There is yet another reason, why in the enumeration of powers, such a clause could not be dispensed with-The States were about to part with a considerable portion of their sovereignty, and confer it on a Government, which, for certain purposes, was designed to be supreme. To avoid a clashing, or repugnance of authoritý iʼn laying and collecting their respective revenues, it was most essential to state the subjects of taxation over which the General Government should possess authority. The taxing power, therefore, became of the utmost consequence; it was a subject which was uppermost in the minds of the members-and it was a subject too, which did not admit of very easy arrangement. The Convention

had to choose between two modes; one of which was, to separate the subjects of taxation, so as to give some to the Union, and the remainder to the States; whilst the other plan proposed, was not to separate the objects of Revenue, but to give the States concurrent jurisdiction, in general, in the article of taxation. Mr. HAMILTON in his Federalist (No. 35) justifies the position finally taken by the Convention, "that a CONCURRENT jurisdiction in the article of taxation, was the only admissible substitute, for an entire subordination, in respect to this branch of power, of State authority to that of the Union."

We now perceive the indispensable necessity of the taxing clause, a clause so judiciously constructed, that whilst under its phraseology, no exclusive grant of sovereignty over subjects of revenue can possibly be claimed by Congress-there is at the same time a reservation of State sovereignty, under that NEGATIVE PREGNANT in the Constitution—to wit: the restriction on the power of the States to lay duties on imports, exports and tonnage. Does not Mr. M'DUFFIE see, that a clause, which according to Mr. HAMILTON, has the " merit of reconciling, an indefinite Constitutional power of taxation in the Federal Government, with an adequate and independent power in the States to provide for their own necessities," is amongst the most important clauses in the Constitution, and that it justly merits the position it now occupies, to wit-at the head of all the other powers. Must he not confess his oversight, when he did not perceive, that the taxing power was indispensable, as the great sovereign means of executing al the other powers, and that he was greatly in error, when he imagined, that had the intention been, to apply the proceeds of the taxes to the enumerated powers, "there would have been NO NECESSITY, for an express de legation of power, to raise and appropriate money." Had Mr. M'DUFFIE not indulged in the Utopian scheme, that a fundamental dissimilarity of interests between twenty-four States, embracing a portion of the globe larger than Europe, and differing so much in climate, soil, and productions, and in their institutions and their laws, could ever be altered or destroyed; but have contemplated all the schemes of internal improvement, as all rational men do, merely as calculated to add influence to the Supreme Government, and to take it from the subordinate sovereignty, and thus finally to merge the one into the other; had he looked into the Constitution, not with the visionary eye of an ardent enthusiast, for a splendid Government, but with that of the calm and philosophical statesman, he would have known, that it is a work so admirably contrived, as to bear upon its very face and front, the irrefragable evidence, that its whole scheme and design is opposed to constructive powers-that the giving away little odd parcels of power, which were the incidents to other powers be

fore given, was purposely, to impress upon the minds of future generations, that nothing was to be claimed which was not given; and from this, he would have learnt what I hope I have established to the satisfaction of all; to wit, that the taxing power was given, not as he believes, to accomplish the particular end of spending money towards, the common defence and general welfare, beyond the enumerated objects, at the discretion of Congress; but that it was, of necessity, given for other and higher purposes, to wit, the accomplishment of the enumerated objects, for which the Government was instituted.

1

The fallacy of Mr M'DUFFIE's argument being thus shewn, I pass over. those observations of his, in which he would shew, that if his view of the appropriating power of the Government be not correct, every Congress has been guilty of habitual violation of the Constitution. No argument founded on precedents can have weight, where the question at issue is,. whether the Government has, or has not usurped its powers. Mr. M'DurFIE cannot seriously believe, that in the instances which he has cited, of the appropriations to the St. Domingo sufferers, under Gen. WASHINGTON's administration, and of that to the inhabitants of Carracas under Mr. MADISON'S, there was an application of money to the "general welfare” of the people of the United States. These were remarkable instances, of the triumph of generous feelings, over sober legislative caution. But there is an argument, drawn from the precedent in the case of the purchase of Louisiana by Mr. JEFFERSON, which does merit a particular reply.

Mr. M'DUFFIE would here exultingly ride over his opponents, by sup posing them to take a ground, which, in my view is wholly indefensible. "It will be said," says he, "that the purchase of Louisiana, was made by virtue of the Executive power to make treaties, and what follows? That there is an unlimited power in the Executive Government, not only to authorize Congress to appropriate money, but to impose upon it all the obli gation, which can grow out of the treaty, to make the appropriation."This, Mr. M'DUFFIE triumphantly exclaims "puts an end to the argument, which limits the power of appropriating money to the other specific grants to Congress embraced in the enumeration of its powers;" for, says he, "it would be an extraordinary supposition, that the framers of the Constitution intended to limit, by the most jealous restrictions, the powers of the popular branch of the Government, in selecting the objects calculat ed to promote the general welfare, and at the same time, to vest in the Executive Government, the most unlimited discretion on the same sub1 ject."

