power considered, than from any doubt, that in fairness, any power could be claimed to appropriate money, except for the enumerated objects, most unfortunately admits, that if the words had been omitted, the taxing power would have been unlimited in every way.The eagle eye of Mr. M'DUFFIE, who, ere this, had not made a single movement to the right or to the left, perceives the opening in the enemy's line, and it is at this critical moment, that he advances with the whole force of his mighty intellect, and occupies a new position, only hinted at by his prototype, ALEXANDER HAMILTON, presenting himself in such views, as to strike his friends and his adversaries with amazement, and with consternation. "As the power under consideration, would have had no limit without the words 66 common defence and general welfare," it results of necessity," says Mr. M'DurFIE, "that we must look to these words alone, for the limitation ". He therefore sets out with the proposition, that the discretion of the Legislature is within its bounds, as long as its appropriations are for the general welfare; and, that he may not be in the difficulties of his colleagues, who, if they should fail to refer the exercise of sovereign power contended for, to some or other of the enumerated objects, must surrender at discretion, he carefully disclaims all pretensions to construct roads and canals, as an exercise of sovereignty: As a sovereign power, he considers the appropriating power as ending in itself. When the money is raised and appropriated, sovereignty, he says, ceases and whatever else is to be effected, if it cannot be done by the agency of money merely, it cannot be done at all. If the aid of any sovereign power be at all necessary, to effect the object to which the money is to be applied, he admits, that in such case, the appropriation cannot be made, without such power is found amongst the enumerated objects.

Mr. M'DUFFIE accordingly maintains, that the spending of the money, after it is appropriated by law, even if it be an hundred million of dollars, on roads to be opened with the consent of States, is no more an act of sovereignty, than the purchase of a horse, for a messenger of either house of Congress, would be an act of sovereignty, or the making of a road through a State by an individual, with the consent of the Legislature, would make that individual a sovereign. Now, to a man of plain sense, it would seem to be a matter of some consequence, as between a State and the United States, that when Congress opens a road through such a State, with its consent, it does not thereby exercise sovereignty, in that particular State, because no State would permit its sovereignty to be interfered with; but really and truly, to the people of the United States at large, it can make no difference, if a hundred million of dollars is to be expended, whether the expenditure of this vast treasure on roads, is, technically speaking, an act of sovereignty or not, because, if the appropriation can be constitutionally made, the money must come out of their pockets, if it be forthcoming at all. But to spend a hundred millions, under a power to appropriate it for the very purpose for which it is actually expended, is, at any rate, to possess a prodigious influence, even if it be not sovereignty. Mr. M'Dor

FIE's mode of stating the question, is therefore, most imposing; and those who desire to combat him on the ground of metaphysics, or who would not yield to him this position, that to effect any object, however important, by money merely, even if it be an hundred millions, is not to exercise sovereignty, must expect to be hors du combat. We must meet him then on other grounds.

Let us say, that he is correct, that to give a million of dollars towards a canal in a State, and with the consent of its Legislature, is not an exercise of sovereign power; and let us further admit his grand position, that the appropriating power has no limits, but the common defence and general welfare. There is yet more than one sophism in his entire argument. The first sophism consists in his supposing, that an unlimited power to raise money for the general welfare, is honestly executed, if the money be applied to the purposes of the Government, and not to local or State purposes. The only answer to this argument which I have met with, is that given by Mr. LEGARE, in his speech on Mr. PRIOLEAU'S resolutions, in our State Legislature, in 1825. Mr. LEGARE demonstrates, that a Government of limited powers, has no greater right to divert the funds of the Government, beyond the enumerated objects, because it has an unlimited power to appropriate for the general welfare, than a trustee who has an unlimited power by deed, to raise money on the trust estate, can divert those funds to any other purposes of the estate, than are expressed in the different trusts. Every lawyer knows, that a trustee may, under a general power, in a trust deed for that purpose, sell part of the trust estate, and he may apply the proceeds, to purposes which he may deen generally beneficial to the estate. In such a case, though the legality of the sale, and the appropriations could not be disturbed, yet, in equity, the trustee would be adjudged to have departed from his duty, as having abused the trust, and would be compelled to refund. So is it with the Government of the United States. It is a Government of sovereign, but of limited powers. These powers are conferred on it, to enable it to perform certain trusts. These trusts are defined with the utmost precision, in an instrument called the Constitution, but which is neither more nor less, than the great Trust Deed between the States and the United States. The General Government then, is a trustee, and the power which it receives from the States, is a power coupled with a trust. Would any lawyer say, that in construing the power of the Government, unaided by other lights to guide us, all the rules for construing powers, coupled with a trust, should be put aside; those rules, which are not merely the rules of common law, but of common sense. I should hope not. Is it reconcileable with common sense, that a power given by deed, by A to B. to mortgage the estate, and to apply the proceeds to the purposes of the trust estate, could authorize the appropriation to purposes, not specified or referable to any of the numerous trusts, with which the deed may abound. I should say not. Then, upon what principle, can a Government, instituted to effect certain national objects, which are clearly defined, appropriate the general means, placed in its hands, for a pur

