General Washington's account from June, 1775, to the end of June, 1783, 16311 17 1 Mrs. Washington's travelling expenses in coming to the general and re- 1717 5 4 213 8 4 1064 1 0 1. 19,306 11 9 Lawful money of Virginia, the same as Massachusetts, or sterling, l. 14,479 18 9 3-4 "The general entered in his book-"I find upon the final adjustment of these accounts, that I am a considerable loser, my disbursements falling a good deal short of my receipts, and the money I had upon hand of my own: for besides the sums I I carried with me to Cambridge in 1775, I received monies afterwards on private account in 1777, and since, which (except small sums, that I had occasion now and then to apply to private uses) were all expended in the public service: through hurry, I suppose, and the perplexity of business, (for I know not how else to account for the deficiency) I have omitted to charge the same, whilst every debit against me is here credited." July 1st, 1783. NOTE-No. III. The year 1784 had nearly passed away before the determination of the British cabinet not to evacuate the western posts was known to the government of the United States. In the spring of that year, General Knox, who commanded the troops still retained in the service of the United States, was directed to "open a correspondence with the Commander-in-chief of his Britannic majesty's forces in Canada, in order to ascertain the precise time when each of the posts within the territories of the United States then occupied by the British troops should be delivered up." The measures produced by this resolution exhibit a curious specimen of the political opinions on the subject of federal powers, which then prevailed in congress. It being at that time believed that the British garrisons would certainly be withdrawn, it became necessary to provide for occupying the posts when surrendered, with troops belonging to the United States. A number deemed sufficient for the purpose not having been retained in service, a motion was made for raising seven hundred men, by requisitions on the states for that and other objects specified in the resolution. The power of congress to make these requisitions was seriously contested, and it was gravely urged that such a power, connected with the rights to borrow money, and to emit bills of credit, would be dangerous to liberty, and alarming to the states. The motion for raising this small number of regulars did not prevail; and an order was made that except twenty-five privates to guard the stores at fort Pitt, and fifty-five to guard those at West Point and other magazines, with a proportionable number of officers, no one to exceed the rank of captain, the troops already in service should be discharged, unless congress, before its recess, should dispose of them in some other manner. For the purpose of garrisoning the posts, seven hundred militia were required from Connecticut, New York, New Jersey and Pennsylvania, who should serve twelve months. While the discussions on this subject were pending, instructions from the legislature of New York to their delegates were laid before congress, requesting that body in terms of great strength, in pursuance of the confederation, to declare the number of troops of which the garrisons of those posts which were within the limits of that state should consist. The resolutions asserted a constitutional right to demand from congress a declaration upon this point, and avowed a determination to raise the troops should such declaration be withheld. After the determination of the British government not to surrender the posts was known, the militia ordered to be raised to garrison them, who were not in actual service, were discharged. NOTE-No. IV. In the formation of this treaty, a question came on to be considered and decided which involved a principle that on an after occasion, and in a different case, excited a ferment never to be forgotten by those who took an active part in the politics of the day. The whole commerce of the Creek nation was in the hands of M'Gillivray, who received his supplies from a company of British merchants, free from duty, through the territories belonging to Spain. This circumstance constituted no inconsiderable impediment to the progress of the negotiation. M'Gillivray derived emoluments from the arrangement which he would not consent to relinquish; and was not without apprehensions, that Spain, disgusted by his new connexions with the United States, might throw embarrassments in the way of this profitable traffic. In addition to this consideration, it was, on the part of the United States, desirable to alter the channel through which the Indians should receive their supplies, and thereby to render them more dependent on the American government. But it would be necessary to exempt the goods designed for the Indian nation from the duties imposed by law on imported articles, and the propriety of such an exemption might well be questioned. With that cautious circumspection which marked his political course, the president took this point into early consideration, and required the opinion of his constitutional advisers respecting it. The secretary of state was of opinion that the stipulation for importing his goods through the United States, duty free, might safely be made. "A treaty made by the president with the concurrence of two-thirds of the senate, was,” he said, "a law of the land," and a law of superior order, because it not only repeals past laws, but can not itself be repealed by future ones. The treaty then will legally control the duty act, and the act for licensing traders in this particular instance. From this opinion there is no reason to suppose that any member of the cabinet dissented. A secret article providing for the case was submitted to the senate, and it has never been understood that in advising and consenting to it, that body was divided. NOTE-No. V. This question was investigated with great labour, and being one involving principles of the utmost importance to the United States, on which the parties were divided, the subject was presented in all the views of which it was susceptible. A perusal of the arguments used on the occasion would certainly afford much gratification to the curious, and their insertion at full length would perhaps be excused by those who recollect the interest which at the time was taken in the measure to which they related, and the use which was made of it by the opponents of the then administration; but the limits prescribed for this work will not permit the introduction of such voluminous papers. It may however be expected that the outline of that train of reasoning with which each opinion was supported, and on which the judgment of the president was most probably formed, should be briefly stated. To prove that the measure was not sanctioned by the constitution, the general principle was asserted, that the foundation of that instrument was laid on this ground, "that all powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states or to the people." To take a single step beyond the boundaries thus specially drawn around the powers of congress, is to take possession of a boundless field of power, no longer susceptible of definition. The power in question was said not to be among those which were specially enumerated, nor to be included within either of the general phrases which are to be found in the constitution. The article which contains this enumeration was reviewed; each specified power was analysed; and the creation of a corporate body was declared to be distinct from either of them. The general phrases are, 1st. To lay taxes to provide for the general welfare of the United States. The power here conveyed, it was observed, was "to lay taxes," the purpose was "the general welfare." Congress could not lay taxes adlibitum, but could only lay them for the general welfare; nor did this clause authorize that body to provide for the general welfare otherwise than by laying taxes for that purpose. 