, which voted in the negative (Connecticut alone voted in the affirmative) shows, that it could not have been rejected on this account. It is most probable, that it was rejected, because it contained a restriction upon the power to tax; for this power appears at first to have passed without opposition in its general form.d It may be acceptable to the general reader to have the remarks of this venerable statesman in his own words, and therefore they are here inserted. After giving an historical review of the origin and progress of the whole clause, he says,
| "A special provision in this mode could not have been necessary for the debts of the new congress; for a power to provide money, and a power to perform certain acts, of which money is the ordinary and appropriate means, must, of course, carry with them, a power to pay the expense of performing the acts. Nor was any special provision for debts proposed, till the case of the revolutionary debts was brought into view; and it is a fair presumption, from the course of the varied propositions, which have been noticed, that but for the old debts, and their association with the terms, 'common defence and general welfare, ' the clause would have remained, as reported in the first draft of a constitution, expressing generally 'a power in congress to lay and collect taxes, duties, imposts, and excises;' without any addition of the phrase 'to provide for the common defence and general welfare.' With this addition, indeed, the language of the clause being in conformity with that of the clause in the articles of confederation,
it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is sufficient reason to
suppose, that the terms in question would not have been introduced, but for the introduction of the old debts, with which they happened to stand in a familiar, though inoperative, relation. Thus introduced, however, they pass undisturbed through the subsequent stages of the constitution.
"If it be asked, why the terms 'common defence and general welfare,' if not meant to convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the answer is at hand, that although it might easily have been done, and experience shows it might be well, if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by identity with the harmless character attached to it in the instrument, from which it was borrowed. "But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace, not only all the powers particularly expressed, but the indefinite power, which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labour was employed in enumerating the particular powers. and in defining and limiting their extent? "The variations and vicissitudes in the modification of the clause, in which the terms 'common defence and general welfare' appear, are remarkable; and to be no otherwise explained, than by differences of opinion, concerning the necessity or the form of a constitutional provision for the debts of the revolution; some of the members, apprehending improper claims for losses by depreciated bills of credit; others, an evasion of proper claims, if not positively brought within the authorized functions of the new government; and others again, considering the past debts of the United States, as sufficiently secured by the principle, that no change in the government could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation. "But, it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms 'common defence and general welfare,' unless we were so to understand the proposition containing them, made on August 25th, which was disagreed to by all the states, except one. "The obvious conclusion, to which we are brought, is, that these terms, copied from the articles of confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution. "If the practice of the revolutionary congress be pleaded in opposition to this view of the case, the plea is met by the notoriety, that on several accounts, the practice of that body is not the expositor of the 'articles of confederation.' These articles were not in force, till they were finally ratified by Maryland in 1781. Prior to that event, the power of congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of the body held their seats during pleasure, as its acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the slates; and as its general impotency become manifest. Examples of departure from the prescribed rule are too well known to require proof. The case of the old bank of North America might be cited, as a memorable one. The incorporating ordinance grew out of the inferred necessity of such an institution to carry on the war, by aiding the finances, which were starving under the neglect or inability of the states to furnish their assessed quotas. Congress was at the time so much aware of the deficient authority, that they recommended it to the state legislatures to pass laws giving due effect to the ordinance, which was done by Pennsylvania and several other states. "Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published s small pamphlet, entitled 'Considerations on the Bank of North America,' in which he endeavored to derive the power from the nature of the Union, in which the colonies were declared and become independent states; and also from the tenor of the articles of confederation' themselves. But what is particularly worthy of notice is, that with all his anxious search in those articles for such a power, he never glanced at the terms, 'common defence and general welfare,' as a source of it. He rather chose to rest the claim on a recital in the text, 'that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress,' which he said implied, that the United States had general rights, general powers, and general obligations, not derived from any particular state, nor from all the particular states, taken separately, but 'resulting from the union of the whole;' these general powers, not being controlled by the article declaring, that each state retained all powers not granted by the articles, because 'the individual states never possessed, and could not retain, a general power over the others.' "The authority and argument here resorted to, if proving the ingenuity and patriotic anxiety