pose, which it is admitted on the opposite side, has no relation to any of those objects. Such a Government may think proper to assume the principle, that the Government being National, it may effect objects which are National, though not enumerated. What is this but to say, that when the Convention precisely defined the purposes, for which we should be National, the Congress shall undertake to say, we shall also be National for other purposes.

To tax the people, that money may be appropriated beyond the enumerated objects, is a constitutional exercise of power, because the taxing power is unlimited. So is the sale of part of the estate by a trustee legal, because a power is given for that purpose. In either case, the money once appropriated, must remain so appropriated. But equity will adjudge the misapplication of the money, as an illegal act. It is an abuse of the trust. It would be no answer in Mr. M'DUFFIE, to repeat what he has already said, "that construe the Constitution as we will, our principal security must depend upon the discretion of Congress, and that we are not more exposed, by Congress appropriating its money at its discretion, under the taxing power, than if it were wastefully expended, with reference to any of the enumerated objects, where the discretion is admitted to be unlimited." The difference, however, is essential. A wasteful expenditure of money, in building fortifications, and raising armies and navies, when there may be no need of them, is not an unconstitutional act, any more than it is an illegal act, for a trustee, who is appointed to take care of an infant, to allow him so liberally, as to. enable him to run through his estate, and to come to ruin before he comes of age. In these cases, there is no relief, because it is money expended upon the objects of the trust, under an unlimited discretion so to do. The manner of executing the trust, is here matter of dis-. cretion. But very different is the case, where the discretion claimed to be exercised, is not as to the quantity of money, which is to be applied to a specific purpose, demanding such an application of money, but to the purpose itself of the application.

Congress cannot promote objects which are not enumerated, even where money alone can effect them. It is repugnant to the whole plan and spirit of the Constitution Is there no distinction between a discretion as to the quantity of means, or money, necessary to execute a particular trust, and a discretion as to the subject or trust, upon which money is to operate? The distinction, in my mind, is most manifest. The Constitution affords many examples of the one, but it furnishes none of the other. For instance, Congress can raise money to any amount, by taxes or by loans, whether the public exigencies require it or not. It can, in time of peace, as well as of war, raise troops, and build and equip frigates, without number.-It can coin money without end. It can appoint seven or seventy Judges of the Supreme Court. It may ordain and establish a hundred new inferior tribunals of Justice. All this Congress can do. But in doing all these things, it is still strictly within its own sphere. It may do wrong, but it does so at the expense of the people at large, considered as its constituents. It cannot possibly impinge upon, or interfere with,

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or affect in any manner, the sovereignty or concerns of the States, either directly or indirectly. Not only its powers are exercised within due bounds, and directed to their proper objects, but its influence too. Members of Congress are not forming schemes and projects to meddle with the concerns, and disturb the peace of their neighbours, indirectly, when they dare not do so directly. In short, the General Government, in thus exercising its discretion, remains what it was created for, and does not become a pragmatical, offensive, and dangerous power, the object of alarm and jealousy to the States. Its discretion is the only rule of its conduct. Such a discretion is indispensable to it, and it has it by the terms of the grant. But who can point to any clause in the Constitution, which gives the least discretion whatever, as to the SUBJECT, upon which the national legislation is to operate. The bare idea of the Government, being a Government of limited powers of legislation, one would suppose, would be a sufficient discouragement to any one, from undertaking so arduous a task. If we look at the instrument, the objects or subjects of legislation, are all enumerated. The very specification of the objects, on which the legislative power is to operate, ex vi termini, excludes the idea of discretion, as to any object, not included in such specifiation. If there is to be discretion, the very object of the enumeration is defeated. It was wisely ordained by the Convention, that the subjects for the legislative powers of Con-. gress, should be fixed and settled, and that there should be no discretion in Congress, as to what subjects it should, or should not legislate on. For what is discretion? According to the opinion of one of the greatest men, who ever sat on the English Bench, "Discretion is the law of TYRANTS." In the best of men, it is sometimes folly, oftentimes caprice. In the worst, it is every vice, and crime, of which human nature is capable."

