CHAPTER VIII

SUMMONING THE GENII OF THE IMPLIED POWERS

Even before the executive part of the new Government had been initiated,

Congress attacked the most serious problem it had received from its

predecessor. All were agreed that the chief difficulty in carrying on

the Revolutionary War had been the lack of sufficient funds. The

administration of the Articles of Confederation had been hampered

constantly by the same need. The nation was even now millions upon

millions of dollars in debt. In order to pay the interest on the French

and Spanish loans it had been the custom for several years to borrow

more money from the Dutch bankers. This was accomplished with no little

difficulty. From the same source John Adams had secured funds with

which to install the Government under the Constitution. The

President-elect had been compelled to borrow money from a neighbour

at Alexandria to meet the expenses of his journey to the capital to

be inaugurated.

Public credit both at home and abroad was in ill-repute. To meet the

foreign interest and installments due in 1789, over four million dollars

must be raised. "Not worth a continental," sighed the merchant as he

turned over a heap of depreciated Continental currency in a corner of

his strong box. "Acknowledgment to pay by the 'untied States,'" said

the owner of a pile of worthless United States certificates of

indebtedness. His patriotic zeal in lending money to the National

Government in her hour of need now bade fair to ruin him. The veteran

of the Revolutionary War carried his half-pay certificate to the

money-lender, glad to get even five shillings in the pound for it.

Holders of various forms of State indebtedness besieged their State

authorities for payment, rapidly approaching a point where they would

welcome any agency which would get them their due.

According to Madison, the Continental Congress had chosen such an

unseasonable date as the first Wednesday in March for beginning the

new Government in the hope of levying a duty at once which would catch

the spring importations of goods from Europe. It was this purpose which

brought him to his feet in the House of Representatives on the eighth

day of the first session to introduce a subject which he declared to

be of the first magnitude, and one that required their first attention

and their united exertions. This was the deficiency in the national

treasury. For a remedy, he had chosen an impost on certain imported

goods.

Fortunately, an impost was not a novelty requiring time and instruction

to secure. Imposts had been instituted generations before to obtain

funds for clearing the seas of pirates and for making safe the merchant

marine. Because of these laudable objects, imposts had come to be

regarded as a legitimate form of external taxation and as a means of

raising a revenue to meet the expenses of government. The American

people had been familiar with imposts from colonial times; they had

been commonly levied by individual States since independence; and they

had been associated in thought with the National Government in the

vain attempts to revise the Articles by giving it this method of raising

a revenue. "To lay and collect imposts" was indisputably stated in the

Constitution as a power of the Federal Government. All that was

necessary to do was to determine what goods should be liable to a duty

and what the amount of duty should be.

Madison submitted for specific duties a fixed list of articles, which

the Congress had determined upon in 1783, at the time it was requesting

the States to allow it to collect a duty. The list was made up of rum,

molasses, wine, tea, pepper, sugar, cocoa, and coffee. These were

regarded at the time as luxuries likely to be consumed by those able

to pay the duty. Other imported articles were to have an ad valorem

duty. Madison had in mind, as he said, a productive tariff to secure

money for the bankrupt national treasury. If more money was needed,

the rates could be raised at any time. But early in the debate a member

from Pennsylvania moved an amendment adding a number of articles to

the specified list. They included beef, butter, candles, soap, boots,

steel, cordage, nails, salt, tobacco, paper, hats, shoes, coaches, and

spices. "Among these," said he, in explaining his motion, "are some

calculated to encourage the productions of our country and protect our

infant manufactures." At once, members from States which did not produce

these articles protested that the addition of an impost would keep out

foreign competition and make them pay higher prices for the goods.

Other members from States which produced articles in neither list were

equally urgent in getting their special products added. The tradesmen,

manufacturers, and others of Baltimore sent in a petition "to the

supreme Legislature of the United States as the guardians of the whole

empire," begging them to impose on all foreign articles, which were

made in America, such duties as would give a just preference to their

labours. The shipwrights of Charleston in a petition pictured their

distress under the present condition of trade and begged relief by

proper legislation. Petitions soon followed from coach-makers,

soap-boilers, snuff-grinders, makers of mathematical instruments,

manufacturers of sheepskin trousers--in fact, nearly every form of

industry wished to take advantage of this opportunity to secure national

where they had formerly been able to get only local protection. The

members of Congress described in their letters to friends the fish

battles, the salt battles, and other manifestations in legislative

halls of the cupidity of mankind when opportunity is once presented.

