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sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judi. cial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of ihe government; not in rela. tion to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were insti. tuted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day, may safely be left to, the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
The fourth resolution stands as follows:
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal govern. ment, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases, (which, having been copied
from the very limited grant of powers in the former articles of confedera. tion, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases ; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to, transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.
The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.
The General Assembly having declared its opinion merely by regretting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The alien and sedition-acts being particularly named in a succeeding resolution, are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law,* which from the circum
* The bank law referred to is that of 1791. Its constitutionality was the subject of warm discussion in Congress. When it had finally passed both houses, and was sub. mitted to the President, he requested the opinions of the members of the cabinet upon the constitutional question. Mr. Hamilton deemed the law constitutional. An outline of his argument may be seen in ? Marshall's Washington, Notes, p. 5. Mr. Jefferson's opinion, which he has himself preserved, was adverse to the power of Congress to incorporate a bank. (See 4 Jeff. Mem., 523.) The President, after considerable hesita. tion, signed the bill. That charter having expired in 1811, Congress then refused, in the Senate by the casting vote of Geo. Clinton, the Vice-President of the United States and President of the Senate, to renew it. In 1815, a bank bill passed both houses of Congress, but encountered the veto of President Madison, on the score of some objec. tional provisions contained in it. But two years afterwards he gave his sanction to another law for the incorporation of a bank, justifying his disregard of the constitutional objection, which in 1791 he had pressed in Congress with great vigour, upon the ground that he felt himself obliged by the legislative and executive precedents, which had occurred, affirming the constitutionality of such a law. (See his letter to Mr. Ingersoll, post, p. 257, and his veto message of 30th Jan., 1815.)
The question of the validity of the bank law of 1816 was soon brought before the federal judiciary, and in 1819, in the great case of M'Culloch o. The State of Mary, land, 4 Wheat., 316, the Supreme Court pronounced, by the mouth of C. J. Marshall, an unanimous and decided opinion in favour of its constitutionality. The sentiment upon the subject was not thereby quieted, however. Judge Roane, of Virginia, reviewed the judgment of the Supreme Court with freedom and ability, in a series of arti. cles first published in the Richmond Enquirer, in June, 1819, under the signature of “ Hampden," and amongst the people, the dissentients were numerous and influential. It was discussed also, along with several other constitutional questions, with his usual acuteness, by Mr. John Taylor of Caroline, in a work called " Construction Construed," which deserves more readers than, by reason of its peculiarity of style, it has had, or is likely to have.
In July, 1832, President Jackson vetoed a bill renewing the charter of the bank for fifteen years from 1836, resting his objections in part upon constitutional grounds, and in part upon the danger to the institutions of the country from so large a moneyed cor. poration. A similar fate, at the hands of President Tyler, befell two other laws to in. corporate a national bank in August and September, 1841.
stances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force, and the carriage tax,* distinguished also by circumstances in its history having a similar ten. dency. Those instances, alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to, rather as varying the constitutional distribution of powers in the Federal Govern. ment, than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.
The other questions presenting themselves, are-1. Whether indica. tions have appeared of a design to expound certain general phrases copied from the “ articles of confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sove. reignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
* The act of Congress, of 5th June, 1794, imposing a tax on carriages for the con. veyance of persons, provoked a degree of opposition, especially in Virginia, the reason of which it is not, at this day, easy to understand. The complaint respecting it was that, although it was a direct tax, yet it was laid uniformly through the states, instead of being apportioned amongst the states, as the Constitution directs, according to popa. lation. One Hylton, in Virginia, in order to test the question, refused to enter certain carriages which he acknowled himself to possess, and an action having been instituted against him, in pursuance of the act, by the District Attorney, in the name of the Uni. ted States, an agreed case was submitted to the Court, upon which a pro forma judg. ment was entered against the defendant, and thereupon he obtained a writ of error from the Supreme Court of the United States. That court pronounced the carriage tax not to be a direct tax, within the meaning of the Constitution, and that it was proper, therefore, to make it uniform. Congress, it was argued, possesses the power to tax all subjects of taxation, without limitation, with the exception of a duty on exports. There are two restrictions only, on the exercise of this authority :-1. All direct taxes must be apportioned; 2. All duties, imposts, and excises must be uniform. If the car. riage tax were not a direct tax, within the meaning of the Constitution, nor a duty, impost, or excise, Congress was under no restriction as to the mode of laying it, in which case the tax ought to be uniform. But the Constitution could not have meant by a direct tax, which it orders to be apportioned, one which could not, with any regard to equality of burden, be apportioned, and if the tax on carriages could not be equally apportioned, it was, for that reason, not a direct tax. That it could not be so apportioned was manifest, since the number of carriages in the several states bore no relation to population, and consequently the tax on them might be $10 in one state, and $100 in another. The Court intimated an opinion that a direct tax, in the sense of the Constitution, could mean nothing but a tax on what is inseparably annexed to the soil, or otherwise capable of apportionment, under all circumstances, according to population, such as a tax on lands or persons, including slaves. (Hylton v. U. States, 3 Dall., 171.)
