Montpr. 27. Nov. 1830
I have recd. my dear Sir your letter of the 20th. with a just sensibility to the kind feelings it expresses, and I hope you will not doubt with an unfeigned reciprocity of them. The more of frankness you put into observations on the subjects wch entered in our late conversations, the more acceptable as well as valuable they will be; that being a quality without which no interchange of thoughts can be profitable to either party; and with which it may be so to one or the other & possibly to both.
I inclose the letter which particularly complies with the objects of yours. The view it takes of the origin and innocence of the phrase "Common Defense & Genl. Welfare", is what was taken in the Federalist & in the Report of -99; and I believe, wherever else I may have had occasion to speak of this clause containing the terms.
I have omitted a vindication of the true punctuation of the clause, because I now take for certain that the original Document signed by the members of the Convention is in the Department of State, and that it testifies for itself against the erroneous Editions of the text in that particular. Should it appear that the Document is not there or that the error had slipped into it, the materials in my hands to which you refer, will amount I think to a proof outweighing even that authority. It would seem a little strange, if the original Constitution be in the Department of State, that it has hitherto escaped notice. But it is to be explained I presume by the fact that it was not among the papers relating to the Constn. left with Genl. Washington, and there deposited by him; but having been sent from the Convention to the Old Congress, lay among the mass of papers handed over on the expiration of the latter to that Dept. On your arrival at Washington, you will be able, personally, or by a friend having more leisure, to satisfy yourself on these points.
It appears as you foretold that my letter in the North am Review has encountered Newspaper Criticism; but as yet, little if at all I believe on the ground looked for. In some instances, both the letter & the Report of -99 are misunderstood and in none that I have seen has the distinction been properly kept in view between the authority of a Higher Tribunal, to decide on the extent of its own jurisdiction; compared with that of the other Tribunals, and its claim of jurisdiction in any particular law or description of laws as within that extent; it being presumed that if not within the extent of its jurisdiction will be pronounced coram non Judice; and it being understood that if not so, it will be a case of Usurpation & to be treated as such.
Mrs. M. charges me with her most affecte. regards for Mrs. Stevenson, in which I beg leave to unite with her; as she does with me in cordial salutations and all good wishes for yourself.
Montpr.Novr. 27. 1830
I have recd. your very friendly favor of the 20th instant, referring to a conversation when I had lately the pleasure of a visit from you, in which you mentioned your belief that the terms "Common defence & General welfare" in the 8th. Section of "the first article of the Constitution of the U. S." were still regarded by some as conveying to Congress a substantive & indefinite power: and in which I communicated my views of the introduction and occasion of the terms, as precluding that comment on them; and you express a wish that I would repeat those views in the answer to your letter.
However disinclined to the discussion of such topics at a time when it is so difficult to separate in the minds of many, questions purely Constitutional from the party polemics of the day, I yield to the precedents which you think I have imposed on myself, & to the consideration that without relying on my personal recollections, which your partiality overvalues, I shall derive my construction of the passage in question, from sources of information & evidence known or accessible to all who feel the importance of the subject, and are disposed to give it a patient examination.
In tracing the history & determining the import of the terms "Common defence & general welfare", as found in the text of the Constitution the following lights are furnished by the printed Journal of the Convention which formed it.
The terms appear in the general propositions offered May 29 as, for the incipient deliberations, the first of which "Resolved that the Articles of the Confederation ought to be corrected & enlarged as to accomplish the objects proposed by their institution, namely, Common defence, security of liberty, and general welfare". On the day following, the proposition was exchanged for Resolved "that an Union of the States, merely federal will not accomplish the objects proposed by the Articles of Confederation; namely, Common defence, security of liberty and general welfare".
The inference from the use here made of the terms, & from the proceedings, on the subsequent propositions is, that altho Common defence & general Welfare were objects of the Confederation, they were limited objects, which ought to be enlarged by an enlargement of the particular powers to which they were limited, and to be accomplished by a Change in the structure of the Union from a form merely federal to one partly national. And as these general terms are prefixed in the like relation to the several Legislative powers in the new Charter, as they were in the Old, they must be understood to be under like limitations in the new as in the Old.