of the author, on one hand, show sufficiently on the other, that the terms, 'common defence and general welfare,' could not, according to the known acceptation of them, avail his object. "That the terms in question were not suspected in the convention, which formed the constitution, of any such meaning, as has been constructively applied to them may be pronounced with entire confidence. For it exceeds the possibility of belief; that the known advocates in the convention for a jealous grant, and cautious definition of federal powers, should have silently permitted the introduction of words or phrases, in a sense rendering fruitless the restrictions and definitions elaborated by them. "Consider, for a moment, the immeasurable difference between the constitution, limited in its powers to the enumerated objects; and expanded, as it would be by the import claimed for the phraseology in question. The difference is equivalent to two constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever. For what is the case, that would not be embraced by a general power to raise money; a power to provide for the general welfare; and a power to pass all laws necessary and proper to carry these powers into execution; all such provisions and laws superseding at the same time, all local laws and constitutions at variance with them? Can less be said, with the evidence before us, furnished by the Journal of the Convention itself, than that it is impossible, that such a constitution, as the latter, would have been recommended to the states by all the members of that body, whose names were subscribed to the instrument? "Passing from this view of the sense, in which the terms, 'common defence and general welfare,' were used by the framers of the constitution, let us look for that, in which they must have been understood by the conventions, or rather by the people, who. through their conventions, accepted and ratified it. And here the evidence is, if possible, stilt more irresistible, that the terms could have been regarded, as giving a scope to federal legislation, infinitely more objectionable, than any of the specified powers, which produced such strenuous opposition, and calls for amendments, which might be safeguards against the dangers apprehended from them. "Without recurring to the published debates of those conventions. which, as far as they can be relied on for accuracy, would, iris believed, not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the conventions, as considered the powers granted to the government, too extensive, or not safely defined. "Besides the restrictive and explanatory amendments to the text of the constitution, it may be observed, that a long list was premised under the name, and in the nature of 'Declaration of Rights;' all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number and nature of the amendments, proposed to be made specific and integral part, of the constitutional text. "No less than seven states, it appears, concurred in adding to their ratifications a series of amendments, which they deemed requisite. Of these amendments, nine were proposed by the convention of Massachusetts; live by that of South Carolina; twelve by that of New Hampshire; twenty by that of Virginia; thirty-three by that of New York; twenty-six by that of North Carolina; and twenty-one by that of Rhode Island. "Here are a majority of the states, proposing amendments, in one instance thirty-three by a single state; all of them intended to circumscribe the power granted to the general government, by explanations, restrictions, or prohibitions, without including a single proposition from a single state referring to the terms, 'common defence and general welfare;' which, if understood to convey the asserted power; could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range, titan all the powers objected to, put together, And that the terms should have passed altogether unnoticed by the many eyes, which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted, that the terms were harmless, because explained and limited, as in the 'articles of confederation,' by the enumerated powers, which followed them. "A like demonstration, that these terms were not understood in any sense, that could invest congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of congress, when the subject of amendments was taken up, with the conciliatory view of treeing the constitution from objections, which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms, 'common defence and general welfare,' unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congress show, that in tile progress of the discussions not a single proposition was made in either branch of the legislature, which referred to tile phrase, an admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members, who belonged to the part of the nation, which called for explanatory and restrictive amendments, and who had been elected, as known advocates for them, cannot be accounted for, without supposing, that the terms, 'common defence and general welfare,' were not, at that time, deemed susceptible of any such construction, as has since been applied to them. "It may be thought, perhaps, due to the subject, to advert to a letter of October 5th, 1787, to Samuel Adams, and another of October 16th, of the same year, to the governor of Virginia, from R.H. Lee, in both of which it is seen, that the terms had attracted his notice, and were apprehended by him 'to submit to congress every object of human legislation.' But it is particularly worthy of remark, that although a member of tile senate of the United States, when amendments to the constitution were before that house, and sundry additions and alterations were there made to the list sent from the other, no notice was taken of those terms, as pregnant with danger. it must be inferred, that the opinion Formed by the distinguished member, at the first view of the constitution, and before it had been fully discussed and elucidated, had been changed into a conviction, that the terms did not fairly admit the construction he had originally put on them; and therefore needed no explanatory precaution against it." |
d. Journal of Convention, p. 220, 257, 284, 291.