In this way it came about that the first revenue measure in the first

session of the first efficient National Legislature brought the members

face to face with the question of the purpose for which government

exists. The Declaration of Independence had declared it to be the

securing of certain inalienable rights with which men are endowed by

their Creator. This French conception of certain abstract and general

rights had taken in British and colonial minds the very concrete shape

of property. It is scarcely just to say that even unconsciously the

British people had instituted government for the protection of property

and invested interests; but it is within the bounds of truth to say

that a large part of the legislation of Parliament, in the formative

days of the American colonies, had been inaugurated with this end in

view. With the abuses of the monopolies granted by the mother country,

the colonists were only too familiar. But the principle had been

inherited, and it had been put into practice in the shape of legislative

aid granted by colonial assemblies for the inauguration of various

commercial and manufacturing enterprises. Sometimes this assistance

had taken the form of money; at other times, of a patent or monopoly

granted for a number of years. Petitions for such aid had been presented

to the Continental Congress at various times. It was not strange that

they should appear in the new Congress, as has just been described.

Political parties had not yet been developed, but the debates on this

first tariff bill showed a strong tendency to sectionalism, arising

from the varied interests of an extensive territory. It was a

sectionalism which, if it prevailed, would tend to weaken the Central

Government, but, if overcome by compromise or force, would strengthen

the national authority by the very fact of the victory. At the time

the differences of opinion arising from the various parts seemed so

irreconcilable that Madison frequently confessed his despair of getting

any tariff measure passed at the session; so early did the sectional

interests appear, which were destined later to threaten seriously the

very existence of the Union.

If the distillers of Philadelphia, for example, petitioned for a greater

discrimination in the duties on rum and on molasses, the citizens of

Portland, then in Massachusetts, assured Congress that any duty on the

latter commodity would operate injuriously and be attended with

pernicious consequences to all the New England States. Once entered

upon, this protective policy could not be stopped. By mutually aiding

each other, members could get articles added to the protected list

more easily than the unorganised opposition could keep them out. By

comparing such co-operation with the united efforts by which the first

settlers had cleared their fields, the phrase "log-rolling" was

invented. Thus it happened that the first import bill, intended by

Madison as a measure for raising revenue, was turned virtually into

a protective-tariff measure, and was so called in the preamble. Few

realised the importance of the change at the time. Madison called it

the "collective" bill, and wrote to a friend that it had cost much

trouble to adjust its regulations to the varied geographical and other

circumstances of the States. However unconsciously done, the principle

of protective-tariff legislation by the National Government had been

adopted.

It is prophetic of the future to note that in this first debate a

difference of opinion was shown to exist concerning the proper function

of government. One speaker cited the history of the ancient world to

prove that the protection of industries and the establishment of

manufactures was a very proper aim of government. Others held to a

contrary opinion. Madison was among those who thought that business

should be left to take its natural course without government

interference. He said:

"I own myself the friend to a very free system of commerce and to hold

it as a truth that commercial shackles are generally unjust, oppressive,

and impolitic; it is also a truth that if industry and labour are left

to take their own course, they will generally be directed to those

objects which are the most productive, and this in a more certain and

direct manner than the wisdom of the most enlightened legislature could

point out."

This was the voice of the country member, unaccustomed to the fostering

hand of government. It was also the voice of the minority. The

Constitution had been framed and adopted by the commercial interests

generally, who took quite an opposite view of the duty of government

toward business.

No one at this time seemed to feel the potency of the protective

principle in enlarging the power of the Union. It was unseen until

fully developed some thirty years later. Yet to appreciate the full

force of this tariff bill of July 4, 1789, with its protective preamble,

as a sample of Union-making legislation, one need only consider the

gratitude which the National Government has won through such protective

measures; the attachment of leading men to the Union from guarding

their interests; the accumulated strength of moneyed interests in time

of danger to the Republic; the use made of the tariff in protecting

workingmen; the revenue derived from high tariffs, which has been spent

on public improvements; and the force of public opinion which has been

frequently rallied by both employer and employee to the support of the

execution of a national revenue law.

Above all members of the first administration, Hamilton stood for an

efficient National Government. He saw opportunity in the administration

and interpretation of the written document to correct the weak places

which he had sought in vain to avoid when the frame was being made.