This view seems to have been acquiesced in, and when, in 1813, during the war with Great Britain, it was decmed expedient to resort to extraordinary taxation, a tax on carriages was again imposed according to the rule of uniformity. (4 Laws of United States, 570.)
I. The general phrases here meant must be those “of providing for the common defence and general welfare."
In the “ articles of confederation,” the phrases are used as follows, in Art. VIII. "All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to, or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint.”
In the existing Constitution, they make the following part of Sec. 8, “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and to provide for the common desence and general welfare of the United States."
This similarity in the use of these phrases in the two great federal charters, might well be considered, as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
That, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution, so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature, in which arguments have on different occasions been drawn, with apparent effect, from these phrases, in their indefinite mean. ing.
To these indications might be added, without looking farther, the official report on manufactures, by the late Secretary of the Treasury, made on the 5th of December, 1791 ; and the report of a committee of Congress, in January, 1797, on the promotion of agriculture. In the first of these it is expressly contended to belong to the discretion of the national legislature io pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requi. site and proper. And there seems to be no room for a doubt, ihat whatever concerns the general interests of LEARNING, of AGRICULTURE, of MANUFACTURES, and of COMMERCE, are within the sphere of the national councils, as far as regards the application of money.** The latter report
* This report on manufactures, by Mr. Hamilton, is an elaborate exposition of the protective policy, in all its economical bearings, with reference especially to certain
assumes the same latitude of power in the national councils, and applies it to the encouragement of agriculture by means of a society to be established at the seat of government. * Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both, has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; por a power of any magnitude, which, in its exercise, does not involve or admit an application of money. The government, therefore, which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the general welfare,” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states ; and leaving to these their jurisdictions, in cases to which their separate provisions may be competent. For, as the authority of the individual states must in all cases be incompetent to general regulations
leading articles, such as fabrics of metals, of flax and hemp, of cotton, of wool, of silk, &c.
The constitutional power of the federal government to apply encouragement to manufactures, he disposes of very summarily, employing a process of reasoning not a little forinidable to those who desire to maintain the organization of that government, as one of specific and limited powers. The sentence quoted in the text, however, is somewhat qualified by what follows. “The only qualification," Mr. Hamilton pro. ceeds to observe," of the generality of the phrase in question which seems to be admis. sible, is this, that the object to which an appropriation is to be made be general and not local, its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot. No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money, with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing, not authorized by the Constitution, either expressly or by fair implication." (See the Report,—7 Amer. State Papers, 136.)
The constitutional question involved in protective duties is presented on both sides in 2 Story's Comm. on Const., 429, et seq., and 520, et seq. (See Construction Con. strued, 203, and Address of Phila. Free-trade Convention of 1831.)
* This report will be found 20 Am. State Papers, 154. It proposed to establish a society under the patronage of the general government, which should extend its infla. ence through the whole country, and comprehend the extensive object of national im. provement, but especially the promotion of agriculture. It was to have been a body corporate, capable of holding a limited amount of property, and was to be composed, in part, of the members of Congress, the judges of the Supreme Court, and the heads of departments.