42. See The Federalist, No. 21, 30.
43. 1 Tucker's Black. Comm. App. 235 et seq.; Id. 244, 245.
44. The Federalist, No. 30.
45. Id.
46. The Federalist, No. 31; Id. No. 30; Id. No. 21.
47. The Federalist, No. 30.
48. The Federalist, No. 21.
49. The Federalist, No. 34; 1 Elliot's Debates, 77 to 89; Id. 303 to 308; Id. 309, 311 to 316, 321 to 329; Id. 337; 2 Elliot's Debates, 95, 96, 118; Id. 198 to 204; 3 Elliot's Debates, 261, 262, 290; 3 Amer. Museum 334, 338; 1 Tucker's Black. Comm. 234 235 236.
50. The Federalist, No. 31; 1 Ellot's, Debates, 77, 78 to 89; Id. 91, 105, 112; Id. 293, 294 to 296; Id. 301, 302, 303; Id. 329 to 333; 2 Elliot's Debates. 52, 51, 208; 3 Elliot's Debates, 77 to 91; 1 Tuck. Black. Comm. App. 240; 2 Amer. Museum, 543, 544.
51. 3 Amer. Museum, 423; 2 Elliot's Debates, 52, 53, 200, 206.
52. See The Federalist, No. 30; 1 Elliot's Debates, 294; 1 Tucker's Black. Comm. App. 234, 235; 1 Elliot's Debates, 294, 295; 2 Elliot's Debates, 52, 53, 111, 112; Id. 200, 206, 208. -- It was moved in the convention, that whenever revenue was required to be raised by direct taxation, it should be apportioned among the states, and then requisitions made upon the states to pay the amount; and in default only of their compliance, congress should be authorized to pass acts directing the mode of collecting it. But this proposition was rejected by a vote of seven states against one, one state being divided. Journal of the Convention, p. 974.
53. The Federalist, No. 30; 1 Elliot's Debates, 303, 304; Id..325, 326, 327; 2 Elliot's Debates, 195, 199, 204.
54. The Federalist, No. .21; 1 Elliot's Debates, 81, 82; 2 Elliot's Debates, 105; Id. 199, 204, 296; 1 Tucker's Black. Comm. App. 234, 235; 236; Dull. R. 171, 178.
55. The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306.
56. The Federalist, No. 30, 34. --"A government," (said one of our most distinguished statesmen, Mr. Ellsworth, of Connecticut, speaking on this very subject,) "which can command but half its resources, is like a man with but one arm to defend himself." Speech in Connecticut Convention, 7th January, 1788; 3 Amer. Museum, 338.
57. The Federalist, No. 30.
58. The Federalist, No. 80.
59. The Federalist, No. 34.
60. 3 Elliot's Debates, 290.
61. In the recent war, of 1812-1813, between Great Britain, and the United States, we had abundant. proofs of the correctness, of this reasoning. Notwithstanding the duties upon importations were doubled; from the naval superiority of our enemy, our government, were compelled to resort to direct, and internal taxes, to land taxes and excises; and even with all these advantage, it is notorious, that the credit of the government sunk exceedingly low, during the contest; and the public securities were bought and sold, under the very eyes of the administration, at a discount of nearly fifty per cent, from their nominal amount. Nay, at one time. it was impracticable to borrow any money upon the government credit. This event. (let it be remembered,) took place, after twenty years, of unexampled prosperity of the country. It is a sad, but solemn admonition.