In the course of the proceedings between the 30th. of May & 6th of Augst. the terms Common defence & Welfare as well as other equivalent terms must have been dropped: for they do not appear in the Draft of a Constitution, reported on that day by a Committee appointed to prepare one in actual: the Clause in which those terms were afterwards inserted, being in the Draft, simply "the Legislature of the U. S. shall have power to lay & collect taxes duties, imposts & excises". [ ] taxes [ ]
The manner in which the terms, became transplanted from the Old into the new System of Government, is explained by the course somewhat adventitious given to the proceedings of the Convention.
On the 18th. of Augst. among other propositions referred to the Committee which had reported the draft was one "to secure the payment of the Public debt.," and, on the same day, was appointed a Committee, of Eleven members, (one from each State) "to consider the necessity & expediency of the debts of the several States, being assumed by the U. States"
On the 21st. of Augst. this last Committee reported a clause in the words following "The Legislature of the U. States shall have power to fulfil the engagements, which have been entered into by Congress, and to discharge as well the debts of the U States, as the debts incurred by the several States, during the late war, for the common defence and General welfare"; conforming herein to the 8th. of the Articles of Confederation, the language of which is, that "all charges of war and all other expences that shall be incurred for the common defence and general welfare, and allowed by the U. S in Congress assembled, shall be defrayed out of a Common treasury "&c.
On the 22d. of Augst. the Committee of five reported among other additions to the clause giving power "to lay and collect taxes imposts & excises," a clause in the words following "for payment of the debts and necessary expences", with a proviso qualifying the duration of Revenue laws.
This Report being taken up, it was moved, as an amendment, that the clause should read "the Legislature shall fulfil the engagements and discharge the debts of the U. States"
It was then moved to strike out "discharge the debts", and insert "liquidate the claims"; which being rejected, the amendment was agreed to as proposed viz "the Legislature shall fulfil the engagements & discharge the debts of the U. States"
On the 23d of Augst. the clause was made to read "the Legislature shall fulfil the engagements and discharge the debts of the U. States, and shall have the power to lay & collect taxes duties imposts, & excises" the two powers relating to taxes & debts being merely transposed
On the 25th. of August, the clause was again altered so as to read "all debts contracted and engagements entered into by or under the authority of Congress (the Revolutionary Congress) shall be as valid under this Constitution as under the Confederation"
This amendment was followed by a proposition (referring to the powers to lay & collect taxes &c. and to discharge the debts (old, debts) to add "for payment of said debts, and for defraying the expences that shall be incurred for the Common defence & general welfare". The proposition was disagreed to, one State only voting for it.
Sepr. 4. The Committee of eleven reported the following modification, "The Legislature shall have power to lay & collect taxes duties imposts and excises, to pay the debts and provide for the Common defence & general welfare"; thus retaining the terms of the Articles of Confederation, & covering by the general term "debts", those of the Old Congress.
A special provision in this mode could not have been necessary for the debts of the New Congress: For a power to provide money and a power to perform certain acts of which money is the ordinary & appropriate means, must of course carry with them a power to pay that expence of performing the acts. Nor was any special provision for debts proposed, till the case of the Revolutionary debts was brought into view, and it is a fair presumption from the course of the varied propositions which have been noticed, that But for the old debts, and their association with the terms "Common defence & general welfare", the clause would have remained as reported in the first Draft of a Constitution, expressing generally "a power in Congress to lay and collect taxes duties imposts & excises"; without any addition of the phrase "to provide for the Common defence & general welfare" With this addition indeed, the language of the clause being in conformity with that of the clause in the Articles of Confederation, it would be qualified, as in those Articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose that the terms in question would not have been introduced but for the introduction of the old debts with which they happened to stand in a familiar tho’ inoperative relation. Thus introduced however, they passed undisturbed thro’ the subsequent Stages of the Constitution.
