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and property of the citizens of every State in the Union, and they erased that clause from the system."*

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 mean ing, 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 powers, 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 nunıber with the other two."

In order to test 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

* Yates' Debates, page 57.

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, according to the resolution, first—The powers granted to the old Confederation, already referred to. Se ondly-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 indi

vidual 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.

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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 these 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 AgricultureThough 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.

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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 negociation-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, upon 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 to 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.

22

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 NATIONAL University, at the seat of the Government of the United States." But the Committee reported against Post Roads, Military Roads, and against the Uni

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Mr. CLAY

To

versity. 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. and others, are of this opinion. But the construction is a wrong one. 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 estab lish 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 roads," it would be a waste of time in me, to say more on this point.

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The University was several times 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 pur pose. 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.

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