62. The Federalist, No. 35.
63. The Federalist, No. 31.
64. The Federalist, No. 31, 32. 2 The Federalist, No. 32. See Gibbons v. Ogden, 9 Wheat. R. 1, 199 to 902. 1 Kent's Comm. Lect. 18, p. 363, 367, 368, 369. -- This subject has been already considered in these Commentaries, in the rules of interpretation of the constitution; and a very important illustration, in the Federalist, No. 32, on this very point of taxation, was cited there. It seems, therefore, wholly unnecessary to repeat the reasoning. See also 4 Wheaton's R. 193, 316; 5 Wheaton's R. 22, 24, 28, 45, 49; 9 Whea-ton's R. 199, 210, 238; 12 Wheaton's R. 446.
65. The Federalist, No. 32, 36. See also 3 American Museum, 338, 341; 1 Elliot's Deb. 307, 308; Id. 315, 316; Id. 321 to 323; 2 Elliot's Deb. 198 to 204; M'Culloch v. State of Maryland, 4 Wheat. R. 316, 433 to 436; 9 Wheaton's R. 199, 200; 201; 12 Wheaton's R. 448. -- Whether a state can tax an instrument, created by the national government, to ac-complish national objects, will be hereafter considered.
66. The Federalist, No. 33, 36; 1 Elliot's Deb. 307, 308; Id. 321, 322.
67. The Federalist, No. 34; 4 Tucker's Black. Comm. App. 234, 235, 236.
68. The Federalist calculated, that. the highest probable sum, required for the ordinary permanent expenses of any state government, would not exceed a million of dollars. But that of the Union, it was supposed, could not be susceptible of any exact measure. The Federalist, No. 34.
69. The Federalist, No. 35, 36; 1 Elliot's Deb. 297 to 300 ; Id. 309 to 313. 1 Tucker's Black. Comm. App. 237, 238; 2 Elliot's Deb. 98; Id. 185, 186 to 188; Id. 201, 202, 203; Id. 232, 236; 3 Elliot's Debates, 77 to 91.
70. The Federalist, No. 35, 36, 41, 45; 1 Tucker's Black. Comm. App. 244, 245.
71. The Federalist, No 36; 2 Elliot's Debates, 52, ,53, 70; Id. 208; 3 Elliot's Debates, 262, 263; 2 American Museum, 543.
72. The Federalist, No. 36; 3 American Museum, 338, 341; 1 Elliot's Deb. 81, 293, 294, 300 to 302; Id. 337, 338; 2 Elliot's Deb. 98; Id. 198 to 204.
73. See Mr. Ellsworth's Speech, 3 American Museum, 338, 340.
74. 1 Elliot's Debates, 90, 91.
75. 1 Tuck. Black. Comm. App. 234 to 238; The Federalist, No. 12, 21, 36; 1 Elliot's Debates, 61, 62; 2 Elliot's Debates, 105; 11 Elliot's Debates, 77 to 91; 8 Journ. of Continent. Congress, 16th Dec. 1782, p. 203
76. 2 Elliot's Debates, 197 to 204; Id. 208, 232, 235; 3 Elliot's Debate, 77, 91.
77. Ibid.
78. 1 Tuck. Black. Comm. App. 246.
79. See 2 Stuart's Polit. Econ. 485; 1 Tuck. Black. Comm. App. 232; 1 Black. Comm. 308; 3 Dall. R. 171; Smith's Wealth of Nations, B. 3, ch. 3, B. 5, ch. 2, P. 1, P. 2, art. 4.
80. The Federalist, No. 21, 36, 1 Tuck. Black. Comm. 233, 238, 239; Smith's Wealth of Nations, B. 5, ch. 3, Pt. 2, art. 1 and 2, and App.
81. Loughborough v. Blake, 5 Whteat. R. 317, 318, 319.
82. Journal of Convention, 220.
83. Hylton v. United State, 3 Dall. 171, 174.
84. Hylton v. United States, 3 DalI. R. 171.
85. 1 Smith's Wealth of Nations, B. 5, ch. 2, P. 2.
