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 and general welfare," unless we were so to understand the proposition containing them, made on August 25th, 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 and 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 state; and as its general impotency became manifest. Examples of departure from the prescribed rule are too well known to require proof. The case of the old Bank of North 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 the 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.

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 North America," in which he endeavored to derive the power from the nature of the Union, in which the colonies were declared and 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 and 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 controlled by the article declaring that each state retained all powers not granted by the Articles, because "the individual states never possessed, and could not retain, a general power over the others."

The authority and argument here resorted to, if proving the ingenuity and patriotic anxiety of the author, on one hand, show sufficiently, on the other, that the term "common defence and general welfare" could 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 possibilty of belief, that the known advocates, in the Convention, for a jealous grant and cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and 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 and proper to carry these powers into execution—all such provisions and laws superseding, at the same time, all local laws and 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 and 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, through their conventions, accepted and ratified it. Aud 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 strenuous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.

Without recurring to the published debates of those 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 list of amendments proposed by such of the conventions as considered the powers granted to the government too extensive, or not safely defined.

Besides the restrictive and explanatory amendments to the text of the Constitution, it may be observed, that a long list was premised under the name and in the nature of "Declarations of Rights;" all of them iudicating 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 and 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, which they deemed requisite. Of these amendments. nine were proposed by the Convention of Massachusetts, five by that of South Carolina, twelve by that of New Hampshire, twenty by that of Virginia, thirtythree by that of New York, twenty-six by that of North Carolina, and twentyone by that of Rhode 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 power granted by them to the general government, by explanations, restrictions, or prohibitions, without including a single proposition from a single state referring to the terms "common defence and 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 unnoticed by the many eyes which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and 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 Congress, when the subjects of amendment were 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 Congress show 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 and silence on such an occasion, and among so many members who belonged to the part of the nation which called for explanatory and restrictive amendments, and who had been elected as known advocates for them, cannot be accounted for without supposing that the terms "common defence and 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 October 5, 1787, to Samuel Adams, and another, of October 16, of the same year, to the governor of Virginia, from R. H. Lee, in both of 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, although a member of the Senate of the United States, when amendments to the Constitution were before that house, and sundry additions and 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, and before it had been fully discussed and 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 against it.

Note. Against the opinion of Mr. Madison, there are the opinions of men of great eminence; and among these may be enumerated Presidents Washington, Jefferson, and Monroe, and Mr. Hamilton.,

MADISON'S LETTER

ON THE

CONSTITUTIONALITY OF THE BANK OF THE UNITED STATES;

Dated MONTPELIER, June 25, 1831.

DEAR SIR: I have received your friendly letter of the 18th inst. The few lines which answered your former one, of the 21st of January last, were written in haste and in bad health; but they expressed, though without the attention in some respects due to the occasion, a dissent from the views of the President, as to a Bank of the United States, and a substitute for it; to which I cannot but adhere. The objections to the latter have appeared to me to preponderate greatly over the advantages expected from it, and the constitutionality of the former I still regard as sustained by the considerations to which I yielded, in giving my assent to the existing bank.

The charge of inconsistency between my objection to the constitutionality of such a bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions.

Some obscurity has been thrown over the question, by confounding it with the respect due from one legislature to laws passed by preceding legislatures. But the two cases are essentially different. A Constitution, being derived from a superior authority, is to be expounded and obeyed, not controlled or varied by the subordinate authority of a legislature. A law, on the other hand, resting on no higher authority than that possessed by every successive legislature, its expediency, as well as its meaning, is within the scope of the latter.

The case in question has its true analogy in the obligation arising from judicial expositions of the law on succeeding judges, the Constitution being a law to the legislator, as the law is a rule of decision to the judge.

And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, 1. Because it is a reasonable and established

axiom, that the good of society requires that the rules of conduct of its members should be certain and known; which would not be the case if any judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera est servitus ubi jus est aut vagum aut incognitum. 2. Because an exposition of the law publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sauction of those who, having made the law through their legislative organ, appear, under such circumstances, to have determined its meaning through their judiciary organ.