If it be asked why the terms "Common defence & general welfare", if not meant to convey the comprehensive power, which taken literally they express, were not qualified & explained by some reference to the particular powers subjoined, the answer is at hand, that altho’ it might easily have been done, and experience shews it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by its identity with the harmless character attached to it in the Instrument from which it was borrowed. But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why on that supposition, so much critical labor was employed in enumerating the particular powers, and in defining and limiting their extent?
The variations & vicissitudes in the modification of the clause in which the terms "common defence & general welfare" appear, are remarkable, and to be no otherwise explained than by differences of opinion concerning the necessity or the form of a Constitutional provision for the debts of the Revolution; some of the members, apprehending improper claims for losses, by depreciated emissions of bills of credit; others an evasion of proper claims if not positively brought within the authorized functions of the new Govt; and others again considering the past debts of the U. States as sufficiently secured by the principle that no change in the Govt. could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation.
But it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms "Common defence & general welfare", unless we were so to understand the proposition containing them, made on Aug. 25, which was disagreed to by all the States except one.
The obvious conclusion to which we are brought is, that these terms copied from the Articles of Confederation, were regarded in the new as in the Old Instrument merely as general terms, explained & limited by the subjoined specifications; and therefore requiring no critical attention or studied precaution
If the practice of the Revolutionary Congress be pleaded in opposition to this view of the case, the plea is met by the notoriety that on several accounts the practice of that Body is not the expositor of the "Articles of Confederation". These Articles were not in force till they were finally ratified by Maryland in 1781. Prior to that event the power of Congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the States. After that event, habit and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined Authority, which was the more readily overlooked; as the members of the Body held their seats during pleasure, as its Acts, particularly after the failure of the Bills of Credit, depended for their efficacy on the will of the States; and as its general impotency became manifest. The Examples of departure from the prescribed rule, are too well known to require proof. The case of the Old Bank of N. America might be cited as a memorable one. The incorporating ordinance grew out of the inferred necessity of such an Institution to carry on the war, by aiding the finances which were starving under the neglect or inability of the States to furnish their assessed quotas. Congress was at the time so much aware of the deficient Authority, that they recommended it to the State Legislatures to pass laws giving due effect to the Ordinance which was done by Pennsylvania and several other States.
(In a little time, however, so much dissatisfaction arose in Pennsylvania where the Bank was located, that it was proposed to repeal the law of the State in support of it. This brought on attempts to vindicate the adequacy of the power of Congress, to incorporate such an Institution.) Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a Bank at such a Crisis, published a small pamphlet, entitled "Considerations on the Bank of N. America," in which he endeavored to derive the power from the nature of the Union, in which the Colonies were declared & became Independent States; and also from the tenor of the "Articles of Confederation" themselves. But what is particularly worthy of notice is, that with all his anxious search in those Articles for such a power, he never glanced at the terms "Common Defence & general welfare" as a source of it. He rather chose to rest the claim on a recital in the [ ] text, "that for the more convenient management of the general interests of the United States, Delegates shall be annually appointed to meet in Congress, which he said implied that the United States had general rights, general powers, and general obligations, not derived from any particular State, nor from all the particular States, taken separately; but "resulting from the Union of the whole" these general powers, not being controuled by the Article declaring that each State retained all powers not granted by the Articles, because "the individual States never possessed & could not retain a general power over the others"
The Authority & agreement here resorted to, if proving the ingenuity & patriotic anxiety of the author, on one hand, shew sufficiently on the other, that the terms "common defence & general welfare cd. not according to the known acceptation of them avail his object.)
That the terms in question were not suspected, in the Convention which formed the Constitution of any such meaning as has been constructively applied to them may be pronounced with entire confidence. For it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.
Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects; and expanded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever: For what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary & proper to carry the powers into execution; all such provisions and laws superseding, at the same time, all local laws & Constitutions at variance with them. Can less be said with the evidence before us furnished by the Journal of the Convention itself than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that Body whose names were subscribed to the Instrument.