86. Smith's Wealth of Nations, B. 5, ch. 2, P. 2, art. 1, 2, 3, 4.
87. See The Federalist, No. 86.
88. Smith's Wealth of Nations, B. 4, ch. 1, P. 3, B. 5, oh. 2, art. 4; Hale on Customs, Harg. Tracts, p. 115, etc.; 1 Black. Comm. 313, 314, 315, 316; Com. Dig. Prerogative, D. 43 to D. 49.
89. The Federalist, No. 30; 3 Elliot's Debates, 289.
90. Mr. Madison is of opinion. that the terms, imposts, and duties, in these clauses, are used as synonymous. There is much force in his suggestions. Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
91. 1 Black. Comm. 315; Hale on Customs, Harg. Law Tracts, p. 3, ch. 7, ch. 14, ch. 15.
92. 1 Tuck. Black. Comm. App. 243.
93. Mr. Justice Patterson in Hylton v. U. States, 3 Dall. R. 171,177.
94. Mr. Justice Chase, Ibid. 174. See The Federalist, No. 36.
95. 1 Black. Comm. 318; 1 Tuck. Black. Comm. App. 341; Smith's Wealth of Nations, B. 5, ch. P. art. 4; 2 Elliot's Debates, 209; 3 Elliot's Debates, 289, 290.
96. See 2 Smith's Wealth of Nations, B. 5, ch. 2, art. 4; The Federalist, No. 36; 2 Elliot's Debates, 209.
97. 1 Tuck. Black. Comm. App. 232, 233; Hylton v. United States, 3 Dall. R. 171; The Federalist, No. 21; Loughborough v. Blake, 5 Wheat. R. 317 to 395.
98. The Federalist, No. 31, 36.
99. Act of 1794, ch. 45.
100. 3 Dallas's Reports, 571.
101. 3 Dallas's Reports, 171; Rawle on Const. ch. 9; 4 Elliot's Deb. 242; 1 Kent's Comm. Lect. 12, p. 239, 240; 1 Tuck. Black. Comm. App. 294.
102. See 4 Elliot's Deb. 235, 236.
103. See the exposition and protest, reported by a committee of the house of representatives, of South Carolina, on 19th of December, 1829, and adopted; the draft of which has been attributed to Mr. Vice President Calhoun. I have followed, as nearly as practicable, the very words of the report.
104. This is extracted from the address of the Free Trade Convention, at Philadelphia, in Oct. 1831, p. 33, 34, attributed to the pen of Mr. Attorney General Berrien. Mr. Senator Hayne, in his Speech, 9 January, 1832, says, that he does not know, where the constitutional objections to the tariff system are better summed up, than in this address, (p. 31, 32.)
105. Col. Drayton's Oration, at Charleston, 4th of July, 1831, p. 11, 14.
106. Hamilton's Report on Manufactures, in 1791.
107. See Mr. Jefferson's Report on Commercial Restrictions, in 1793; 5 Marshall's Life of Washington, ch. 7, p. 482 to 487; 1 Wait's State Papers, 422, 434.
108. See Smith's Wealth of Nations, B. 5, oh. 2, art. 4.
109. See Hamilton's Report on Manufactures, in 1791; 1 Hamilton's Works, (edit. 1810,) 230; 2 Elliot's Debates, 344.
110. See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
111. The present Commentaries were written before the appearance of Mr. John. Q. Adams's Letter to Mr. Speaker Stevenson, in 1832. That Letter (as has been already intimated) contains a very able and elaborate vindication of the power to lay taxes, as extending to all purposes of the common defence and general welfare. It is the fullest re-sponse to the Letter of Mr. Madison to Mr. Speaker Stevenson, 27th Nov. 1830, which has ever yet been given.
112. See Virginia Resolutions, 7th Jan. 1800; Mr. Madison's Letter to Mr. Speaker Stevenson, 27th Nov. 1830. See also 4 Elliot's Debates, 280, 281; 2 Elliot's Debates, 344.