小

But the whole of this is a fallacy. Mr. M'DUFFIE here makes up a “ man of straw," that he might tear him into pieces. Who would contend, that every treaty made by the President, and ratified by the Senate, is obligatory upon the House of Representatives, or upon the States, or the people. A treaty stands upon no better footing than a law of Congress, In either case, it is only, the "Supreme law of the Land," when made "in pursuance of the Constitution." If the President, and Senate ratify a treaty, in which there are stipulations, which violate any express article in the Constitution, Mr. M'DUFFIE ought to know, that such a treaty would not be binding. Suppose a treaty to be made in which the United States are pledged to an alliance with England or France, offensive and defensive, such a treaty would be void, because it would enable the Exet

1

1

There is yet another reason, why in the enumeration of powers, such a clause could not be dispensed with-The States were about to part with a considerable portion of their sovereignty, and confer it on Government,

which, for certain purposes, was designed to be supreme. To avoid a clashing, or repugnance of authority in laying and collecting their respective revenues, it was most essential to state the subjects of taxation over which the General Government should possess authority. The taxing power, therefore, became of the utmost consequence; it was a subject which was uppermost in the minds of the members-and it was a subject too, which did not admit of very easy arrangement. The Convention had to choose between two modes; one of which was, to separate the subjects of taxation, so as to give some to the Union, and the remainder to the States; whilst the other plan proposed, was not to separate the objects of Revenue, but to give the States concurrent jurisdiction, in general, in the article of taxation. Mr. HAMILTON in his Federalist (No. 35) justifies the position finally taken by the Convention, "that a CONCURRENT jurisdiction in the article of taxation, was the only admissible substitute, for an entire subordination, in respect to this branch of power, of State authority to that of the Union."

We now perceive the indispensable necessity of the taxing clause, a clause so judiciously constructed, that whilst under its phraseology, no exclusive grant of sovereignty over subjects of revenue can possibly be claimed by Congress-there is at the same time a reservation of State sovereignty, under that NEGATIVE PREGNANT in the Constitution-to wit: the restriction on the power of the States to lay duties on imports, exports and tonnage. Does not Mr. M'DUFFIE see, that a clause, which according to Mr. HAMILTON, has the "merit of reconciling, an indefinite Constitutional power of taxation in the Federal Government, with an adequate and independent power in the States to provide for their own necessities," is amongst the most important clauses in the Constitution, and that it justly merits the position it now occupies, to wit-at the head of all the other powers. Must he not confess his oversight, when he did not perceive, that the taxing power was indispensable, as the great sovereign means of executing al the other powers, and that he was greatly in error, when he imagined, that had the intention been, to apply the proceeds of the taxes to the enumerated powers, "there would have been NO NECESSITY, for an express delegation of power, to raise and appropriate money." Had Mr. M'DUFFIE not indulged in the Utopian scheme, that a fundamental dissimilarity of interests between twenty-four States, embracing a portion of the globe larger than Europe, and differing so much in climate, soil, and productions, and in their institutions and their laws, could ever be altered or destroyed; but have contemplated all the schemes of internal improvement, as all rational men do, merely as calculated to add influence to the Supreme Government, and to take it from the subordinate sovereignty, and thus finally to merge the one into the other; had he looked into the Constitution, not with the visionary eye of an ardent enthusiast, for a splendid Government, but with that of the calm and philosophical statesman, he would have known, that it is a work so admirably contrived, as to bear upon its very face and front, the irrefragable evidence, that its whole scheme and design is opposed to constructive powers-that the giving away little odd parcels of power, which were the incidents to other powers be

fore given, was purposely, to impress upon the minds of future generations, that nothing was to be claimed which was not given; and from this, he would have learnt what I hope I have established to the satisfaction of all; to wit, that the taxing power was given, not as he believes, to accomplish the particular end of spending money towards the common defence and general welfare, beyond the enumerated objects, at the discretion of Congress; but that it was, of necessity, given for other and higher purposes, to wit, the accomplishment of the enumerated objects, for which the Government was instituted.

The fallacy of Mr M'DUFFIE's argument being thus shewn, I pass over. those observations of his, in which he would shew, that if his view of the appropriating power of the Government be not correct, every Congress has been guilty of habitual violation of the Constitution. No argument founded on precedents can have weight, where the question at issue is, whether the Government has, or has not usurped its powers. Mr. M'Dur FIE cannot seriously believe, that in the instances which he has cited, of the appropriations to the St. Domingo sufferers, under Gen. WASHINGTON's administration, and of that to the inhabitants of Carracas under Mr. MADISON'S, there was an application of money to the "general welfare” of the people of the United States. These were remarkable instances, of the triumph of generous feelings, over sober legislative caution. But there is an argument, drawn from the precedent in the case of the purchase of Louisiana by Mr. JEFFERSON, which does merit a particular reply.

