exercise no power, which may not, by a liberal and rational construction, be referred, either directly, or by fair implication, to one or another of these objects.

Thus far, we are substantially agreed. But here begins the ground of difference between us. Or rather, here is the point at which, as it seems to me, you leave the ground altogether, and ascend into the mists and fogs of the atmosphere. You maintain, that every thing in the Constitution, respecting the powers of the Government, is to be restricted to the narrowest sense it will bear--that no powers are to be regarded as passing by implication; or, at least, none but such as are absolutely necessary to render the clause containing the grant intelligible-those, without which the grant would be quite unavailing and nugatory. This is, I conceive, the fair purport of all your statements and reasonings on the subject.

I maintain, on the contrary, that these specific grants of powers are to be liberally and practically interpreted; that we are to apply to them the canons of the Statesman's criticism, not those of the mere Lawyer's or Metaphysician's; and that all powers are to be considered as implied, which can fairly be regarded as requisite to the accomplishment of the great objects, and the discharge, in the most beneficial manner, of the high obligations of the Government. I maintain, that no construction less liberal than this, will satisfy the exigency of the case; will be adequate to the purposes which the people must be supposed to have had in view, when they created our form of polity. The framers of the Constitution were too wise to attempt what was manifestly impracticable. They well knew that they could do no more than prescribe the general course to be pursued, and point out the general objects to be accomplished. The best and most judicious means of effecting these objects, they well knew, could not be either foreseen or enumerated. They well knew, that these must often be left to be suggested by the circumstances of the times, and the emergencies of the particular case. Hence the necessity-the absolute necessity--for discretionary powers to be vested in the agents of the public will: And that such powers were intended to be so vested; that it was never intended to tie up the hands of these agents by a rigorous and captious interpretation of the Constitution, I infer likewise, from the liberal import of what you call the "general phrases" in this instrument. These phrases were not introduced without a meaning. The men who employed them had an object in so doing; and it is but common courtesy, not to say decency, to suppose, that this object was a fair and direct one. We are bound to believe that they did not mean, under the disguise of an apparent enlargement, to introduce a real restriction on the operations of the Government. But were it proved, that such was their intention, and that, in order to effect it, they introduced among the enumerated powers, a clause meant to operate as a prohibitory and restrictive one; we are not bound by their intentions, but by the obvious import of their language. Any arguments, therefore, drawn from the records of the Convention, which would go to set aside the received and settled construction of any part of the Constitution, are of no value whatever. Such arguments come too late. At this time of the day, surely, the intentions of the Convention, further than they appear in the instrument itself, are of no sort of consequence. Arguments of

this sort--and they constitute the whole strength of your case--are of the nature of parole testimony, adduced to set aside the specifications of a bond. We must then take these phrases as we find them, and allow them a force and efficacy, adequate to the terms employed. If we do this, we shall perceive, that they conspire strongly with the reason of the thing a priori, as well as the broad and expressive terms of the preamble to the Constitution, to show, that it was the intention of the people to devolve on the National Government the charge of all the general interests of the Republic, and to vest it with powers adequate to this charge. It never could have been their intention, that any great beneficial object should not be attained, because the Constitution had made no specific provision for the case. It could never have been designed, that in case of any emergency, for which--and there are many such in the course of human affairs-no forecast could provide, the Government should stand idle and inactive, because "the file afforded no precedent.'

An instance or two, will clearly display the wide difference, in a practical view, between the two systems of interpretation. On my principles, if it should appear that a military road was requisite for the public defence and security; that it was a wise and judicious measure to be adopted for this purpose, I should feel no scruple on the ground of constitutionality. I should refer it at once to the general power of providing for the public defence. On your principles, were the wisdom of the measure ever so obvious, and the necessity ever so urgent, it could not be done. So in the case of a National Bank. Show me that such an institution will conduce to the public interest in a variety of ways, and I shall perceive that it has a reference, plain and fair enough, to several of the specified powers of the Government, to justify its adoption. On your principles, it could not be created, though it were vital to the public welfare, because you could not find it so denominated in the bond.' So with regard to the protection of manufactures. Convince me that the true interests of the country require a change in our commercial regulations, calculated to give to our own manufacturers a preference in our own markets-a policy, by the way, adopted by every civilized nation of the world--and I maintain that the power, and the duty, also, of the Government to effect such a change, is as clear as the sun in the Heavens. On your principles, such a step would be usurpation and tyranny,' to be resisted even to the point of civil war. Were the nations of Europe--they have done it for years past-virtually to exclude from their ports the staple products of fifteen states in the union, still the Government cannot adopt a single countervailing measure. No general interest,' according to the definition of Brutus, is concerned. Should they lay a prohibitory duty--which they may do at any time-on the staples of the other nine states, still our Cotton. and Rice must perish on our hands. All these mighty interests are local merely; and a thousand local interests can never make a general one. Congress has no right to legislate in the case. Local interests