A constructive genius by birth, a financier by study, a leader of men

by nature, Hamilton had, in the Treasury Department, that function of

the new Government which needed the most strengthening, and in its

present condition the necessity which would support the strongest

measures. Called upon by Congress at the time of its first adjournment

to inform them of the exact financial condition of the country, he

drew up an exhaustive report showing that the National and State

governments together owed something like fifty-two millions of dollars.

The national obligation to-day is twenty times that sum. Its proportion

to eighty millions of people is not much less than the fifty-two

millions were to the three and a half millions of people who faced the

debt of Hamilton's time. But the debt now is of fixed form and assured

payment before it is incurred. The debt which Hamilton presented to

Congress was heterogeneous in form and without means of payment. Arguing

that a national debt properly funded had contributed largely to the

prosperity of Great Britain, Hamilton proposed to collect all these

evidences of debt into a national obligation, which would bring interest

to its holders until paid. The faith of the United States toward its

creditors must be redeemed. To secure a revenue with which to pay this

interest and evidently to redeem the principal in addition to meeting

the running expenses of the Government was the first task. Hamilton

proposed to place additional duties on imported goods and to lay a

tonnage on vessels using American ports, the latter of which he

estimated would yield more than a million dollars. He would also put

an excise on distilled spirits manufactured in the United States and

on those imported, both bringing in nearly three million dollars. The

profits of the post-office he estimated at almost a million dollars

annually, to be applied also to the national expenses.

[Illustration: CERTIFICATE OF DEBT AGAINST THE UNITED STATES. From the

Manuscript Division of the Library of Congress. This was one of the

Revolutionary obligations assumed and paid under Hamilton's financial

measures.]

The members of Congress, at the subsequent session, with remarkable

unanimity, concurred in these recommendations of the Secretary of the

Treasury for the redemption of the national obligations, including

both the debt owed to foreign nations and that incurred to domestic

holders during the exigencies of the war. But upon another proposition,

that the United States should assume the debts incurred by the several

States during the war, there was strong opposition. It was said that

such action would lead to speculation and stock-jobbery in buying up

these debts and converting them into new forms. The original holders

had long since disposed of them to brokers, who would be enriched by

national legislation. It was the old clash between the moneyed and the

moneyless classes. Although the action would be a direct interference

of the National Government with State affairs, the debates turned on

economic rather than constitutional grounds. If Hamilton had the

foresight with which he is credited by his admirers, if he saw that

the allegiance of the people would gradually be won away from the

States to the Central Government because the latter was redeeming

promises which the States had long been endeavouring to meet, if he

was taking advantage of the selfishness and cupidity of the deeply

indebted States, there is no evidence to show that the States saw or

appreciated the danger.

Virginia, whose representatives bore the brunt of the opposition, had

a source of revenue in her western lands from which she could easily

discharge her obligations, and naturally had no desire to share the

liabilities of others. But her State Legislature, after Hamilton agreed

with Jefferson to buy off the Virginia opposition in Congress by

locating the national capital on the Potomac, protested in strong and

exact terms against the State-debts-assumption proposition. These

resolutions recited that the people of Virginia had adopted the Federal

Constitution under the impression and upon positive condition that

"every power not granted was retained," and that they had read the

document in vain to find the right given to assume the debts of the

States. Here, within two years after the adoption of the Constitution,

was a State Legislature protesting against the usurpation of power

under it. It was the first of many futile protests.

Hamilton, sending a copy of the Virginia resolutions to Jay, saw "the

first symptom of a spirit which must either be killed or will kill the

Constitution of the United States." He thought the collective weight

of the different parts of the Government ought to be employed in

exploding the principles they contained. Theoretically, the Legislature

of Virginia may have been correct in its attitude; but no theoretical

protest could avail against the worthy sentiment that the entire

national credit must be restored, backed by the practical demands of

the creditors, and by the desires of those who saw an opportunity of

investment or speculation.

Those people, both officials and citizens, who took the stand in these

formative days of political parties that the Federal Government should

be restricted in its workings to the powers expressly given to it in

the Constitution, a "strict construction" of that document, as they

called it, were generally country bred, of the borrowing rather than

the lending class, depending upon individual initiative rather than

mass action, strangers to the paternal aspects and fostering hand of

government, and inexperienced in the intricacies of finance. Gen. Henry

Lee, of Virginia, complained to Madison of the complexity of Hamilton's

plan. "It departs," replied Madison, "from that simplicity which ought

to be preserved in finance more than anything else." Inability to

comprehend naturally breeds suspicion.