Passing from this view of the sense in which the terms Common defence & general welfare were used by the Framers of the Constitution, let us look for that in which they must have been understood by the Conventions, or rather by the people who thro’ their Conventions, accepted & ratified it. And here the evidence is if possible still more irresistible, that the terms could not have been regarded as giving a scope to federal Legislation, infinitely more objectionable, than any of the specified powers which produced such strenous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.
Without recurring to the published debates of the Conventions, which as far as they can be relied on for accuracy, would it is believed not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the Conventions as considered the powers granted to the new Government too extensive or not safely defined.
Besides the restrictive & explanatory amendments to the text of the Constitution it may be observed, that a long list was premised under the name & in the nature of "Declarations of Rights"; all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number & nature of the amendments proposed to be made specific and integral parts of the Constitutional text.
No less than seven States, it appears, concurred in adding to their ratifications a series of amendments, wch. they deemed requisite. Of these amendments nine were proposed by the Convention of Massachusetts, five by that of S. Carolina; twelve by that of N. Hampshire; twenty by that of Virginia; thirty three by that of N. York; twenty six by that of N. Carolina; twenty one by that of R. Island.
Here are a majority of the States, proposing amendments, in one instance thirty three by a single State; all of them intended to circumscribe the powers granted to the General Government by explanations restrictions or prohibitions, without including a single proposition from a single State, referring to the terms, Common defence & general welfare; which if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at because evidently more alarming in its range, than all the powers objected to put together. And that the terms should have passed altogether, unoticed by the many eyes wch. saw danger in terms & phrases employed in some of the most minute & limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted that the terms were harmless, because explained & limited, as in the "Articles of Confederation", by the enumerated powers which followed them.
A like demonstration, that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the Constitutional Charter may be found in what passed in the first Session of the first Congress, when the subject of amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms "Common defence and General welfare", unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congs. shew that in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance & silence on such an occasion, and among so many members who belonged to the part of the nation, which called for explanatory & restrictive amendments, and who had been elected as known advocates for them, can not be accounted for without supposing that the terms "Common defence & General welfare", were not at that time deemed susceptible of any such construction as has since been applied to them.
It may be thought perhaps, due to the subject, to advert to a letter of Octr. 5. 1787 to Samuel Adams and another of Ocr. 16 of the same year to the Governor of Virginia, from R. H. Lee, in both which, it is seen that the terms had attracted his notice, and were apprehended by him "to submit to Congress every object of human Legislation". But it is particularly worthy of Remark, that altho’ a member of the Senate of the U. States, when Amendments to the Constitution, were before that House, and sundry additions & alterations were there made to the list sent from the other, no notice was taken of those terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member at the first view of the Constitution, & before it had been fully discussed, & elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them; and therefore needed no explanatory precaution agst. it.
A final paragraph for the letter of Novr. 27. 1830 to Mr. Stevenson.
Allow me My dear Sir to express on this occasion, what I always feel, an anxious hope, that as our Constitution rests on a middle ground between a Form, wholly national, and one merely Federal, and on a division of the powers of Govt. between the States in their United Character and in their individual Caharacters, this peculiarity of the System will be kept in view as a key to the sound interpretation of the Instrument and a warning agst. any doctrine that would either enable the States to invalidate the powers of the U. States, or confer all power on them.
I close these remarks which I fear may be found tedious with assurances of my great esteem, and best regards
As a Supplement to the letter of Novr 27 1830 to A Stevenson, on the phrase Comn def & G. W
It is not to be forgotten that a distinction has been introduced between a power merely to appropriate money to the Common defence & General welfare, and a power to employ all the means of giving full effect to objects embraced by the terms.
1. The first Observation to be here made is that an express power to appropriate money authorized to be raised, to objects authorized to be provided for, could not, as seems to have been supposed, be at all necessary; and that the insertion of the power "to pay the debts &c" is not to be referred to that cause. It has been seen that the particular expression, of the power, originated in a cautious regard to debts of the U. States antecedent to the radical change in the federal Govt.; and that but for that consideration, no particular expression of an appropriating power would probably have been thought of. An express power to raise money, and an express power (for example) to raise an army, would surely imply a power to use the money for that purpose, and if a doubt could possibly arise, as to the implication, it would be compleatly removed by the express power to pass all laws necessary & proper in such cases.
