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 or 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 advanta ges, 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 on 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 reason

ing, 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 en~

large." 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, lieve, with the Supreme Court, that the terms of this clause, "purport to enlarge, und not to diminish the powers vested in the Government," or that it was not 66 a restriction on those already granted." In the words of the Supreme Court, I say, "it is too apparent for controversy."

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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.

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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 govern 'ment. 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.

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