"The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, and imposts, and excises shall be uniform throughout the United States;"—and then follow all the other powers, to borrow money, &c.
The terms "common defense and general welfare," used in this enumeration, were taken from the Articles of Confederation, where they stood thus: "All charges of war, and all other expenses that shall be incurred for the common defense 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," &c. Under those Articles they were never understood as a substantive grant of power to the Continental Congress, or as authorizing that body to ask from the States moneys, and to expend them for any purposes other than those which the Articles afterwards specified. By the new Constitution the manner of getting the money was happily changed from State requisitions to taxes, duties, imposts, and excises, to be expended, however, when so obtained, for the common defense and general welfare, as before, and the Constitution then, like the Articles of Confederation, says upon what objects it is to be expended. The Convention which framed and those which ratified the instrument, of course, understood the terms as used in the same sense. But after the Constitution was ratified, without an intimation of such a construction having been whispered before, it was contended by many that the manner in which the terms common defense and general welfare were used in it authorized Congress to adopt any measure which that body might deem calculated to subserve the common defense and general welfare of the country, whilst others, less reckless, limited the power they claimed for Congress to the application of money to any such measures. Among the former, as to the clause in the preamble, Hamilton placed himself, insisting that, under the grant of powers to make all laws which shall be necessary and proper for carrying its given powers into execution, Congress had the power to adopt every measure of government not expressly denied to it or exclusively granted to the States, which it should deem useful in the execution of its enumerated powers, however variant in its name, object, and general understanding; and under the clause quoted from the preamble an unlimited power of taxation, and an equally unlimited authority to expend the money so raised upon objects which it might think would promote the common defense and general welfare. He thus claimed for Congress substantially all legislative power, save such as was expressly prohibited to it, given exclusively to the States, or denied to both, falling but little if any thing short of the power he assigned to the national legislature in his propositions submitted to the Convention, which that body would not even consider, viz.: "to pass all laws which they shall judge necessary to the common defense and general welfare of the Union."
When the advocates of these doctrines were asked to remember the state of public opinion at the time when the Constitution was framed; the jealousy which then existed and had for so many years existed, of the power of the General Government; the fact that the apprehensions which had been entertained had so long prevented the calling of a Convention; the extreme improbability that the Convention, under such circumstances, could have intended to give to Congress the power to pass any law it might be pleased to regard as useful in the execution of an enumerated power, whatever might be its bearing upon the State governments; to add to the power to make peace and war and to raise armies and equip fleets; to make the power to raise money unlimited by authorizing its expenditure upon any measure Congress might assume to be conducive to the common defense and general welfare, and the absurdity of the supposition that the grant of such far-reaching and absorbing powers would have been conferred in so obscure a way, and that the Constitution would have passed the scrutiny of so many State Conventions without its ever having been intimated in any way that there lay concealed in its general terms grants of power which, if but suspected, would have set the country in a blaze, and would have produced instant refusals to ratify on the part of most of the States,—when such considerations were opposed to those bold pretensions, the only reply was, the Constitution must be construed by its letter, and we cannot look behind it or beside it for the means of doing so truly.
To the answer that extraneous matter has always been allowed by all laws, state and national, to be used in the interpretation of the highest acts of sovereignty, such as the construction of treaties between sovereign powers, of patents issued under the great seal, of acts of Parliament, of Congress, and of State legislatures, and in respect to the latter class the old law, the mischief and the proposed remedy to be taken into consideration in searching for the meaning of such acts, in the construction of wills, deeds, &c., &c., the only rejoinder was that a Constitution was an exception to those rules; in short that a Constitution was the sole exception to the application of the maxim which has grown out of the observation and experience of mankind,—qui hæret in literâ hæret in cortice.
The nearness of the time when the Constitution was framed to the period of which we are speaking gave to this construction its most repulsive aspect. The members of the Federal Convention were yet on the stage of action, and many of them participators in the measures that were brought forward on the strength of it. The remonstrances of those who dissented on the ground of their own knowledge that the Convention did not contemplate such a construction were disregarded, not because they did not represent the truth but because the objection was inadmissible upon principle. This was emphatically the case in respect to the establishment of a national bank, the pioneer of constitutional infractions, the "wooden horse" from whose sides the most violent assaults have been made upon the Constitution. It was a fact well remembered by the members, and subsequently confirmed by the publication of the journal of the Convention, that a motion was made to give to Congress power to grant acts of incorporation, as facilities to public improvements. This fact was brought to the notice of President Washington by Mr. Jefferson, in his opinion upon the bank question: "It is known," said he, "that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution; a proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate, but the whole was rejected, and one of the reasons of rejection urged in the debate was that then they would have power to erect a bank, which would render the great cities, where there were prejudices or jealousies upon this subject, adverse to the reception of the Constitution."