But our Achilles must not be permitted to drag us along in triumph, as he would a vanquished Hector, by saying, that amongst the specified subjects for legislation, there is one, to wit, the appropriating power, in which, from its peculiar phraseology, a discretion as to the objects, (as well as to the amount) is implied, for that would be to say, that whilst the whole instrument clearly manifests a design, and studiously perfects a scheme, to exclude all subjects for legislation, which are not particularly specified, giving to Congress the few defined, and reserving to the State the numerous undefined powers of legislation, yet, that by certain doubtful and indefinite general phrases, the like of which, are to be found in the most.com-i mon power of attorney, a power of appropriating money shall be claimed by implication, which, in its exercise, shall embrace almost every object of human legislation. What is this, but to say, in the language of Mr. LEGARE, “that whilst all other means, necessary and proper for executing the enumerated powers of the Government, are limited by the nature of those powers, the levying and disposing of money, the UNIVERSAL means, is to be restrained by no other condition, than that it should not be thrown into the sea, or bestowed on individuals who have no claim on the public."

Let us now show where the fallacy of this part of Mr. M'DuFFIE's argument consists.

NO. 18.

The fallacy of Mr. M'DUFFIE's argument in this particular, lies, in his supposing, that the promotion of the "common defence and general welfare" by money merely, is the end for which the whole first clause was inserted. If there was no discretion, he thinks, in Congress, as to the appropriation of its revenues beyond the specific powers, "there would have been no necessity for an express delegation of power, to raise and appropriate money; because every one of the enumerated powers would carry with it as an incident, the power of appropriating the money necessary to its execution," and that, adds he, "can hardly be a just construction which would thus convert the leading clause of the Constitution, into mere surplusage."

In this last position, we perfectly coincide. The construction, which would cause any one of the enumerated powers in the instrument to be mere surplusage, I agree, must be faulty. It is precisely on this principle of reasoning, that I have protested against the decision of the Supreme Court in M'Culloch vs The State of Maryland; for I have shewn, in my eleventh number, that not one, but nearly a dozen of clauses in the Constitution, must be rank surplusage, if the position taken by the Court in that case, be a sound one.

But whilst we so perfectly agree in a joint protestation against a rule of interpretation so unsound, yet I must now turn aside, and separately protest against our own statesman, for the unsound inference which he has drawn, to wit, that had the intention been, to limit the appropriations within the enumerated powers, the necessity of an express delegation of power to raise money, would have been superseded. With such an interference as this, it is not be wondered, that Mr. M'DUFFIE should fall into a snare. Mr. M'DUFFIE is now to be informed, that so far from the general power to tax, being inserted for the special purpose of enabling Congress to appropriate its revenues beyond the enumerated objects, the clause stood at the head of the enumerated powers in Mr. PINCKNEY's draft, submitted to the Convention as soon as it was organized for business, and it stood also in the reported draft of the Constitution, long before the general phrases were thought of or suggested. The words "common defence and general welfare" were not added as an amendment to the clause, until the 4th of September; and then, as I already have stated in my sixteenth number, with a view to express, the sense of the Convention, that the appropriating power was to be limited to the enumerated objects. The taxing clause, was a clause, which the Convention would have retained above all other clauses in the instrument, and under every variety of aspect, of which its intentions might possibly be supposed to be susceptible. The taxing power was the principle, which was to give life, and health, and vigour to the new Government. It was the want of this vital principle, which caused the old Congress to possess an huge, but yet an useless mass of powers. The idea is perfectly inadmissible in any shape, that the Convention, with so much experience before its eyes, of the embarrassments which had been felt, for the want of this active and living power to sustain the fabric of the Confederation, would have omitted to provide by an express grant, for the most paramount of all the powers which can be conferred by a people on its rulers, and have left the new Government to claim the money raising power, by implication of law.