With all due deference to the Supreme Court, I maintain, that the proper place for a clause, declaring the sense of the Convention, as to the powers which are to result from other powers, expressly and previously given, is at the end of the enumerated powers so given; nor, could the restricted sense, in which the Convention would have its views expressed in such a clause, make such an essential difference, as to have warranted the transfer of the clause from its position, to be placed amongst the limitations on the powers of Congresssome of which limitations, annihilate their powers on certain subjects. The design of the clause in question, was, not so to restrict, as almost to annihilate the rights of the National Legislature, as to its means of executing its powers, but simply to declare, that in the choice of its means, it must prescribe to itseif, necessary and reasonable bounds. The clause is declaratory, and is in its proper place. Had the original clause of Mr. PINCKNEY been adopted without alteration or amendment, there might have been some ground for the broad principle laid down by the Supreme Court, that "let it [the end] be legitimate, and within the scope of the Constitution, and certain means designed to be used, be appropriate, that the degree of the necessity is a question of legislative discretion alone." But, even then, I would submit, that the true exposition of such a clause, in reference to certain amendments in the instrument, and to the peculiar circumstances which gave rise to the Constitution, and which are anomalous in the history of the world, would have been, that Congress could only pass such laws as had a simple, a direct, a natural, and an obvious relation to the subjects on which they were to legislate; a relation, so plain, as to be generally acknowledged; not such a relation as is to be established by an ingenious construction. It cannot be conceived, that under a general authority, to pass laws for executing certain delegated powers, it was ever designed, that powers should be used as means, between which and the end proposed, there is a connection it is true, but the connection distant and not immediate, remote and not simple or direct. The construction must be such, as not to divest the States, of those numerous undefined powers, which they reserved to themselves, when they entered into the compact.

But no sooner does Mr. PINCKNEY's proposition come from the hands of the committee of detail, than the character of the declaratory clause becomes changed. It is not an immaterial change in phraseology-it is not a bare transposition of words, making no essential variation in the sense of a paragraph, that is here introduced. It is an alteration in substance. It alters and controls the sense of the whole clause. It causes that declaration which might have been taken in an unqualified, to be used in a restricted and a qualified sense. As largely as Congress might before have claimed the liberty of ranging in the wide and extensive fields of construction and implication, culling and gathering for the use or the ornament of the Government, their choicest fruits and fairest flowers, yet, now it is cautiously forbidden in its ranıbles, to touch any but those which, whilst they are essential to nourish and sustain in health, the great

body politic of the General Government, yet do not diminish the supply, which is to keep up the same healthy action in every individual member of the confederacy. The Chief Justice admits, that had the clause been in another place, and worded, "In carrying into execution the foregoing powers, and all others, &c. no laws shall be passed, but such as are necessary and proper," that in such case, the clause would have unquestionably been restrictive in form, as well as effect." Now, in the name of common sense, my fellow-citizens, where is the difference, between the case put by the Chief Justice, and the case, as it actually did occur in the Convention. A. in the Convention, proposes that Congress, in executing its powers, "shall pass all laws whatever." B. objects to it, unless the words necessary and proper," be substituted. The amendment of B. is adopted. Is not this precisely the same thing, as if the Convention had said, in executing your powers, you may pass laws, but such laws must be necessary and proper. Let us not quarrel about words, but 'look to the plain intents of men, as evidenced by their acts. The clause is a restriction, both in form and in effect. If there be any distinction, it is a distinction without a difference. The decision of the Supreme Court, in this view, is unsound. If the rights of sovereign States are to be wrested from them, and the supremacy of the General Government, to rest on principles, with no, more solid foundation than those promulgated by the Supreme Court, there is an end of the Feral Union. If Congress can create so great a corporation, and so tremendous a monied engine, in the hands of any Government, as a National Bank, and call it " a necessary and a proper law" for "collecting taxes," it will be in vain for us to say, that internal improvements and tariffs, and other systems of extortion and tribute, are not necessary and 66 laws proper to regulate commerce." If our people acquiesce in this, as sound law, there is no course left for us, but to submit and to be ruined.

NO. 10.

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

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Let me here premise the distinction, which must forever exist between the case of a people emerging from a state of revolution, without any government, and assembled to form one; and a case, where the people already are associated, in so many independent political communities, each having its own regular government. In

the one case, it is intended, ex necessitate rei, that all powers should be vested in their new rulers, with certain limitations. What is not here reserved as a bill of rights to the people, is clearly designed to be given. But, in the other case, where the people are governed in so many distinct sovereignties, and are willing to divide the sovereignty with a common head to direct the whole, it becomes necessary to state, not what powers are withheld, but what powers are given. In the first case, the powers given are general, with certain exceptions-in the second case, the powers are altogether special. In the one case, every thing that is not retained is actually surrendered-in the other, nothing can be claimed that is not clearly given. The tenth amendment, therefore, to the present Constitution, and the second article in the confederation, already quoted, were only declaratory clauses. To the States, or to the people, were reserved, as a matter of course, all powers which were not surrendered. There is no need to distinguish here between express and implied powers. Where any power is surrendered to a legislative body, the power to make the laws necessary to execute that power, is also surrendered. To these positions all men must give their unqualified assent.