Hamilton's followers were, for the most part, from the Northern and

Middle States, city dwellers, money-lenders rather than borrowers,

business men, and manufacturers, who saw no wrong in having the

Government promote the general welfare by legislation. The sudden

revival of business which followed the adoption of Hamilton's plan to

redeem all the debts seemed to them both natural and legitimate. The

other group looked upon the entire matter as a corrupt transaction,

contrived by Hamilton, and a prostitution of government from its

legitimate purposes. Madison wrote that just before the report came

out the value of the various forms of debt rose from a few shillings

to eight or ten shillings in the pound, and that emissaries were still

exploring the interior and distant parts of the Union in order to take

advantage of the ignorance of the holders. To meet the occasion

Jefferson invented the phrases, "corrupt squadron," "stock-jobbing

herd," and "votaries of the treasury," upon which he rang the changes

during a long lifetime.

To this indignation was added dismay when the effects of national

assumption of State obligations began to be appreciated; when creditors

who had besieged the State treasury for years found the Union satisfying

their just demands; when the evidences of national government, which

had heretofore been confined to a wandering Congress, began to appear

at every hearthstone. A realisation of these results brought from

Jefferson the complaint that he had been duped by Hamilton in the

assumption-capital bargain; that he had been "most innocently and most

ignorantly made to hold the candle for a wicked scheme."

A similar aggrandisement of the National Government was the motive,

according to the eulogists of Hamilton, which prompted him to make a

suggestion for another novelty, a United States bank. Ostensibly he

claimed that it would have the effect of bringing immediate financial

relief, as well as safeguarding the future. The arguments presented

by him to Congress for the incorporation of a bank in which the National

Government should be a stockholder were purely utilitarian. The bank

would benefit the public by offering an opportunity for the investment

of capital. It would benefit the Government by lending it money in an

emergency and by collecting its revenues. Its notes would also form

a circulating medium. The bill drawn by Hamilton incorporating such

a bank passed the Senate without material change and without a division.

One Senator from Pennsylvania, suggesting amendments to his colleague,

was informed that Hamilton's father-in-law, a Senator from New York,

had said Hamilton did not wish the bill altered. The hopeless minority

in the Senate claimed that the chances of subscribing to the proposed

bank, guaranteeing an investment at six per cent, for twenty years,

won many to its support. They also saw here another link in the chain

which Hamilton was welding about the States. The debts having been

assumed, the certificates would be accepted as subscriptions to bank

stock. Thus one measure would be made to play into another.

In the House, the right of the Federal Government to found a bank was

attacked by Madison, who here parted from Hamilton, with whom he had

laboured in getting the Constitution adopted. The line-up of parties

had begun. Madison found himself opposed to the way in which the

Government was being perverted by Hamilton under the Constitution. His

speech is the first extensive exposition of the doctrine of strict

construction of the written instrument; that the central power must

be held strictly to the powers numerated in the document. Strict

construction exhibits the vice of a written Constitution--the

impossibility of growth or even continued life within the bonds of the

written word. Stagnation and death must result from binding the limbs

of the body politic. Loosening by interpretation is the remedy. Madison

was correct in saying that the right to incorporate bodies was proposed

in the Philadelphia Convention and abandoned; that the power to

incorporate a bank was nowhere given in the Constitution to the Federal

Government; that banking was presumed to be a matter for State control;

that in all the debates and papers written on the Constitution it was

understood that "the powers not given were retained; and that those

given were not to be extended by remote implications."

In reply, Boudinot did not deny that all powers, vested heretofore in

any individual State, and not granted by this instrument, were still

retained by the people of such State and could not be exercised by

Congress. But he then showed that the power to incorporate the bank

was "drawn by necessary implication" from those expressed. The preamble

declared in general terms the objects of the Constitution; one of the

expressed functions under it was "to borrow money"; and the circle was

completed by the liberal clause to "make all laws necessary and proper

for carrying into execution the foregoing powers." Now to provide for

the general welfare it might be necessary to borrow money; a bank was

essential to the borrowing of money in adequate sums; therefore the

power to establish a bank was deduced by the strongest and most decisive

implication.

Here was the first complete exposition of the doctrine of a loose

construction for the wording of the Constitution. If that be correct

reasoning, said the opposition, the Constitution may as well stop with

the preamble, since there is no power under heaven which could not be

exercised within its limits. It would mean the consolidation of all

powers, and the practical extinction of local government. The attitude

of the two sides in the debate may be shown by one illustration

employed. Suppose the power to make a treaty or to raise an army had

been omitted from the Constitution, asked the Hamiltonians, could the

National Government in an emergency assume such rights from the preamble

and the powers expressed? Must it hesitate and temporise while the

blood of its citizens was being shed? Such an assumption of power,

replied the strict interpreters, might be excusable in an emergency,

but could be warranted as a practice only by an amendment to the

Constitution made in the manner it prescribed.