are to be fostered by the States alone; and these are expressly forbidden to meddle with commercial subjects at all. There is, therefore, no remedy to be had from any quarter. No matter, that new tariff regulations would, demonstrably, and in the judgment of all, tend to relieve the embarrassments, and raise up the prostrate interests of the whole

community; they could not be adopted; the Government could take no measures to exclude foreign fabrics from our markets, lest these measures should operate to build up a manufacturing power in our own country; and thus come within the ban of Brutus, and the Legislature of the State. Such is the practical operation of the principles you labour to establish. They fetter the Government, and prevent it from acting in cases involving the most important interests of the commonwealth.

These principles of construction are the natural result of the views you take of the origin and character of our Government. Could I believe that the Constitution was a mere compact between sovereign States; that its powers were given it in trust by the States, as such; that it was created by them, and responsible to them, I could readily admit these principles to be correct. But I have already shown that these views are erroneous. It were not to be expected that you should correctly interpret an instrument, the character of which you so misapprehended.

With these general reasonings, I might dismiss this part of the subject. To men of sound common sense it were sufficient to say, that views of the Constitution, and principles of construction, leading to such results as I have mentioned above, could not be correct. It were sufficient to say, in order to ensure their rejection, what has been clearly proved; that these views and principles are in direct contradiction to those of the highest names our country can boast; and to the settled course of the Government from the very first; and that, if they had obtained, they would have prevented the accomplishment of almost every great object which the Government has ever effected. But I shall not rest the argument here. In my next number, I shall proceed to examine your criticisms on some of these general phrases.

NO. XX.

The

In the Constitution, at the close of the section containing the specification of the powers of Congress, I find the following clause:-"And to make all laws necessary and proper for carrying into execution the foregoing powers," &c. Now, to a plain man, satisfied with seeing what is to be seen, one would think nothing could be plainer than this. There is not an obscure or ambiguous word in the sentence. meaning of the whole, shines out like the sun in a cloudless sky. It is a plain, simple, declaratory clause; declaratory of the fact, that the Government was vested with full power to employ, and, of course, to select, the proper means for carrying into execution the foregoing powIt followed the enumeration of the powers and duties of the Government, merely as a matter of course. It was introduced solely for the purpose of rendering unequivocal and express, what must, otherwise, have been taken by construction, and the exigency of the case. It was not intended to confer any new power not before enumerated; and was never understood to do so. Its object was, rather, to furnish the Government, if I may so say, with instruments to work with, in the performance of the duties enjoined on it.

ers.

But, plain as it is, it has been found practicable to subject it to the mystifying process of partisan logic. It was soon found to stand in the way of certain political views; and the ingenuity of those who entertained these views, was put in requisition to remove it. Mr. JEFFERSON, so far as my memory serves, first discovered, that it was to be considered as restrictive in its import. The discovery savours of the peculiar character of his intellect, which was subtle and ingenious, rather than solid. Ingenious, however, as he was, it was impossible for him to give more than an appearance of plausibility to such a dogma as this. It is sufficient to cast one's eye over the very statement, to satisfy any reasonable man, that it cannot be correct. The wonder is, that it could ever have been suggested and it is a still greater wonder, that it should be insisted on at this time of day. Such a system of interpretation would render the whole Constitution a puzzle, a series of conundrums. It might as well be read backwards as forwards.