Mr. M'DUFFIE would here exultingly ride over his opponents, by sup posing them to take a ground, which, in my view is wholly indefensible.— "It will be said," says he," that the purchase of Louisiana, was made by virtue of the Executive power to make treaties, and what follows? That there is an unlimited power in the Executive Government, not only to authorize Congress to appropriate money, but to impose upon it all the obli gation, which can grow out of the treaty, to make the appropriation."This, Mr. M'DUFFIE triumphantly exclaims "puts an end to the argument, which limits the power of appropriating money to the other specific. grants to Congress embraced in the enumeration of its powers;" for, says he, "it would be an extraordinary supposition, that the framers of the Constitution intended to limit, by the most jealous restrictions, the power of the popular branch of the Government, in selecting the objects calculat ed to promote the general welfare, and at the same time, to vest in the Executive Government, the most unlimited discretion on the same subject."

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But the whole of this is a fallacy. Mr. M'DUFFIE here makes up a 66 man of straw," that he might tear him into pieces. Who would contend, that every treaty made by the President, and ratified by the Senate, is obligatorý upon the House of Representatives, or upon the States, or the people. A treaty stands upon no better footing than a law of Congress, In either case, it is only the "Supreme law of the Land," when made "in pursuance of the Constitution." If the President, and Senate ratify a treaty, in which there are stipulations, which violate any express article in the Constitution, Mr. M'DUFFIE ought to know, that such a treaty would not be binding. Suppose a treaty to be made in which the United States are pledged to an alliance with England or France, offensive and defensive, such a treaty would be void, because it would enable the Exet

1

cutive, and the Senate to put the United States at war with a foreign power, when it is Congress alone in which the power is vested, “to declare war." Many cases might be put, where not only express articles of the Constitution might be violated, under such a construction as this, but certain unalienable, though undefined rights of the States may be impaired and surrendered. This was clearly illustrated some years ago, in a pamphlet called Caroliniensis." In the debates on Mr. JAY's treaty, a treaty in which it was not pretended, that there was any violation of the Constitu tion, it was even there doubted, whether the House of Representatives was bound to carry it into effect. The purchase of Louisiana, is not then to be justified, on the ground of its being made by virtue of the Executive power to make treaties. The President and Senate have the unquestionable power to make treaties, as far as those treaties relate to subjects, within the scope of the enumerated objects, for which the General Government was established, but no farther. They have no Constitutional right, to negociate to purchase territory for the United States, as territory merely.

war.

Because Louisiana 'was purchased by Mr. JEFFERSON, Mr. M'DUFFIE concludes, that the purchase was justified, under his favourite doctrine, of "the power to appropriate money for the general welfare, as money merely" I differ totally from Mr. M'DUFFIE, since the purchase of this Territory, is to be defended on the proper, and the only ground of its being a war nieasure-most decidedly a war measure. I can well recollect the causes which led to the treaty of cession: A right of deposit was denied us at New-Orleans, by the Spanish authorities, aud there arose from this aggression, such an excitement throughout the Western country, in conse quence of this violation of subsisting treaties, that it became necessary, that the Government should adopt immediate measures of negociation, or There existed a powerful party in Congress, who were for taking New Orleans by force, at the head of which were many distinguished mem bers, amongst whom was Mr. Ross, from Pittsburg. In this critical posture of affairs, when war or submission was unavoidable, Mr. JEFFERSON, whose policy was that of peace, conceived the sublime project of purchasing it, so as to avoid hostilities. But Spain, in the mean time, transferred the Province to France, and Mr. JEFFERSON being still unwilling to have a collision with BONAPARTE, and being given to understand, that it might be purchased, the purchase was accordingly made. Had we gone to war, and acquired Louisiana by conquest, and retained it after a treaty of peace, no one would have doubted our right to hold it, nor can it be denied, but that it would have cost us some blood, and the expenditure of treasure fully equivalent to the purchase money. It would be refining too much to say, that when we are on the eve of war with a neighbouring power, and negociations are entered into, and on the one side a cession of territory takes place, and an equivalent is stipulated on the other, that there is any substantial difference between such a case, and that, where, after actual war, the same treaty is made. I conceive the money expended for Louisiana, as much applied to a purpose strictly national, both in its character and its consequences, as if it had been invested in the armies, or fleets, or other warlike preparations, which would have been indispensably requisite, had: not the cession taken place. Instead of its being a cession, in a treaty of peace, after an expensive war, it was a treaty before, and IN SUBSTITUTION of WAR. It was a measure having a direct and natural rela