Can it be of less consequence that the meaning of a Constitution should be fixed and known, than that the meaning of a law should be so? Can, indeed, a law be fixed in its meaning and operation, unless the Constitution be so? On the contrary, if a particular legislature, differing, in the construction of the Constitution, from a series of preceding constructions, proceed to act on that difference, they not only introduce uncertainty and instability in the Constitution, but in the laws themselves; inasmuch as all laws preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning.

But it is said that the legislator, having sworn to support the Constitution, must support it in his own construction of it, however different from that put on it by his predecessors, or whatever be the consequences of the construction. And is not the judge under the same oath to support the law? Yet has it ever been supposed that he was required, or at liberty, to disregard all precedents, however solemnly repeated and regularly observed, and, by giving effect to his own abstract and individual opinions, to disturb the established course of prac tice in the business of the community? Has the wisest and most conscientious judge ever scrupled to acquiesce in decisions in which he has been overruled by the matured opinions of the majority of his colleagues, and subsequently to conform himself thereto, as to authoritative expositions of the law? And is it not reasonable that the same view of the official oath should be taken by a legislator, acting under the Constitution, which is his guide, as is taken by a judge, acting under the law, which is his?

There is, in fact, and in common understanding, a necessity of regarding a course of practice, as above characterized, in the light of a legal rule of interpreting a law; and there is a like necessity of considering it a constitutional rule of interpreting a constitution.

That there may be extraordinary and peculiar circumstances controlling the rule in both cases, may be admitted; but with such exceptions, the rule will force itself on the practical judgment of the most ardent theorist. He will find it impossible to adhere to, and act officially upon, his solitary opinions, as to the meaning of the law or Constitution, in opposition to a construction reduced to practice during a reasonable period of time; more especially where no prospect existed of a change of construction by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, although the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continued changes in the import of words and phrases.

Let it, then, be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on for the true and safe construction of the Constitution:- that which has the uniform sanction of successive legislative bodies through a period of years, and under the varied ascendency of parties; not that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favorite object, or led away by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes.

It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It

had been carried into execution through a period of twenty years, with annual legislative recognition,-in one instance, indeed, with a positive ramification of it into a new state, and with the entire acquiescence of all the local author ities, as well as of the nation at large; to all of which may be added, a decreas ing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive, under these circumstances, with an admission of the expediency, and almost necessity, of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intentions.

It has been contended that the authority of precedents was, in that case, invalidated by the consideration, that they proved only a respect for the stipulated duration of the bank, with a toleration of it until the law should expire, and by the casting vote given in the Senate by the Vice-President, in the year 1811, against a bill for establishing a national bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated And as to the negative of the Senate by the casting vote of the presiding officer, it is a fact, well understood at the time, that it resulted, not from an equality of opinions in that assembly on the power of Congress to establish a bank, but from a junction of those who admitted the power, but disapproved the plan, with those who denied the power. On a simple question of constitutionality there was a decided majority in favor of it.

MR. INGERSOLL.

JAMES MADISON.

HAMILTON'S ARGUMENT

ON THE

CONSTITUTIONALITY OF A BANK OF THE UNITED STATES. FEBRUARY, 1791.

[EXTRACTS.]

It remains to show, that the incorporation of a bank is within the operation of the provision which authorizes Congress to make all needful rules and regulations concerning the property of the United States. But it is previously necessary to advert to a distinction which has been taken up by the attorneygeneral. He admits that the word property may signify personal property, however acquired; and yet asserts that it cannot signify money arising from the sources of revenue pointed out in the Constitution, "because," says he, "the disposal and regulation of money is the final cause for raising it by taxes." But it would be more accurate to say that the object to which money is intended to be applied is the final cause for raising it, than that the disposal and regulation of it is such. The support of a government, the support of troops for the common defence, the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to the ends for which it was raised, not the ends themselves. Hence, therefore, the moneys to be raised by taxes, as well as any other persona! property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning the property of the United States. A case will make this plainer. Suppose the public debt discharged, and the funds now pledged for it liberated. In some instances, it would be found expedient to repeal the taxes; in others, the repeal might injure our own industry — our agriculture and manufactures. In these cases, they would, of course, be retained. Here, then, would be moneys, arising from the authorized sources of revenue, which would not fall within the rule by which the attorney-general VOL. IV. 78