The clause is shown to be affirmative by its position. If it had been intended to operate as a restriction, it would certainly have been transferred to the next section. It is affirmative in its whole form, texture and substance. There is not a word of negative import in it. If all this is not sufficient to determine its character, then nothing can be. Language is no longer a medium of thought; and when one asks for bread, he has no cause for wonder at receiving a stone. The days of Babel are come back upon us. When you will point out a clause in any instrument under Heaven, intended by the parties, avowedly, to limit, or narrow, powers, privileges, or grants of any kind, previously conveyed, introduced by the conjunction, And, and expressed throughout by words of an affirmative import, then I shall admit, that the reasoning employed by you and others on this point, is not absolutely unique.

Had the clause been intended to operate restrictively, it would, certainly, have assumed a different shape, something like the following: "But Congress shall not have power to pass unnecessary and improper laws for the purpose, &c." A most wise, pertinent and effective prohibition, truly. This is precisely the import assigned to this clause by Mr. JEFFERSON, and which you have adopted; and yet the very statement of it, in its proper form, renders it ridiculous. As if, without this redeeming clause, the Government would have had a constitutional right, which it has not now, to do unnecessary and impertinent things. But you have an argument of your own, to prove the restrictive nature of this clause. It is drawn from its history in the convention. In the original draft of Mr. PINKNEY, the phrase stood, "all laws," without the epithets "necessary and proper;" and you gravely affirm, that, if it had not been altered, Congress would have had power to pass" all laws whatever." Meaning of course-for you can mean nothing else, and, were you to write till doomsday, you could make nothing else of it-all laws, whether proper or improper, necessary or unnecessary. Had the original terms remained unaltered, Congress certainly might, in the estimation of those, who should take the word all by itself, and force it to express all that it ever can express, have had the power, verbally, to pass such laws. They might, for instance, have passed a law for constructing a military road to the moon, and another for draining off the Atlantic Ocean. But it should be borne in mind, that the Constitution was not framed by the inmates of Bedlam hospital, nor

for these; and in the estimation of sober men, the clause conveys, in effect, neither more or less power now, than in the original draft. It is merely rendered more full and clear. The words are now expressed, which before were and must have been understood. This is the sum of the whole matter.

Can you really persuade yourself, that if this clause had stood in the Constitution, as Mr. PINKNEY left it, " any man in his sober senses" would have felt himself authorised by it to contend for any wider exercise of discretion, on the part of Government, than he might in its present shape? If these terms, necessary and proper," are to be regarded as restrictive, what is it intended they should restrain? The discretion of the Government, certainly. From what are they to restrain the exercise of this discretion? From those objects and measures which are inconsistent with their own meaning, surely, that is, from objects and measures neither necessary nor proper. Did any one ever claim for the Government a right to the exercise of such a discretion? Would any one have made this claim had no such clause ever been inserted in the Constitution? Certainly not. No Government, under whatever name, can have a right to do wrong, whether limited by the provisions of a written Constitution or not. All Governments have the power, the physical and intellectual power, to decree unwise, unnecessary and improper measures, our own as well others; and if they have, likewise the disposition, they will hardly be checked in the exercise of this power by such futile restrictions as this. I say futile, for, allowing all your statements and reasonings on the subject to be quite correct, what, in a practical view, do they amount to? Just nothing at all. Admit that the framers of the Constitution had fallen into such a state of hallucination, as to suppose that by the insertion of these two words, they had provided for guiding and restraining the Government in the exercise of its discretionary powers. Are we on this account to forego the exercise of our common sense, which teaches us that the provision is, and must be, utterly nugatory? Is it not so? Is it possible to point out any practical operation which it can have? All agree, the wise and the unwise, the advocates for a liberal, no less than those for a close construction; that no laws ought to be passed but such as are necessary and proper, in the plain popular sense of these terms. The man lives not, and never has lived, who would tell you, that laws of an opposite character to these are, or could in any case, have been within the discretion of the Government. And yet what do we gain by this agreement? It does not advance us a single step towards ascertaining how broad or how narrow the discretion of the Government actually is. It never can do so; because these very terms, grant that they were intended to be restrictive, are as loose, as indefinite, and as incapable of being defined, as is the discretion which you say they were employed to restrict. There would, in any given case, have been just as much difficulty, and no more, in determining whether it fell fairly within the constructive powers of the Government, had this clause never been penned, than there now is in deciding whether it is, or is not, necessary and proper. This boasted expedient does not, and cannot limit or control the movement of the Government in the slightest degree. The only difference effected by it, is, as Colonel HAMILTON states it," to prevent cavil," by recognizing in express terms, what