2. But admitting the distinction as alledged, the appropriating power to all objects of "Common defence & general welfare" is itself of sufficient magnitude to render the preceding views of the subject applicable to it. Is it credible that such a power would have been unnoticed & unopposed in the Federal Convention; in the State Conventions which contended for & proposed restrictive & explanatory amendments; and in the Congress of 1789 which recommended so many of these amendments. A power to impose unlimited taxes for unlimited purposes could never have escaped the sagacity & jealousy which were awakened to the many inferior & minute powers which were criticised & combated in those public bodies.
3. A power to appropriate money, without a power to apply it in execution of the object of appropriation, could have no effect but to lock it up from public use altogether: and if the appropriating power carries with it, the power of application and execution, the distinction vanishes. The power therefore means nothing, or what is worse than nothing; or it is the same thing with the sweeping power "to provide for the Common defence and General welfare".
4. To avoid this dilemma, the consent of the States is introduced, as justifying the exercise of the power in the full extent, within their respective limits. But it would be a new doctrine, that an extra=constitutional consent of the parties to a Constitution, could amplify the jurisdiction of the Constituted Govt. And if this could not be done by the concurring consents of all the States, what is to be said of the doctrine that the consent of an individual State could authorize the application of money belonging to all the States, to its individual purposes. Whatever be the presumption that the Govt. of the whole would not abuse such an authority, by a partiality in expending the public treasure, it is not the less necessary to prove the existence of the power. The Constitution is a limited one possessing no power not actually given, & carrying on the face of it a distrust of power, beyond this distrust indicated by the ordinary forms of free Government.
The peculiar structure of the Government which combines an equal representation of unequal numbers in one branch of the Legislature, with an equal representation of equal numbers in the other, and the peculiarity which invests the Govt. with selected powers only, not entrusting it even with every power wihdrawn from the local Govts, from not only an apprehension of abuse from ambition or corruption in those administering the Govt. but of oppression or injustice from the separate interests or views of the Constituent bodies themselves taking effect thro’ the administration of the Govt. Those peculiarities were thought to be safeguards due to minorities having peculiar interests, or institutions at stake, agst. majorities who might be tempted by interest or other motives to invade them; and, all such minorities however composed act with consistency, in opposing a latitude of construction, particularly that which has been applied to the terms "Common defence & General welfare", which would impair the security intended for minor parties. Whether the distrustful precaution interwoven in the Constitution was or was not in every instance necessary, or how far, with certain modifications, any further powers might be safely and usefully granted, are questions, which were open for those who framed the great Federal Charter, and are still open for those who aim at improving it: But whilst it remains as it is, its true import ought to be faithfully observed; and those who have most to fear from constructive innovations ought to be most vigilant in making head agst. them.
But it would seem that a resort to the consent of the State Legislatures, as a sanction, to the appropriating power, is so far from being admissible in this case, that it is precluded by the fact that the Constitution has expressly provided for the cases where that consent was to sanction and extend the power of the national Legislature. How can it be imagined that the Constitution, when pointing out the cases, where such an effect was to be produced, should have deemed it necessary to be positive & precise with respect to such minute spots as forts &c and have left the general effect ascribed to such consent, to an argumentative or rather to arbitrary construction. And here again an appeal may be made to the incredibility, that such a mode of enlarging the sphere of federal Legislation, should have been unnoticed in the ordeals thro’ which the Constitution passed, by those who were alarmed at many of its powers, bearing no comparison with that source of power, in point of importance.
5. Put the case that money is appropriated to a Canal* to be cut within a particular State; how & by whom, it may be asked, is the money to be applied & the work to be executed? By Agents under the authority of the General Govt? then the power is no longer a mere appropriating power. By agents under the authority of the State? then the State becomes either a Branch or a functionary of the Executive authority of the U. States; an incongruity that speaks for itself.