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

But the Old Congress did possess implied powers, (that is as far as language could convey such power, and exercised them too,} and in a much greater degree than is given to Congress under the present Constitution. It had the "sole and exclusive right and pow-, er" of determining on peace and war: the sole and exclusive right and power, over the post-office, and over the regulation of coin, and every other subject confided to its government, without one single exception. In the present compact, there are no such words in the enumerated grants of power, excepting in that clause, which gives to Congress exclusive legislation at the Seat of Government, and over its forts, dock yards, &c. Were it not, that there are express limitations on the power of the States in other articles of the instrument,

who can doubt but that the power of the States, as to raising armies in peace, issuing coin, and laying impost and export duties would have been concurrent with Congress, on account of the grant of power in these cases not being "sole and exclusive." Even Mr. HAMILTON does not doubt, but admits it. [Fed. No. 32.] The power of the States, at this moment, to tax indefinitely, by excise, by stamps, or by any other duty, provided it be not on imports or exports,) though such taxes might even interfere with, and greatly embarrass the fiscal operations of the General Government, is according to the expositions in the Federalist, as unimpaired as ever. The decision of the Supreme Court admits that there is a concurrent jurisdiction in the States, in the article of taxation, though not to the extent to which Mr. HAMILTON is understood to maintain those doctrines. Mr. HAMILTON tells us [Fed. 33] that "though a tax for the use of the United States, would be supreme in its nature, and could not legally be opposed or controlled; yet, a law, abrogating or preventing the collection of a tax laid by the authority of a State, unless upon imports or exports,) would not be the supreme law of the land, but an usurpation of a power not granted by the Constitution." The State of Maryland no sooner taxed the Bank of the United States, under the above exposition, than the Supreme Court decides it to be unconstitutional.-A memorable triumph this of metaphysical learning over the plain intent of the Constitution.

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

Hence, the weakness of the argument, that, because the States under the old compact, retained every jurisdiction and right not expressly relinquished, that the Old Congress had no implied powers. The Congress could pretend to no implied powers, but what belonged to subjects acknowledged as within its sole jurisdiction, and the States retained, without dispute, all implied, as well as originalpowers, on subjects not given away by them. But the Old Congress did exercise implied powers. It is not necessary to cite the instances-one will be sufficient. It created and incorporated the Bank of North America, and as a measure indispensably necessary to the exigencies of the Union; and it passed, I believe, with

but one dissenting vote. The Supreme Court would not say this was not an implied power; nor can any one pretend that there was not a greater necessity for it than the present Bank. The indubitable fact is, that the Confederation would have died a quiet and a natural death, whether this magic word of the Supreme Court, this word "expressly" had been omitted or retained. In all the addresses of the Old Congress to the States-in all its appeals to their patriotism for a change of the articles of Confederation, (the last appeal, I believe, was in April 1783,) there is not a hint of its embarrassment, or its difficulties, as proceeding from the want of

It

implied powers. Its powers on the parchment, were as great and as paramount, as it could desire them to be on such subjects. But it wanted that, which gives life and vigour to every other power, and without whieh no Government can go on, to-wit-the power of raising money by taxing the people, instead of depending upon the States to raise its ways and means. This power of taxing it could not possibly exercise as an implied power, because, in the eighth article of the compact, there was an express provision that the States should supply the National Treasury. It was the want of a power to lay imposts of which it complained. had no power to regulate commerce. It solicited over and over again, that the States would permit it to lay certain imposts for a limited time, so as to produce some little certain revenue.Some consented, and others fettered their grants with such restrictions; New-York, particularly, as to make the power useless. It was in the situation, of the famous Confederacy of 1570 between the United Provinces, or rather in a worse situation, for there a small power to raise imposts was given. In that Confederacy, the States were not punctual in obeying the recommendations of the Common Council. Holland bore the burthen of that league, and so here some States paid three or four times their quotas. Two States, it was said, paid nothing. Holland settled her business in part, by marching an army into one of the provinces to compel payment. Our Old Congress had not the power of settling matters by the sword. It wanted money, and it had no power to tax; and had it taxed, it would not have been paid. The want of a power to regulate commerce, was the sole cause of the inefficiency of our old Government, and not the want of implied powers, as is asserted by the Supreme Court. This is history, and this is fact.

Why then does the Supreme Court say, that there is that in the articles of Confederation, which excluded incidental or implied powers? And why, in the second place, does it assert, that it is the omission of this word "expressly" in the tenth amendment "that leaves the question open, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other?" The question, I aver, is not more open by the omission, than it would have been by the insertion of the word. The Court might have known, that even if the powers of the Old Congress were not sole and exclusive, and, that the phrase there might have been so expressed, as to exclude the idea of implied