113. The following summary, taken from President Madison's Veto Message on the Bank Bonus Bill for Internal Improvements, 3d March, 1817,e contains a very clear statement of the reasoning. "To refer the power in question," (that is, of constructing road, canals, and other internal improvements,)" to the clause, to provide for the common defence and general welfare, would," says he, "be contrary to the established rules of interpretation, as rendering the special and careful enumeration of powers, which follow the clause, nugatory and improper. Such a view of the constitution would have the effect of giving to congress a general power of legislation, instead of the defined and limited one; hitherto understood to belong to them; the terms, 'the common defence and general welfare,' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the constitution and laws of the several states, in all cases not specifically exempted, to be superceded by the laws of congress; it being expressly declared, that the constitution of the United States, and the laws made in pursuance thereof, shall be the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. Such a view of the constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the general and state governments; inasmuch as questions relating to the general welfare, being' questions of policy and expediency, are unsusceptible of judicial cognizance and decision. A restriction of the power 'to provide for the common defence and general welfare,' to cases, which are to he provided for by the expenditure of money, would still leave within the legislative power of congress all the great and most important measures of government, money being the ordinary and necessary means of carrying them into execution." It will be perceived at once, that this is the same reasoning insisted on by Mr. Madison in the Virginia Report and Resolutions, of 7th Jan. 1800; and in his Letter to Mr. Speaker Stevenson, of 27th Nov. 1830; and by the same gentleman in the Debate on the Cod-fishery Bill, in 1792. 4 Elliot's Debates, 236.
e. 4 Elliot's Debates, 280, 281.
114. Mr. Madison's Letter to .Mr Speaker Stevenson, 27th Nov. 1830.
115. Mr. Hamilton.
116. There is no doubt, that President Washington fully concurred in this opinion, as his repeated recommendations to congress of objects of this sort, especially of the encouragement of manufactures, or learning, of a university, of new inventions, of agriculture, or commerce and navigation; of a military academy, abundantly prove. See 5 Marshall's Life of Washington, ch. 4, p. 231, 232; 1 Wait's State Papers, 15; 2 Wait's State Papers, 109, 110, 111.
117. It would be impracticable to enumerate all these various objects of appropriation in detail. Many of them will be found enumerated in President Monroe's Exposition, of 4 of May, 1822, p. 41 to 45. The annual appropriation acts speak a very strong language on this subject. Every president of the United States, except President Madison, seems to have acted upon the same doctrine. President Jefferson can hardly be deemed an exception. In his early opinion, already quoted, (4 Jefferson's Corresp. 521,) he manifestly maintained it. In his message to congress, (2 Dec. 1806,)f he seems to have denied it. In signing the bill for the Cumberland Road, on 29th March, 1806,g he certainly gave it a partial sanction, as well as upon other occasions. See Mr. Monroe's Exposition, on 4th May, 1822, p. 41. But see 4 Jefferson's Corresp. 457, where Mr. Jefferson adopts an opposite reasoning. President Jackson has adopted it with manifest reluctance; but he considers it as firmly established by the practice of the government. See his veto message on the Maysville Road bill, 27 May, 18:10, 4 Elliot's Deb. 333 to 335. The opinions maintained in congress, for and against the same doctrine, will be found in 4 Elliot's Deb. 236, 240, 265, 278, 280, 284, 291, 292, 332, 334. Report on Internal Improvements, by Mr. Hemphill, in the house of representatives, 10 Feb. 18:11. See 1 Kent. Comm. Lect. 12, p. 250, 251 , Sergeant's Const. Law: ch. 98, p. 311 to 314; Rawle on the Const. ch. 9, p. 104; 2 United States Law Jour. April, 1826, p. 251, 264 to 282.
f. Wait's State Papers, 457, 458.
g. Act of 1806, ch. 19.