*On more occasions than one, it has been noticed in Congressional debates, that propositions appear to have been made in the Convention of 1787, to give to Congress the power of opening Canals, and to have been rejected: and that Mr. Hamilton, when contending in his Report in favor of a Bank for a liberal construction of the powers of Congs admitted that a Canal might be beyond the reach of those powers.
6. The distinction between a pecuniary power only and a plenary power "to provide for the Common defence General welfare", is frustrated by another reply to which it is liable: For if the clause be not a mere introduction to the enumerated powers & limited restricted to them, the power to provide for the Common defence & general welfare, stands as a distinct substantive power, the first on the list of Legislative powers; and not only involving all the powers incident to its execution; but coming within the purview of the clause concluding the list, which expressly declares that Congress may make all laws necessary & proper to carry into execution the foregoing powers vested in Congress.
The result of this investigation is that the terms "Common defence and General welfare owed their introduction into the text of the Constitution, to their connection in the "Articles of Confederation" from which they were copied, with the debts contracted by the Old Congs; and to be provided for by the new Congress; and are used in the one Instrument as in the other, as general terms, limited & explained by the particular clauses, subjoined to the clause containing them: that in this light they were viewed throughout the recorded proceedings of the Convention which framed the Constitution; that the same was the light in which they were viewed by the State Conventions which ratified the Constitution, as is shewn by the records of their proceedings; and that such was the case also in the first Congress, under the Constitution, according to the evidence of their Journals, when digesting the amendments afterwards made to the Constitution. It equally appears that the alledged power to appropriate money to the Common defence & General welfare" is either a dead letter, or swells into an unlimited power to provide for unlimited purposes, by all the means necessary & proper for those purposes. And it results finally that if the Constitution does not give to Congress the unqualified power to provide for the Common defence & General welfare, the defect can not be supplied by the consent of the States unless given in the form prescribed by the Constitution itself for its own amendment.
As the people of the U. S. enjoy the great merit of having established a system of Govt. on the basis of human rights, and of giving to it a form without example, which, as they believe, unites the greatest national strength, with the best security for public order, & individual liberty, they owe to themselves, to their posterity, and to the world, a preservation of the System, in its purity, its symmetry and its authenticity. This can only be done, by a steady attention & sacred regard to the Chartered boundaries between the portion of power vested in the Govt. over the whole, and the portion undivested from the several Govts. over the parts composing the whole; and by a like attention & regard to the boundaries between the several Departments Legislative, Executive & Judiciary into which the aggregate power is divided. Without a steady eye to the landmarks between these Departments the danger is always to be apprehended either of mutual encroachments, & alternate ascendancies, incompatible with the tranquil enjoyment of private rights; or of a concentration of all the Departments of power into a single one, universally acknowledged to be fatal to public Liberty.
And without an equal watchfulness over the great landmarks between the General Govt. and the particular Govts. the danger is certainly not less, of either a gradual relaxation of the band which holds the latter together, leading to an entire separation; or of a gradual assumption of their powers, by the former, leading to a consolidation of all the Govts. into a single one.
The two vital characteristics of the political System of the U. S. are, first that the Govt. holds its powers by a Charter granted to it by the people: second, that the powers of Govt. are formed into two grand divisions, one vested in a Govt. over the whole community, the other in a number of independent Govts. over its component parts. Hitherto Charters have been written grants of privileges by Govts. to the people. Here they are written grants of power by the people to their Govts.
Hitherto again all the powers of Govt. have been, in effect, consolidated into one Govt.; tending to faction & a foreign yoke among a people within narrow limits; and to arbitrary rule, among a people spread over an extensive territory region. Here the established System aspires to such a division and organization of power as will provide at once for its harmonious exercise on the true principles of liberty over the parts, and over the whole, notwithstanding the great extent of the whole; the system forming an innovation & an epoch in the Science of Govt. not less honorable to the people to whom it owed its birth, than auspicious to the political welfare of all others who may imitate or adopt it.