2dly. To make all laws which shall be necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank, therefore, is not necessary, and consequently not authorized by this phrase. It had been much urged that a bank would give great facility or convenience in the collection of taxes. Suppose this were true; yet the constitution allows only the means which are necessary, not those which are convenient. If such a latitude of construction be allowed this phrase, as to give any non-enumerated power, it will go to every one; for there is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the list of enumerated powers, and reduce the whole to one phrase. Therefore it was that the constitution restrained them to necessary means, that is to say, to those means without which the grant of the power must be nugatory. The convenience was then examined. This had been stated in the report of the secretary of the treasury to congress, to consist in the augmentation of the circulating medium, and in preventing the transportation and retransportation of money between the states and the treasury. The first was considered as a demerit. The second, it was said, might be effected by other means. Bills of exchange and treasury drafts would supply the place of bank notes. Perhaps indeed bank bills would be a more convenient vehicle than treasury orders; but a little difference in the degree of convenience can not constitute the necessity which the constitution makes the ground for assuming any non-enumerated power. Besides, the existing state banks would, without doubt, enter into arrangements for lending their agency. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one. It may be said that a bank whose bills would have a currency all over the states, would be more convenient than one whose currency is limited to a single state. So it would be still more convenient that there should be a bank whose bills should have a currency all over the world; but it does not follow from this superior conveniency, that there exists any where a power to establish such a bank, or that the world may not go on very well without it. For a shade or two of convenience, more or less, it can not be imagined that the constitution intended to invest congress with a power so important as that of erecting a corporation. In supporting the constitutionality of the act, it was laid down as a general proposition, "that every power vested in a government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the constitution, are not immoral, are not contrary to the essential ends of political society. This principle, in its application to government in general, would be admitted as an axiom; and it would be incumbent on those who might refuse to acknowledge its influence in American affairs to prove a distinction; and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States. The circumstance that the powers of sovereignty are divided between the national and state governments, does not afford the distinction required. It does not follow from this, that each of the portions of power delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it, that each has sovereign power as to certain things, and not as to other things. If the government of the United States does not possess sovereign power as to its declared purposes and trusts, because its power does not extend to all cases, neither would the several states possess sovereign power in any case; for their powers do not extend to every case. According to the opinion intended to be combated, the United States would furnish the singular spectacle of a political society without sovereignty, or a people governed without a government. If it could be necessary to bring proof of a proposition so clear as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause in the constitution which is decisive. It is that which declares the constitution of the United States, the laws made in pursuance of it, and the treaties made under its authority to be the supreme law of the land. The power which can create the supreme law in any case, is doubtless sovereign as to such case. This general and indisputable principle puts an end to the abstract question, whether the United States have power to erect a corporation : for it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government. The difference is this; where the authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only in those cases. That the government of the United States can exercise only those powers which are delegated by the constitution, is a proposition not to be controverted; neither is it to be denied on the other hand, that there are implied as well as express powers, and that the former are as effectually delegated as the latter. For the sake of accuracy it may be observed, that there are also resulting powers. It will not be doubted that if the United States should make a conquest of any of the territories of its neighbours, they would possess sovereign jurisdiction over the conquered territory. This would rather be a result of the whole mass of the powers of the government, and from the nature of political society, than a consequence of either of the powers specially enumerated This is an extensive case in which the power of erecting corporations is either implied in, or would result from some or all of the powers vested in the national government. Since it must be conceded that implied powers are as completely delegated as those which are expressed, it follows that, as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers as any other instrument or mean whatever. The question in this as in every other case must be, whether the mean to be employed has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be created by congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city; but one may be created in relation to the collection of the taxes, or to the trade with foreign countries, or between the states, or with the Indian tribes, because it is in the province of the federal government to regulate those objects; and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation, to the best and greatest advantage. A strange fallacy seems to have crept into the manner of thinking and reasoning upon this subject. The imagination has presented an incorporation as some great, independent, substantive thing-as a political end of peculiar magnitude and moment; whereas it is truly to be considered as a quality, capacity, or mean to an end. Thus a mercantile company is formed with a certain capital for the purpose of carrying on a particular branch of business. The business to be prosecuted is the end. The association in order to form the requisite capital is the primary mean. Let an incorporation be added, and you only add a new quality to that association which enables it to prosecute the business with more safety and convenience. The association when incorporated still remains the mean, and can not become the end. To this reasoning respecting the inherent right of government to employ all the means requisite to the execution of its specified powers, it is objected, that none but necessary and proper means can be employed; and none can be necessary, but those without which the grant of the power would be nugatory. So far has this restrictive interpretation been pressed as to make the case of necessity which shall warrant the constitutional exercise of a power, to depend on casual and temporary circumstances; an idea, which alone confutes the construction. The expedience of exercising a particular power, at a particular time, must indeed depend on circumstances, but the constitutional right of exercising it must be uniform and invariable. All the arguments, therefore, drawn from the accidental existence of certain state banks which happen to exist to-day, and for aught that concerns the government of the United States may disappear to-morrow, must not only be rejected as fallacious, but must be viewed as demonstrative that there is a radical source of error in the reasoning. But it is essential to the being of the government that so erroneous a conception of the meaning of the word necessary should be exploded. It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say that it is necessary for a government or a person to do this or that thing, where nothing more is intended or understood than that the interests of the government or person require, or will be promoted by doing this or that thing. This is the true sense in which the word is used in the constitution. The whole turn of the clause containing it indicates an intent to give by it a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness. |