This communication was made directly to General Washington, who had been President of the Convention, and made to defeat a measure of Hamilton's, who never failed to turn every proposition of his opponents against themselves when it was in his power to do so. It remained unnoticed, and its truth was therefore virtually admitted. Upon the very first question, then, which arose under the Constitution upon Hamilton's construction, and that one first also in importance, the well-known intentions of the Convention were directly and intentionally overruled.
President Washington gave no reasons for his decision in favor of the Bank Bill. I will hereafter state the principle upon which I think it fair to presume that he acted. Hamilton was influenced by views which governed his conduct in every constitutional question that arose in his day. He did not, because he could not with any show of propriety, deny that the Constitution ought in strictness to be construed according to the intentions of those who made it; but believing, doubtless sincerely, from the beginning, that, so construed, it was insufficient for the purposes of good government and must prove a failure, he designedly gave it construction, in cases where he deemed that course necessary to the public interest, in opposition to what he knew to have been the intentions of the Convention. The objection that this was setting at naught the declared will of the people had but little weight with him. He believed that a majority of the Convention would have been content to incorporate the powers he now claimed in the Constitution if they had not been deterred by the fear that it would not be ratified, and for the opinion of a majority of the people he made proverbial his want of respect. He held them incapable of judging in such questions. He was as anxious as any man to promote their happiness and welfare, but he thought it a political necessity that this could only be done in despite of themselves; no man could possibly be less prone than he was to the employment of sinister means in private life, and yet he held them excusable in dealing with the people; he thought nothing effectual and salutary could be done with them without appeals to their special interests, without exciting their passions and turning them to the side of the Government. This was the vicious feature of his political creed, and proofs of its existence could be multiplied almost without end; but, as the subject will unavoidably and often present itself, I will content myself here with an extract from a letter written by him to his friend Morris, after the great public transactions in which he had been engaged were principally ended. The last letter to Morris, from which I have quoted, spoke of the past; this looks to the future, and shows the lengths to which he was yet, as he had always been, willing to go. The letter is dated April 6, 1802, in which, after complimenting Morris upon his efforts "in resisting the follies of an infatuated administration," he thus points his friend to the work before them:—
"But, my dear sir, we must not content ourselves with a temporary effort to oppose the approach of evil. We must derive instruction from the experience before us, and learning to form a just estimate of things to which we have been attached, there must be a systematic and persevering endeavor to establish the fortune of a great empire on foundations much firmer than have yet been devised. What will signify a vibration of power if it cannot be used with confidence or energy, and must be again quickly restored to hands which will prostrate much faster than we shall be able to rear under so frail a system? Nothing will be done until the structure of our national edifice shall be such as naturally to control eccentric passions and views, and to keep in check demagogues and knaves in the disguise of patriots."[20]
This speaks for itself, and certainly nothing could be more superfluous than an attempt to elucidate its import and extent. It deserves to be remembered that this was in the thirteenth year of the Constitution, now described as a "frail system," and which, in a previous letter to Morris, was called a "frail and worthless fabric." Hamilton enforced his construction, but upon that point we will say no more until we arrive at a period when it was exposed to a scrutiny by which it was forever exploded. Looking to the construction of the Constitution which I have described for his authority to adopt the measures he deemed necessary to establish his policy, he advanced in his work with his accustomed industry and perseverance. The outlines of that policy were substantially portrayed in his speeches in the Federal Convention, in his letter to General Washington from New York during the session of that body, and in a paper written by him after its adjournment, and now published by his son,—all of which have already been referred to. It was founded on a conviction, doubtless sincere and at all events not liable to change, that great danger to the federal system was to be apprehended from the hostility of the State governments, and on a consequent desire to reduce their power and importance; on an immovable distrust of the capacities and dispositions of the masses; and on an unshaken belief that the success of the new government could only be secured by assimilating its action to that of the English system as nearly as that could be done without too gross, and therefore dangerous, violation of the well understood and most cherished sentiments of the people.
The power wielded by the English ministry, in Parliament and in the country, springs from influences derived from various sources, mainly from the funding system, from the Bank of England, from connection with the East India Company, and from ability to confer government favors on individuals and classes in the shape of offices and dignities in church and state, of titles, pensions, bounties, franchises, and other special privileges of great value. Its power in these respects is derived from the crown in virtue of its prerogatives, aided by acts of Parliament where these are required by the Constitution.