As the most arduous & delicate task in this great work, lay in the untried demarkation of the line which divides the general & the particular Govts. by an enumeration & definition of the powers of the former, more especially the Legislative powers; and as the success of this new Scheme of polity essentially depends on the faithful observance of this partition of powers, the friends of the scheme, or rather the friends of liberty & of man, can not be too often or too earnestly exhorted to be watchful in marking & controuling encroachments by either of the Govts. on the domain of the other.
Draft (DLC); newpaper version from the New York Standard, [August?] 1832, reprinted from the Richmond Enquirer (NN: James Monroe Papers).
"Memorandum not used in letter to Mr Stevenson"
These observations will be concluded with a notice of the argt in favor of the grant of a full power to provide for Common D. & Genl W. drawn from the punctuation in some Editions of the Constn. designates.
According to one mode of printing & presenting the text: it reads as follows: Congress shall have power To lay & collect taxes duties, imports & excises; to pay the debts & provide for the C. D. & G. W. of the U. S. but all duties imports & excises shall be uniform: to another mode the same with comaes, via semicolons.
According to the other mode the text stands thus; Congress shall have power;
To lay & col: tax ds. imp. & excises:
To pay the debts & provide for the Comm. D. & G. W. of the U. S:; but all ds. imp. & excs. shall be uniform througt. the U. S.
And from this view of the text, it is inferred that the latter sentence conveys a distinct substantive a power to provide for the C. D. & G. W.
Without enquiring how far the text in this form wd. convey the pow. in question; or admitting that any mode of printing or distributing the terms could invalidate the evidence wch. has been exhibited, that it was not the intention of the Gen. or the St. Convns. to express by the use of the terms, C. D. & G. W. a substantive & indefinite power; or to imply that the Gen. terms were not to be explained & limited by the specified powers, succeeding them; in like manner as they were explained & limited in the former "Articles of Confed." from which the terms were taken; it happens that the authenticity of the punctuation which preserves the Unity of the clause can be as satisfactorily shewn, as the true intention of the parties to the Constn. has been shewn in the language used by them
The only instance of a division of the Clause afforded by the Journal, of the Convention is in the Draft of a Constn. reported by a Come. of five members, & entered on the 12 of Sepr.
But that this must have been an erratum of the pen or of the press, may be inferred, from the circumstance, that in a copy of that Report, printed at the time for the use of the members & now in my possession the text is so printed as to unite the parts in one substantive clause, an inference favored also by a previous Report of Sepr. 4 by a Come. of eleven in which the parts of the clause are united not separated.
And that the true reading of the Constn. as it passed, is that which unites the parts, is abundantly attested by the following facts.
1. Such is the form of text in the Constn. printed at the close of the Convention, after being sigd by the members, of which a copy is also now in my possession.
2. The case is the same in the Constn. reported from the Convention, to the old Congress as printed on their Journal of Sepr. 28. 1787. and transmitted by that Body to the Legislatures of the several States
3. The case is the same in the copies transmitted of the Constn. as printed by the ratifying States; several of which have been examined; and it is a presumption that there is no variation in the others
as in the Rept. of Sepr. 4.
It might indeed be added that in the Journal of Sepr. 18 the clause to which the proviso [ ] now a part of the Constn. "but all duties, imports & excises shall be uniform throughout the U. S. is called the "first [ ] of course a single" Clause. And it is observed that the uniformity required by the proviso implies that what it referred to was a part of the same Clause with the proviso not an antecedent Clause altogether separated from it
The text is in the same form in an Edn. of the Constn. published in 1814 by order of the Senate; as also in the Constn. as prefixed to the Edn. of the Laws of the U. S. in [ ]
Should it be not contested that the origl. Const. in its engrossed or enrolled State with the names of the subscribing members suffixed thereto, presents the text in the same form, that alone must extinguish the verbal argt. in question.
If contrary to every ground of [ ] the text in its original Document, should not coincide with these multiplied examples, the first question wd. be of comparative probability of error even in the printed text, and in the no. & variety of the [ ] examples in opposition to it.
and a 2d. question, whether the construct[ion] put on the text in any of its forms, or punctuations, ought to have the weight of a feather agst. the solid & diversified proofs which have been pointed out of the meaning of the parties to the Constn.