118. See act of 12 Feb. 1794, ch. 2; Act of 8 May, 1812, ch. 79; 4 Elliot's Debates, 240.
119. See act of congress, of 16 Feb. 1792, ch. 6; 4 Elliot's Debates, 234 to 238; Act of 1813, ch. 34. See also Hamilton's Report on Manufactures, 1791, article, Bounties. -- The Speech of the lion. Mr. Grimke, in the senate of South Carolina, in Dec. 1828, and of the Hon. Mr. Huger, in the house of representatives of the same state, in Dec. 1830, contain very elaborate and able expositions of the whole subject, and will reward a diligent perusal.
120. The Federalist, No. 21, 36, 54; 3 Dall. R. 171, 178; 1 Tucker's Black. Comm. App. 236, 287; 2 Elliot's Deb. 208 to 210; 3 Elliot's Debates, 290; 3 Amer. Museum, 424; 2 Elliot's Deb. 338.
121. 8 Journal of Continental Congress, 184, 188, 198.
122. The Federalist, No. 21.
123. The Federalist, No. 21.
124. 1 Black. Comm. 312, 313.
125. See the remarks of Mr. Justice Patterson, in Hylton v. United States, 3 Dall. 171, 178, 179.
126. 1 Tuck. Black. Comm. App. 234, 235, and note; Id. 236, 237; 2 Dall. R. 178, 179; Federalist, No. 21, 36; 2 Elliot's Deb. 208 to 2210.
127. Act of 27 Feb. 1815, ch. 213.
128. Loughborough v. Blake, 5 Wheaton's, R. 317; Sergeant on Const. Law, ch. 28, p. 290; 1 Kent. Comm. Lect. 12, p. 241.
129. Rawle on the Constitution, ch. 10, p. 115, 116.
130. Journ. of Convention, 293, 294; Sergeant on Const. Law, oh. 28, p. 346; United States v. Brig WiIliam, 2 Hall's Law Journal, 255, 259, 260; Rawle on the Const. ch. 10. p. 116; 1 Jefferson's Corresp. 104 to 106, 112.
131. Reeves on Shipping, 28, 36, 47, 49, 52 to 105; Id. 491, 492, 493; Burke's Speech on American Taxation, in 1774; 1 Pitk. Hist. ch. 3, p. 91 to 106.
132. Journ. of Convention, 272, 275.
133. Id. 275, 276.
134. Journ. of Convention, 301, 318; Id. 377, 378.
135. 1 Tuck. Black. Comm. App. 252, 253; Id. 294.
136. Brown v. Maryland, 12 Wheat R. 449.
137. Journ. of Convention, 227, 303.
138. Id. 303, 304.
139. Journ. of Convention, 359, 380, 381. See 2 American Museum, 534; Id. 540.
140. The Federalist, No. 44; 1 Tuck. Black. Comm. App. 252, 313. See also 2 Elliot's Debates, 354 to 356; Journ. of Convention, 294, 295.
141. Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 206, 210, 235, 236, 311; Brown v. Maryland, 12 Wheat. R. 419, 438, 439, 440.
142. The Federalist, No. 7, 22.
143. Gibbons v. Ogden, 9 Wheat. R. 1, 199, 200, 201; Brown v. Maryland, 17 Wheat. R. 446, 447.
144. Act of 2d April, 1790, ch. 5; Act of 2d. March, 1799, ch. 128, § 93.
145. Brown v. Maryland, 12 Wheat. R. 419; The Federalist, No. 278.
146. The opinion also proceeded to declare, that the act was a violation. of the exclusive power of congress to regulate commerce. But the examination of this part of the question properly belongs to another head.
147. McCulloch v. State of Maryland, 4 Wheat. R. 316; 1 Kent's Comm. Lect. 19, p. 398; Id. 401.
148. The doctrine was again re-examined by the Supreme Court in a later case, and deliberately re-affirmed; Osborn v. Bank of the United States, 9 Wheat. R. 738, 859 to 868; 1 Kent's Comm. Lect. 12, p. 235 to 239.
149. Weston v. The City Council of Charleston, 2 Peters's R. 449.
150. 4 Wheaton, 316.