The present situation and the compelling force which had produced it

were manifest when those who favoured giving the Union such implied

powers as would make it effective pointed out many instances of

implication of which Congress had already been guilty; such as accepting

land for lighthouses, defining crimes under power to establish courts,

and even creating corporations in the shape of the North-West and the

South-West territories. One of these lesions of the written word, that

which interpreted a clause so as to give the President power over

removals from office, Madison himself had favoured.

This first constitutional debate also outlined the geographical

sectionalism which has penetrated and influenced every feature of

American political as well as commercial and social life. The Northern

and Middle States contained the cities, made up of the trading class,

whose capital was chiefly in ready money. The capital of the rural

dwellers of the South was in land and slaves, not easily converted

into cash. The latter became the borrowing, the former the lending

section. The spirit of unionism was engendered in the first by reason

of their urban life, their commercial employment, and their frequent

contact in business. The feeling of individualism was as naturally

bred in the latter by their rural surroundings, their agricultural

occupation, and the self-reliance induced by their solitary environment.

The opposition to the Constitution in Massachusetts, Rhode Island, New

York, and Pennsylvania had been confined almost entirely to the country.

The rural States of Virginia, North Carolina, and South Carolina did

not adopt the new frame without a struggle. Georgia was a Southern

exception; but population dwelt so exclusively along the coast in the

new State of Georgia that it was really a commercial State, settled

largely by New Englanders.

The mercantile class of the Northern and Central States, after Anti-

Federalism had been silenced by the success of the new Government, was

ready to adopt the theory of loose construction or interpretation by

inclusion, which would tend toward the realisation of a more potent

union. At the same time, a bank, supported by the patronage of the

National Government, with no danger of competition for twenty years,

offered not only a security for capital against such dangers as it had

previously known, but also, through its branches, an extended agency

for transacting business. Many details of the bill, such as the

advantages given to holders of national rather than State certificates

in subscribing for stock, contributed to the sectional division. The

national certificates were held in the commercial centres. The influence

of the city of New York, where the Congress met, no doubt contributed

to the passage of the bank and other commercial measures.

Precisely the opposite feelings held in the Southern States. Every

vote cast in the House against the bank came from Maryland or a State

to the south of it. There were a few scattering votes from the Southern

States in favour of the measure, but as a whole political lines were

here unconsciously drawn for a century to come, if not for the entire

existence of the Republic. The "court and country" parties of colonial

days had been born again.

Many of the members were surprised to find sentiment toward these

financial measures assuming such a sectional trend. Sectional interests

had been only too manifest in the convention, but compromises had

settled them, presumably for ever. Compromise is only a relief; it is

never a remedy. After each compromise in American history it has been

a matter of surprise to the participants that others were needed. On

the bank bill, a member wrote to a correspondent: "You may think it

unaccountable, but so it is that the differences in climate seem to

govern the opinions on this bill, and Potomac seems to be near the

dividing line with few exceptions."

Virginia was the leader of the section south of the Potomac, and

Jefferson was the leader of Virginia. Although debarred from the

congressional debates by his Cabinet position, he filled his letters

to his friends with warnings against the dangerous assumptions of the

Hamilton measures. In response to Washington's inquiry to his Cabinet

upon the constitutionality of the bank, Jefferson drew up a paper

setting forth in strong terms his opinion that the Central Government

had no power to engage in business. Hamilton presented an equally

strong argument for the bank in his reply.

Madison, the leader of individualism in the House, could not agree

with Hamilton's interpretation of the "general welfare" clause of the

Constitution. The former co-labourers for efficient government parted

at this point. Madison thought the adoption of such an interpretation

would change the National Government from a limited one, possessing

certain specified powers, to an indefinite one, subject only to

particular exceptions. The phrase concerning "the general welfare" had

been taken from the Articles, he said, where it was understood to be

nothing more than a general caption to specified powers, and had been

retained because it was less liable to misconstruction than any other.

Whatever had been the original intent, the spirit of the implied powers

had been summoned from the vasty deep of uncertainty to aid in making

a confederated republic from confederated States.

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